DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

CONSUMER COMPLAINT No. 267 of 2013

Date of filing: 29.11.2013                                                           Date of disposal: 12.5.2016

Complainant:                         Mr. Ram Prasad Lall, S/o. Late Bhuneswar Lall, resident of Nilachal Colony, Saraidhela, Dhanbad.           

-VERSUS-

Opposite Party:        1.          The Mission Hospital (Durgapur), Iman Kalyan Sarani, Sector IIC, Bidhan Nagar, Durgapur – 713 212, Burdwan, West Bengal.        

    2.          Dr. Ajit J. Thomas, Consultant Urology, Mission Hospital (Durgapur), Iman Kalyan Sarani, Sector IIC, Bidhan Nagar, Durgapur – 713 212, Burdwan, West Bengal.

3.         Dr. Partha Pal, (Dy. Medical Superintendent), Mission Hospital (Durgapur), Iman Kalyan Sarani, Sector IIC, Bidhan Nagar, Durgapur – 713 212, Burdwan, West Bengal.

4.         Dr. Krishnendu Goswami (Plastic Surgeon), Mission Hospital (Durgapur), Iman Kalyan Sarani, Sector IIC, Bidhan Nagar, Durgapur – 713 212, Burdwan, West Bengal.

Proforma Opposite Party:

5.         Christian Medical College (Vellore), IDA Scudder Road, Vellore – 632 004, Tamil Nadu, India.

Present:   Hon’ble President: Asoke Kumar Mandal.

       Hon’ble Member:  Smt. Silpi Majumder.

      Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:                           Ld. Advocate, Debdas Rudra.

Appeared for the Opposite Party No. 1, 2 & 3:   Ld. Advocate, Deb Krishna Sinha.

Appeared for the Opposite Party No. 4:              Ld. Advocate, Nirmal Kumar Chakraborty.

J U D G M E N T

Introduction:

1. This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986, alleging medical negligence against the OPs.

Brief Fact:

2. The brief fact of the case of the complainant is that being a retired employee from BCCL, is residing at Dhanbad, Jharkhand. He was suffering from complications of blocked urinary stream and approached before The Mission Hospital–OP-1 for treatment of the said complications. The OP-2 being the consultant in the field of Urology advised him for an operation after being diagnosed with ‘Stricture Urethra’. As per advice of the OP-2 the complainant got admission at the OP-1 on 03.3.2013 where Cystoscopy and EIU were done under spinal anesthesia on 04.3.2013. Thereafter the complainant was shifted to the ward at the 7^th floor, bed no-4. After the operation the complainant felt very cold and as per advice of the OP-2 the ward-in-charge put hot water bag beneath both lower legs and covered the body with two blankets, but he was left uncared. As the complainant was under the effect of spinal anesthesia, he was not supposed to feel any pain or sensation in his lower limbs. When the complainant came out of anesthesia effect he started grimacing burn feeling under excruciating  pain in both lower legs and discovered that his both lower legs got severely burnt by the hot water bags which were put beneath his legs for neutralizing the cold effect after operation. The relative of the patient was never called after the operation was done but he was moved to the ward. When the complainant got senses in the legs he felt pain and called his relatives by himself from the cell phone of another patient. The OP-1 in order to escape itself from its liability of gross negligence causing serious burn injuries, dressed up the burn wounds on both the legs without informing the patient party. The matter was brought to the notice of the OP-2, who performed surgery, and subsequently the OP-2 and the Deputy Medical Superintendent Dr. Partha Pal–OP-3 visited the complainant. Thereafter the OP-4, Consultant Plastic Surgeon came at about 9 pm on 04.3.2013 and after seeing the burn injury he redressed the legs after removing the prior dress. The patient party met with the OP-3 & 4 who assured that the burn injuries were duly attended by them and the legs have been properly dressed and also conveyed that the situation is under control, nothing to worry. The complainant was discharged on 06.3.2013 after clearing the hospital dues including consultant visit for the burn injuries, dressing and other charges etc. Though the hospital authority was totally aware about the burn injuries and subsequent sufferings of the patient, no advice was given by the OP-1 regarding the treatment for burn injuries in the discharge summary. Only advice was given verbally for dressing of the burn wounds of both legs in alternative day using ointment namely ‘Silverex-A’, which according to the OP helps the injury to become normal. As per advice the complainant started to use the said ointment and dressing, but unfortunately there was no sign of any improvement over the burn injuries. On 11.3.2013 the complainant went again to the OP-1 for removal of catheter at the OPD of Urology where the OP-2 sent him to the emergency ward for dressing of the burn injuries after necessary conversation with the Dr. Debasish Ghosh of OP-1. During discussion the OP-2 informed the entire situation to Dr. Ghosh. Accordingly the complainant went to the emergency unit where the wounds were dressed up. However when the complainant sought to meet with Dr. Ghosh it was told to him that Dr. Ghosh was not available for the day. Then the complainant tried to meet the OP-3 but he was also not available. Though he wanted to meet the OP-4, Plastic Surgeon but it was ignored stating that the concerned surgeon was also not available and even the complainant could not fix any prior appointment with the OP-4. After dressing the complainant was given assurance that there was nothing serious in the burn injury. After one week of dressing the complainant and his family members noticed that the condition of the burn site were getting worse and accordingly they consulted a local surgeon on 17.3.2013 who immediately recommended a minor surgery on the burn wounds of both legs followed by regular dressing for at least two weeks and it was told by the said surgeon for skin grafting on both the legs. This episode was quite shocking for the complainant and his family members as the OP-1, who was responsible for inflicting the burn injuries, never suggested such seriousness towards the burn wounds. The complainant then obtained second opinion from one more local surgeon on 20.3.2013 who advised as before. Thereafter the complainant along with the family members reported to the OP-1 again on 23.3.2013 for the treatment of burn wounds as the same was aggravated. The entire matter was discussed with the hospital authority and then only the hospital authority started to think over the matter how the authority will handle the same and whether proper care was given to him after the operation of urology. The complainant’s family expressed their resentment to the authority as the OPs did not take the wounds seriously beforehand, rather treated him in a very casual manner. Finally the authority took the responsibility and assured the complainant that they will take complete care. The OP-1 entrusted the responsibility to the OP-4 for treatment of the burn wounds directing him to take necessary measures with immediate effect. Accordingly as per advice of the OP-4 the Complainant got admission at the OP-1 and OP-4 recommended for minor operation first on both the legs to root out the infected and burnt cells and after regular dressing for two weeks he will perform skin grafting when the wounds will come to a shape fit for grafting. The OP-4 performed the operation on 25.3.2013 and after the operation the doctor informed the patient party that the skin grafting was also done at the same time on both the legs. Upon getting such information from the OP-4, complainant and his family members became surprised as nothing was stated before the operation as well as the skin grafting that skin grafting will be performed simultaneously with the operation. After the operation the complainant was advised to remain at the OP-1 for few days and during that period dressing and medication were given to him on regular basis. The complainant got discharge on 30.3.2013 and during discharge he was advised with certain medicines and dressing in alternative day with ‘Gelonet’ and he was asked to report again on 08.4.2013. The complainant arranged for a local compounder at Dhanbad to observe the dressing procedure as per recommendation of the OP-4. The complainant followed the prescribed medicine and dressing but no improvement was noticed by him, rather the pain was aggravating day by day. The wound became worse and for this reason on 08.4.2013 the complainant went to the OP-1 as per advice where the OP-4 examined the wound and did the dressing. The complainant was assured that the wounds will be healed up as the same is under control. The OP-4 prescribed ‘Betadine’ lotion and dressing every two days. The complainant started to follow the advice of the OP-4 but he did not find any sign of improvement. On 14.4.2013 when the compounder opened the dressing, he noticed skin grafts disappeared mostly from the places, he noticed yellow patches on the wounds and foul smell was coming out from the wounds. The compounder suggested the complainant to take a second opinion immediately. Accordingly, the complainant met the Burn Specialist at BGH Hospital, Bokaro on 16.4.2013. Dr. A. Mondal, Burn Specialist of the said hospital after examining the wounds referred the case to CMC, Vellore as due to serious condition of the wound injury of both the legs was going to be deteriorated to such an extent which was beyond his capacity to take up the case, rather the doctor got shock over the negligence of Mission Hospital because skin grafting was done in a premature stage caused the wound infection to such an extent. The complainant was told by the said doctor to move to the CMC, Vellore without any delay and in case of delay amputation of the legs may be occurred. As per the advice of Dr. Mondal the complainant along with his family went to the CMC, Vellore on 17.4.2013 where a doctor of the emergency unit examined the wound and fixed an appointment with  the senior Burn Consultant on 19.4.2013 stating the case as critical. On 19.4.2013 the Burn Specialist examined the wounds and advised the complainant to get admission immediately. The complainant became shocked upon seeing the extent of infection of the wounds and he heard that the wounds will be treated by a plastic surgeon. The complainant had to undergo immediate surgery as the condition of the wounds became very bad. Before surgery he was advised to start with rigorous dressing three times a day for healing up of the site for approximately four weeks and he remained under continuous observation. When some progress was started then only the surgeon fixed a date for surgery. The complainant got admission on 20.4.2013 and treatment started immediately along with rigorous dressing on both legs. Subsequently, the doctor decided to do minor operation on both the legs to root out the infected/burn cells. Operation was done on 09.5.2013, dressing continued thrice a day and when the wounds showed significant improvement then the consultant decided to do split thickness skin grafting. The patient underwent split thickness skin grafting on 27.5.2013 and received graft care dressings during post-operative period. The complainant got discharge on 19.6.2013 from the CMC, Vellore. He was advised to come for dressing at Plastic Surgery–II, OPD on Tuesday and Friday which the complainant followed. Thereafter the complainant was able to take short walk but very cautiously. He was finally advised to move for home on 10.7.2013 with the following recommendations:

1. Daily gently wash with soap and water followed by message with moisturizer to the grafted and donor sides after it is healed;
2. To apply pressure garment over the graft and the donor sides for at least one year with physiotherapy exercises.

3. During the entire episode the complainant and his family members had to pass their days through depression and mental trauma due to negligence of the OPs and had to remain bed ridden for five months. While the complainant was under the treatment at CMC, Vellore some written communications was made through e-mail and post office with the OP-1 hospital requesting it to give him some compensation and reimbursement towards the cost of the treatment along with other associated expenses, i.e. travelling, accommodation, fooding of the complainant and family etc. to the Medical Director of the OP-1. Though the OP-1 assured him that he will do everything possible to help the complainant but actually the OP-1 did not take any step in this matter. The OP-1 arranged a meeting at Durgapur with the complainant and his family member in order to coming to a fruitful conclusion and accordingly the patient and his family the OP-1 on 30.7.2010. When the matter was discussed with the concerned authority i.e. Mr. Prabir Mukherjee, and Dr. Partha Pal–OP-3 of the OP-1, at that point of time the complainant demanded Rs.19,00,000=00 from the OP-1 authority towards compensation and reimbursement of all the expenses incurred by him towards the treatment. One list of his expenses was given to the OP-1. The OP-1 took time for discussion over the matter amongst them for coming to a conclusion. Next meeting was called by the OP-1 on 20.8.2013 at the hospital premises conducted by Mr. Prabir Mukherjee and Dr Joydeep Bhaduri of the OP-1 where it was stated by them that they have already discussed the matter amongst themselves and arrived at a conclusion for making payment towards reimbursement of the expenses as incurred by the patient before the CMC, Vellore Hospital. But no compensation will be paid as travelling/accommodation/food/medicine and any other associated expenses will not be reimbursed. As the grievance of the complainant had not been redressed by the OPs hence the complainant started to think to proceed through legal action against the OPs and sent a legal notice to the OP-1 through his ld. Advocate through speed post on 23.9.2013 which was received by the Hostpial-OP-1 on 25.9.2013. Though the treatment as provided by the CMC, Vellore has been successful but the complainant is still not able to walk freely till today.

4. The complainant has mentioned that on the following grounds the OPs are negligent and deficient in service i.e.

a. the OPs did not take proper care and initiatives during post operative period,

b. administration of anesthesia was not done properly by an expert doctor,

c. the operation theater of the nursing home was not well equipped for taking care of sensitive and serious patients like the complainant,

d. after operation the OPs did not take proper and diligent care regarding to the complainant,

e. inspite of knowing the fact that the OP-1 has claimed itself as super-speciality hospital, in this regard it must be careful in connection to the standard of care mainly in ICU, ICCU, trained nurse, RMO and other facilities for management of serious and critical condition, the OPs did not place any whole time attendant to look after the patient under critical condition for which the complainant had to suffer unbearable pain and agony both mentally and physically as he had to stay unattended for a considerable period,

f. there is a serious lack of standard care at the OP-1 which was required to be maintained by the OPs during operation for which injury and sufferings caused to the complainant and the condition of the patient became serious,

g. there is clear negligence on the part of the OPs as in the  super-speciality hospital  there must be expert doctors who are able to manage the post operative problem like the complainant but to their negligence as fresh problem occurred they have tried to get away from their liability and obligations and finally  plastic surgery had been done to this patient where the patient was admitted for his urology problem. Unfortunately plastic surgery was not done properly and due to negligence in that respect also the condition of both legs of the patient became serious and the same was on the verge of amputation,

h. the OPs did not take steps which are required to be taken and took steps which are not required to be taken.

Having no alternative this complaint is filed by the complainant praying for direction upon the OP-1 to OP-4 to pay a sum of Rs. 19, 00,000=00 towards compensation as well as cost.

Conjoint written version  of O.P.- 1&3:

5. The petition of complaint have been contested by the OP-1 & 3 by filing written version conjointly stating that the complainant was admitted on 03.3.2013 at about 2.39 pm under the Department of Urosurgery as a case of stricture urethra. The complainant underwent Csystoscopy and EIU on 04.3.2013, tolerated the procedure without any complication. The patient underwent the surgical procedure under spinal anesthesia administered by the consultant anesthetist Dr. Mithilesh Gupta and after operation he was shifted to the OT recovery room. The patient was in the OT from 9.35 am to 10.30 am on 04.3.2013. After requisite monitoring at the OT recovery room the patient was shifted to the ward on 7^th floor at 12.30 pm. Post-operatively patient was hemodynamically stable, only he was feeling cold. The doctor on duty advised for covering the body with blanket and no other orders were given by the doctor. The ward-in-charge sister Barnali took steps to shut down the AC temporarily but did not give any instruction for hot water bag. It is not a fact that the oP-2 being the urologist gave instruction to the ward-in-charge to put hot water bag beneath the legs. The complainant requested for a hot water bag to the ward attendant-Jwala and he on good faith and without any mal-intention provided the hot water bag on the planter aspect of the foot after covering the hot water bag with green towel. The same was done as per the expressed consent of the patient and at that point of giving the hot water bag proper steps were also taken for non-inflicting burn injury to the legs by covering the hot water bag with the towel and placed the same on the planter aspect of the foot. The wife of the patient was also present at the bed side during this process. Inspite of strict surveillance the position of the bag was misplaced by the patient party i.e. his wife. His wife was present at the bed side from 12.30 pm 1.10 pm after which she left the ward. It is an unreasonable conduct or negligence on the part of the patient party which caused such injury and the patient party had failed to extend cooperation to the staffs of the ICCU to carry out the reasonable and proper instructions given by the treating surgeon. It is submitted by the OPs that the bag was misplaced under the lower part of the legs of the patient and as a result of which the patient sustained burn injury on both the lower part of the legs. As soon as the patient complained of the sticking sensation at around 1.20 pm immediate attention was given to him by the doctors and sisters of the ward.  This was not done with a  view to escape themselves from the liability of gross negligence rather the hospital staff under the supervision of Dr. Sourav examined the patient and proper treatment was provided. Subsequently the patient party was also informed and the OP-2 and OP-3 visited the patient and took necessary steps for treatment of the patient. Thereafter the patient was examined and treated by the plastic surgeon and he got discharge on 06.3.2013 with an advice of regular follow up. Accordingly the patient came to the Urology OPD and Dr. Thomas–OP-2 sent him to the emergency unit for dressing of the burn injury under the supervision of Dr. Debasish Ghosh. In the said ward proper care was taken and the patient returned at his home with proper medical advice. The patient got readmission on 23.3.2013 under the Department of Plastic Surgery as there was blackening of the burnt area in his legs. Debridement was done and as the wound was apparently clean a very thin split skin graft was applied on 25.3.2013 and the patient got discharge on 30.3.2013 with an advice of dressing and follow up in the Plastic Surgery OPD. It is mentioned by the OPs that entire cost of the later treatment was borne by the hospital. The patient came to the plastic surgeon as per advice on 08.4.2013, dressing of the wound was done and advice was given for regular follow up. The patient went to the burn specialist at BGH, Bokaro on 16.4.2013 for second opinion. The patient party after consulting with the Burn Specialist at Bokaro called the Plastic Surgeon of the OP-1 i.e. OP-4 with the complaint of infection at the grafted site as the same was mentioned to the patient by a renowned Plastic Surgeon Dr. Anindya Mondal of Bokaro Hospital. The OP-4 advised the patient party for bringing him at the OP-1 immediately and assured that entire necessary treatment will be done. On the very next morning the patient party intimated the OP-4 that they are not inclined to bring the patient at the OP-1 rather they are inclined to move at the CMC, Vellore for further treatment. The OP-4 upon getting such information made telephonic discussion with Dr. Anindya Mondal who was of the opinion that the burn injury of both the lower legs of the patient was under healing processes and another skin grafting surgery may be required in due course of time. Dr. Mondal also stated that according to his observation the patient did not need any amputation. Therefore, the allegation as made out by the complainant is illogical to the extent that it was stated by Dr. Mondal that he was not in a position to take over the case due to severity of the wound. So it is clear from the attitude of the patient as well as the patient party that they have refused to take the suggested treatment and also failed to attend as per advice and due to this reason the patient himself had contributed much to the injury. The OPs have contended that the hospital authority had provided proper treatment and amenities to the patient after unfortunate burn injury and the latter treatment was provided totally free of cost including medicine, dressing, hospital charges as well as follow up dressing materials also. Due care, skilled advice and professional treatment was provided by the Plastic Surgeon and his team but the patient and the patient party failed to extend their co-operation with the doctors and the nursing staffs. Without abide by the advice of the OP-4 the complainant went to CMC, Vellore which was entirely unnecessary. Inspite of getting proper treatment, standard and reasonable care, this complaint has been initiated by the complainant with malafide intention with a view to grab some money from the OPs through an illegal manner. Not only that by filing this complaint he tried to harass these OPs. Therefore the complainant has not approached before this ld. Forum with clean hands; hence prayers have been made the OPs for dismissal of the complaint with exemplary cost.  Be it mentioned that as there was no deficiency in service as well as medical negligence on the part of these OPs, the OPs are not liable for making payment of compensation as sought for by the complainant. 

Written Version of O.P.No.2:

6. The petition of complaint has been contested by the OP-2 by filing written version stating that the complainant was admitted on 03.3.2013 at about 2.39 pm under the Department of Urosurgery as a case of stricture urethra. The complainant underwent Csystoscopy and EIU on 04.3.2013, tolerated the procedure without any complication. The patient underwent the surgical procedure under spinal anesthesia administered by the consultant anesthetist Dr. Mithilesh Gupta and after operation he was shifted to the OT recovery room. The patient was in the OT from 9.35 am to 10.30 am on 04.3.2013. After requisite monitoring at the OT recovery room the patient was shifted to the ward on 7^th floor at 12.30 pm. Post-operatively patient was hemodynamically stable, only he was feeling cold. The doctor on duty advised for covering the body with blanket and no other orders were given by the doctor. The ward-in-charge sister Barnali took steps to shut down the AC temporarily but did not give any instruction for hot water bag. It is not a fact that the OP-2 being the urologist gave instruction to the ward-in-charge to put hot water bag beneath the legs. The complainant requested for a hot water bag to the ward attendant-Jwala and he on good faith and without any mal-intention provided the hot water bag on the planter aspect of the foot after covering the hot water bag with green towel. The same was done as per the expressed consent of the patient and at that point of giving the hot water bag proper steps were also taken for non-inflicting burn injury to the legs by covering the hot water bag with the towel and placed the same on the planter aspect of the foot. The wife of the patient was also present at the bed side during this process. Inspite of strict surveillance the position of the bag was misplaced by the patient party i.e. his wife. His wife was present at the bed side from 12.30 pm 1.10 pm after which she left the ward. It is an unreasonable conduct or negligence on the part of the patient party which caused such injury and the patient party had failed to extend cooperation to the staffs of the ICCU to carry out the reasonable and proper instructions given by the treating surgeon. It is submitted by the oPs that the bag was misplaced under the lower part of the legs of the patient and as a result of which the patient sustained burn injury on both the lower part of the legs. As soon as the patient complained of the sticking sensation at around 1.20 pm immediate attention was given to him by the doctors and sisters of the ward.  This was not done with a  view to escape themselves from the liability of gross negligence rather the hospital staff under the supervision of Dr. Sourav examined the patient and proper treatment was provided. Subsequently the patient party was also informed and the OP-2 and OP-3 visited the patient and took necessary steps for treatment of the patient. Thereafter the patient was examined and treated by the plastic surgeon and he got discharge on 06.3.2013 with an advice of regular follow up. Accordingly the patient came to the Urology OPD and Dr. Thomas–OP-2 sent him to the emergency unit for dressing of the burn injury under the supervision of Dr. Debasish Ghosh. In the said ward proper care was taken and the patient returned at his home with proper medical advice. The patient got readmission on 23.3.2013 under the Department of Plastic Surgery as there was blackening of the burnt area in his legs. Debridement was done and as the wound was apparently clean a very thin split skin graft was applied on 25.3.2013 and the patient got discharge on 30.3.2013 with an advice of dressing and follow up in the Plastic Surgery OPD. It is mentioned by the OPs that entire cost of the later treatment was borne by the hospital. The patient came to the plastic surgeon as per advice on 08.4.2013, dressing of the wound was done, advice was given for regular follow up. The patient went to the burn specialist at BGH, Bokaro on 16.4.2013 for second opinion. The patient party after consulting with the Burn Specialist at Bokaro called the Plastic Surgeon of the OP-1 i.e. OP-4 with the complaint of infection at the grafted site as the same was mentioned to the patient by a renowned Plastic Surgeon Dr. Anindya Mondal of Bokaro Hospital. The OP-4 advised the patient party for bringing him at the OP-1 immediately and assured that entire necessary treatment will be done. On the very next morning the patient party intimated the OP-4 that they are not inclined to bring the patient at the OP-1 rather they are inclined to move at the CMC, Vellore for further treatment. The OP-4 upon getting such information made telephonic discussion with Dr. Anindya Mondal who was of the opinion that the burn injury of both the lower legs of the patient was under healing processes and another skin grafting surgery may be required in due course of time. Dr. Mondal also stated that according to his observation the patient did not need any amputation. Therefore, the allegation as made out by the complainant is illogical to the extent that it was stated by Dr. Mondal that he was not in a position to take over the case due to severity of the wound. So it is clear from the attitude of the patient as well as the patient party that they have refused to take the suggested treatment and also failed to attend as per advice and due to this reason the patient himself had contributed much to the injury. The OP-2 has contended that the hospital authority had provided proper treatment and amenities to the patient after unfortunate burn injury and the latter treatment was provided totally free of cost including medicine, dressing, hospital charges as well as follow up dressing materials also. Due care, skilled advice and professional treatment was provided by the Plastic Surgeon and his team but the patient and the patient party failed to extend their co-operation with the doctors and the nursing staffs. Without abide by the advice of the OP-4 the complainant went to CMC, Vellore which was entirely unnecessary. Inspite of getting proper treatment, standard and reasonable care, this complaint has been initiated by the complainant with malafide intention with a view to grab some money from this OP through an illegal manner. Not only that by filing this complaint he tried to harass the OP. Therefore the complainant has not approached before this ld. Forum with clean hands; hence prayer has been made the OP for dismissal of the complaint with exemplary cost.  Be it mentioned that as there was no deficiency in service as well as medical negligence on the part of this OP, the OP is not liable for making payment of compensation as sought for by the complainant. 

Written Version of O.P.No. 4:

7.  The petition of complaint has been contested by the OP-4 by filing written version stating that within the four corners of the complaint the complainant has miserably failed to make any description as to how and in which manner the treatment of this OP suffers from medical negligence as well as deficient in service. Though some allegation has been made by the complainant in the petition of complaint but those have no basis at all.  So with a view to harass this OP, this complaint is initiated with a view to lower down his fame and respect. It is stated by the OP-4 that the patient got post-operative burn injury and referred to him and he being a well qualified plastic surgeon did plastic surgery of debridement and applied a thin skin graft as a biological dressing over the wound under anesthesia in the operation theater diligently, prudently and with due care and caution. So negligence cannot be occurred in any manner. Therefore this complaint is liable to be dismissed with cost of Rs. 10,000=00 in the interest of natural justice as the complainant has filed the complaint with a view to grab some money in an illegal manner.

8. The Complainant has filed evidence on affidavit; OP-4 has filed evidence on affidavit. On 02.02.2015 the OP-1, 2, &3 by filing a petition have prayed for to adopt their written versions as their evidence. As the written versions filed by the OP-1, 2, & 3 supported by an affidavit hence we have treated the written versions of the OP-1, 2, & 3 as their evidence-in-chief. The OPs did not challenge the evidence of the complainant by filing questionnaire. The complainant filed questionnaire in respect of the evidences of OP-1, 2, 3 & 4 and reply have been filed by those OPs accordingly. Though the OP-5 appeared before this ld. Forum to contest the complaint but ultimately no written version has been filed by it. Hence, the case is running ex parte against the OP-5.

9. The complainant and the OPs have filed several documents in support of their respective contentions. The ld. Counsel for the complainant has relied on several judgments, photocopy of some medical journals during argument. Entire BHTs have been filed by the OP-1, 2 & 3. The complainant has filed the medical documents of CMC, Vellore.

10. We have carefully perused the entire record, documents, medical journals and the Rulings as relied on by the complainant and heard argument at length advanced by the ld. Counsel for the complainant and the OP-1, 2, 3 & 4 respectively.

Points to be decided:-

1. Whether the complainant can be termed as consumer?
2. Whether this complaint is maintainable before this ld. Forum?
3. Whether this complaint suffers from non-joinder/mis-joinder of necessary parties?
4. Whether there was any medical negligence on behalf of the OP-1, 2, 3 & 4?
5. Whether the complainant is entitled to get any amount as compensation as prayed for?

Decision with reasons:-

Point No. ‘A’:-

11. At the very outset we are to adjudicate as to whether the complainant can be termed as consumer within the purview of the definition as enumerated in the C.P. Act, 1986. Admittedly, the complainant got admission at the OP-1 where the OP-2, 3 & 4 provided treatment to him including surgery and plastic surgery also. No case has been made out by the OPs that the service rendered by the OPs at the OP-1 was free of cost or gratuitous. From the documents it is evident also that the complainant paid the entire cost of this treatment to the OP-1. Therefore as the OP-1, 2, 3 & 4 are the service providers, hence the complainant can easily be termed as ‘Consumer’ within the ambit of the definition of ‘Consumer’ as mentioned in the C.P. Act, 1986. So, Point No. ‘A’ is decided in favour of the complainant.

Point No. ‘B’:-

12. The complainant got admission at the OP-1 which is situated within the territorial jurisdiction of this ld. Forum. So from the territorial jurisdictional point of view the complaint is maintainable. As the complainant has prayed for Rs. 19, 00,000=00 towards compensation due to medical negligence of the OP-1, 2, 3 & 4 hence, this complaint falls within the pecuniary jurisdiction of this ld. Forum. As the complaint is maintainable before this Ld. Forum hence Point No. ‘B’ is also decided in favour of the complainant.

Point No. ‘C’:-

13. Now we are to adjudicate as to whether this complaint is bad due to non-joinder and/or mis-joinder of necessary parties or not. During hearing the ld. Counsel for the OP-1, 2 & 3 has argued that this complaint is bad for non-joinder of necessary parties and on that score this complaint should go. To corroborate his argument the said ld.  Counsel has mentioned that after operation the patient was shifted on the 7^th floor in the ICCU wherein several doctors, nurses, staffs, attendants and sweepers were on duty on that date. It is further stated that unfortunate incident was happened as one of the ward attendant, namely, Jwala provided hot water bag to the patient as per his request. Therefore, according to the said OPs entire staffs along with doctors who were on duty on 04.3.2013 from 12.30 pm to 2.30 pm, they should be made necessary parties in this proceeding because without taking evidence from those persons this complaint cannot be adjudicated. In this respect the ld. Counsel for the complainant has argued that inspite of non-joinder/mis-joinder of necessary parties no complaint can be dismissed. In this respect the complainant has relied on the judgment passed by the Hon’ble Supreme Court in the case of Smt.  Sabita Garg Vs. the Director, National Heart Institute decided on 12.10.2004 reported in 2004 (8) Supreme 58 wherein it has been held by Their Lordships that where consumer complaint alleging medical negligence is filed against medical hospital/institute where the patient was treated, complaint could not be dismissed summarily on the ground of non-joining of treating doctor as necessary party.

In the paragraph no. 11 of the said judgment it has been held by Their Lordships which runs as follows:

11.                  The Consumer Forum is primarily meant to provide better protection in the interest of the consumer and not short circuit the matter or to defeat the claim on technical grounds……… It is very difficult for the patient to give any detail that which doctor was negligent or the nursing staff was negligent. It is very difficult for such patient or his relatives to implead them as parties in the claim petition; it will be an impossible task and if the claim is to be defeated on that ground it will virtually be frustrating the provisions of the Act, leaving the claimant high and dry. We cannot place such a heavy burden on the patient or the family members/relatives to implead all those doctors who have treated the patient or the nursing staff to be impleaded as party. It will be difficult task for the patient or his relatives to undertake this searching enquiry from the hospital and sometimes hospital may not cooperate…………. The patients once they are admitted to such hospital, it is the responsibility of the said hospital or the medical institutions to satisfy that all possible care was taken and no negligence was involved in attending the patient. The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in the hospital it is the responsibility of the hospital to provide the best service and if it is not, then hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff, as the case may be, was not impleaded, therefore the claim should be rejected on the basis of non- joinder of necessary parties. Infact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated the patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing the doctor who treated the patient in defence to substantiate their allegations that there was no negligence. Infact it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the institution/hospital than that of the claimant. The institution is private body and they are responsible to provide efficient service and if in discharge of their efficient service there are couple weak links which has caused damage to the patient then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.

14. The above-mentioned observation has also been adopted by Their Lordships in the landmark judgment passed by the Hon’ble Supreme Court in the case of Moloy Kr Ganguly Vs. Dr. Sukumar Mukherjee reported in 2009 (4) RLS 3625 (SC). Therefore having regard to the above-mentioned observation of the Hon’ble Supreme Court, as well as, the existing Law of this Land we are of the view that due to non-joinder of necessary parties, if any, this complaint should not go. So the point no-‘C’ is decided in favour of the Complainant.

Point No. ‘D’:-

15. Now we are to adjudicate the most important and vital issue as to whether there were any medical negligence and deficiency in service on behalf of the OP- 1, 2, 3 and 4 or not. Firstly, we are to see as to whether there was any medical negligence on behalf of the OP-4 or not. It is seen by us that the OP-4 being a Plastic Surgeon of the OP-1 had operated upon the burn wounds of the patient and skin grafting was also done by him. According to the oP-4 in respect of the said operation due care and caution was taken by him and he discharged his obligation as per standard medical practice and norms diligently and prudently. As there was no negligence and/or deficiency in service on his part he is not at all under any obligation for making payment of any amount towards compensation as sought for by the complainant. Further contention of the OP-4 is that he performed his duties without taking any fees from the patient and the entire cost of the operation at the wound site along with skin grafting had been borne by the OP-1. The case of the complainant is that there is a serious lack of standard care which was required to be taken by the OP-4 had not been taken as the OP-4 did not take any informed consent prior to the skin grafting. Moreover, the consent form which was taken by him from the patient for operation at the burn wound site is not at all proper as per the guideline and format of the Medical Council of India. It is seen by us that admittedly the patient was admitted at the OP-1 in the Department of Urology for stricture urethra. Operation was done on 04.3.2013 under spinal anesthesia and after recovery the patient was shifted in the ICCU  bed no. 4, wherein the patient was feeling very cold, his body was covered with two blankets, shut down the AC temporarily, but inspite of this as the complainant was feeling cold hot water bag was given to him by the ward attendant beneath both the lower legs. Due to severe hot and as there were so sensation in his legs due to spinal anesthesia both legs of the patient got severely burnt. Thereafter the patient was referred to the OP-4 for better management and treatment. It is evident from the complaint that the OP-4 recommended for minor operation first on both the legs to root out the infected/burnt cells and after at least two weeks of regular dressing to perform skin grafting when wound will come to a shape fit for grafting. On the paragraph no- 13 of the complaint it has been mentioned by the complainant that the OP-4 performed the operation on 25.3.2013 and the operation was done, the doctor informed the complainant and his family that the skin grafting had also been done at the same time on both the legs. Upon hearing the complainant and his family members became so surprised because for skin grafting no consent was taken either from the complainant or the patient party and even the same was not communicated to them prior to performing it.  In this respect the complainant has relied on the judgment passed by the Hon’ble Supreme Court in the case of Samira Kohli Vs. Dr. Prabha Manchanda and Another, reported in (2008) 2 (SC) 1, wherein Their Lordships have held that “ a doctor has to seek and secure the consent of the patient before commencing a treatment including surgery and the consent so obtained should be real and valid, which means that the patient should have the capacity and competence to consent, his consent should be voluntary and on the basis of adequate information concerning the nature of the treatment procedure so that he/she knows what is consenting to.” In this regard we may mention Halsbury’s Law, Medical Journal, wherein it is stated that ‘Every human being of adult years and sound mind has a right to determine what shall be done with his/her own body, and a surgeon who performs an operation without his patient’s consent commits an assault’.
16. In Samira’s case (Supra) it has also been held by the Hon’ble Apex Court that-

1. The “adequate information” to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he/she should submit himself to the particular treatment or not. This means that the doctor should disclose a) nature and procedure of the treatment and its purpose, benefits and effect; b) alternatives if any available; c) an outline of the substantial risks; and d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
2. Consent given only for a diagnostic procedure cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defense in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.
3. There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical and an additional or further that may become necessary during the course of surgery.
4. The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment.

17. Bearing in mind the above principles and having regard to the facts and circumstances of the present case and material brought on record, we have no hesitation in holding that in the present case, the surgeon-OP-4 has failed to obtain the requisite consent from the complainant or his family member for performing skin grafting. During hearing the ld. counsel for the OP-4 has attracted our notice to the consent form for procedure and treatment as taken by the OP-4 wherein it is found that the consent of the patient’s representatives is remained as ‘blank’. The OP-4 has also argued that the said consent form can be taken as valid consent for operation at the wound site as well as skin grafting.  We are not prepared to accept such contention of the ld. counsel because in the said consent form the OP-4 did not mention that along with operation skin grafting will be done. Therefore from the consent form it is also apparent that for skin grafting no valid consent was at all taken by the OP-4 which is a grave violation of the medical practice, norms, ethics and etiquette. Be it mentioned that henceforth the OP-4 should be more cautious in obtaining the valid consent form before performing surgery either from the patient or the patient party.
18. The complainant put some specific questions to the OP-4 in respect of non-taking of valid consent in accordance with the procedure of medical science and without taking the same skin grafting was done by the OP-4 (Q-26). In Q-25, the complainant has mentioned that after completion of the operation the OP-4 informed the family members of the patient that skin grafting was also done at the same time.  In Q-24, it is stated by the complainant that OP-4 had recommended a minor operation to be done on 25.3.2013 to root out the burnt part followed by two weeks dressing and then the skin grafting was to be done.  In respect of question no- 24 the OP-4 has replied that debridement was done and as the wound was apparently clean, a very thin split skin graft was applied on 25.3.2013 and the patient was discharged on 30.3.2013 with an advice of dressing and follow up in plastic surgery OPD………  In respect of question no- 25, it is answered by the OP-4 that consent for wound debridement had been taken and very thin split skin grafting was done with the expectation that it will act as biological cover for the wound.  As evident from the OT note that the definitive skin grafting and flap cover will be done later………………….. Similar reply has been made by the OP-4 in respect of question no-26.

19. ) Therefore it is very clear to us that admittedly the OP-4 did not take any valid consent either from the patient or the patient party for skin grafting before performing the same.  In our view in this respect, without taking valid consent as the OP no- performed the same, he violated the standard medical norms as well as the existing dictum of the Hon’ble Supreme Court which has been mentioned earlier.  So, the action as taken by the OP-4 cannot be encouraged as proper in view of the Consumer Protection Act, 1986 and at the same time such action can easily been termed as medical negligence.

20. Having regard to the aforementioned judgment in our view as the OP-4 has violated the standard medical practice and ethics as well as the existing Law of this Land, hence such action can easily be termed as medical negligence as well as deficiency in service on his part and for this reason he is under obligation for making payment compensation to the complainant. 
21. Now we are to adjudicate as to whether there was any medical negligence on behalf of the OP-2 or not. It is the case of the complainant is that on 04.3.2013 Cystoscopy and EIU were done by the OP-2 at the OP-1 under spinal anesthesia. After operation the patient was kept in the recovery ward and thereafter he was shifted in the ICCU on the 7^th floor, bed no-4. The allegation of the complainant against the OP-2 is that the OP-2 being a surgeon did not take any valid consent either from the patient or patient party before performing surgery, the operation note has not been written properly as per medical guidelines and the OP-2 did not take proper care to the patient because inspite of burn injury due to carelessness of the doctors and nurses in the ICCU on 04.3.2013 at about 1.20 pm he attended the patient at 4.00 pm. In respect of such allegation, the contention of the OP-2 is that he obtained valid consent from the patient, the operation was uneventful, operation note given, no allegation made out regarding operation, during shifting in the ICCU after recovery the patient was hemodynamically stable and though not immediately after the burn injury but subsequently he visited the patient and took necessary steps for treatment towards the patient and the patient was referred to the Plastic Surgeon for treatment of the burn injury. The OP-2 was cross-examined by the complainant by way of questionnaire. In respect of question no-7 as put by the complainant, the OP-2 replied that being a conducting surgeon he went to the ward at 4.00 pm, but in respect of question no-15 the OP-2 replied that the patient was immediately attended by group of doctors and nurses which include Dr. Debasish Ghosh, Dr. Sourav, Urosurgeon Dr. Ajit J Thomas and Plastic Surgeon Dr. Krishnendu Goswami. It is noticed by us that the two replies given by the OP-2 are not same and identical because in the reply no-7 the OP-2 has admitted that he visited the patient at about 4.00 pm after burn injury on 04.3.2013 but in the reply no-15 it is answered by him that the patient was immediately attended by him. The BHT dated 04.3.2013 reveals that the OP-2 attended the patient at about 4.00 pm not immediately after the burn injury. Therefore the reply as given in respect of question no-15 cannot be taken as true and in our view the said reply does not help the OP-2 for adjudication of the complaint in his favour. In respect of valid consent before surgery either from the patient or the patient party as alleged by the complainant we are of the view that though there is a consent form for procedure and treatment but the same cannot be termed as valid consent form. Because as per the standard medical books and literature, namely, Bailey & Love’s Short Practice of Surgery, 24^th edition, edited by Russel, Williams, Bulstrode, Chapter-3, Page-38 wherein it  is stated that ‘surgery is technically an assault unless the patient has given express permission for this to occur. This permission is valid only if the patient understands what is plan and then agrees with the proposed course of action. In itself a signed consent form may mean nothing in a court of law; it is the proper taking of informed consent and record that this has taken place which is the true defense against a charge of assault and battery.’ It has also been stated in the said page that ‘you should introduce yourself, check the patient’s name and explain what it is that you are proposing to do and by what authority you are doing this. Currently it is considered that only the surgeon performing the surgery, or a deputy who is also capable of performing the surgery, Should obtain consent.’ In the case in hand firstly, no valid consent was taken either from the patient or the patient party, secondly, in the alleged consent form for procedure and treatment, though the patient/patient party authorized Dr. Ajit. J. Thomas but in the next page under the column of the signature of the doctor and his name, the name is written as Dr. P.K. Chattopadhyay. Therefore it is very difficult for us to hold that who took the consent from the patient or the patient party and whether Dr. Chattopadhyay was capable of performing the same surgery or not, the picture is not at all clear to us. Moreover in view of the judgment passed by the Hon’ble Supreme Court in Samira’s case (supra) as mentioned before wherein it have been held by Their Lordships that a doctor has to seek and secure the consent of the patient before commencing a treatment including surgery and the consent so obtained should be real and valid, which means that the patient should have the capacity and competence to consent, his consent should be voluntary and on the basis of adequate information concerning the nature of the treatment procedure so that he/she knows what is consenting to’. As per Halsbury’s Law Medical Journal ‘every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault.’ Upon considering the factual matrix of this complaint it is noticed by us that admittedly the OP-2 did not take any valid consent either from the patient or the patient party because it is very difficult to us for coming to a conclusion that to whom authorization was given for performing surgery either to Dr. Thomas or Dr. Chattopadhyay, no explanation has been narrated by the treating surgeon to the patient about the pros & cons of the surgery and its after effects, if any. Therefore as the OP-2 had violated the standard medical practice as well as the existing Law of this Land, hence we can easily term the action of the OP-2 as medical negligence and for which he is liable to compensate the patient. In respect of operation note it is mentioned in the Bailey & Love’s Short Practice of Surgery, 24^th edition, edited by Russel, Williams, Bulstrode, Chapter-3, Page-40 under the operating note that operating note is an important document. It should be legible, comprehensive and signed………It is a contemporaneous record and therefore carries great weight in any subsequent inquiry into complication or an advance outcome…………’ In the case in hand it is noticed by us that in the operation note there is no mentioning the time of starting the operation and its closure, the procedure taken by the surgeon, the names of the doctors  present in the OT, whether eventful/uneventful etc. Moreover the operation note has not been signed by the treating surgeon. Therefore the same does not carry any evidentiary value. In this respect the OP-2 is hereby directed to abide by the standard medical practice in future otherwise he will suffer irreparable loss and injury. Therefore the complainant has successfully proved that there was medical negligence on the part of the OP-2.
22. Now we turn up our eyes to the vital point as to whether there was any medical negligence in providing proper treatment and care with due diligence towards the patient on behalf of the OP-1 & 3. From the cause title it is seen that the OP-1 is the Mission Hospital and the OP-3 is Dr. Partha Pal, Deputy Medical Superintendent of the OP-1. Therefore the OP-3 is representing the OP-1. From the factual aspect as stated by the Complainant we have noticed that he got admission on 3.3.2013 at the OP-1 where he underwent an operation under spinal anesthesia on 4.4.2013. After recovery the patient was shifted to the ward (ICCU) on the 7^th floor at the bed no-4. After the operation the patient was feeling very cold and as per the advice of the OP-2 the ward in-charge put hot water bag beneath both the lower legs and covered the body with two blankets, but the patient was left uncared. Due to the effect of spinal anesthesia he could not feel any pain or sensation at the lower part of his body. When he came out of anesthesia effect, started grimacing under excruciating pain in both his lower legs and then he discovered that his both legs got severely burnt due to hot water bag, which was put beneath his legs for neutralizing the cold effect after operation. Only after the complainant came to his sense and felt the pain in his lower legs he called his relatives by himself through phone of another patient. In order to escape from the liability of gross negligence the OP-1 dressed up the burnt wound on both the legs without informing any of the family members of the patient. The OP-2 was informed, OP-3 visited the patient, the OP-4 removed the dressing and redressed the same. The patient party met the OP-3 & 4 who assured them that the burn injuries will be attended properly and they were told that the situation was under control. Thereafter the complainant got discharge on 6.3.2013 after clearing the hospital dues including consultant fees/visits for the burn injury, the dressing and other charges. Further allegation has been made by the complainant is that during discharge no advice was given by the OP-1 regarding the treatment of burn injuries in the discharge summary rather he was verbally told for dressing of the burn wounds on both the legs every other day using ointment namely, Silverex. In the conjoint written version the OP-1 & 3 have stated that the patient was shifted to the OT recovery room after completion of surgical procedure and thereafter he was shifted in the ICCU at about 12.30 pm. During post-operative period the patient was hemodynamically stable apart from feeling cold. The doctor on duty in the ICCU advised for covering the body with blanket and no other orders was given by the doctor. The ward in-charge sister took steps by shutting the AC temporarily but did not give any instruction for hot water bag. The operative surgeon also did not give any advice to provide hot water bag to the patient. It is the complainant who requested for a hot water bag to the ward attendant, Jwala, who in good faith for the patient’s benefit with no mal-intention provided the hot water bag on the planter aspect of the foot after covering the hot water  bag with green towel and the same was done with the expressed consent of the patient and took proper steps for non -inflicting burn injury to the legs by covering the bag with towel and placed the same on the planter aspect of the foot and at that point of time the wife of the patient was also present by the bed side during this process. Inspite of taking proper care the position of the bag misplaced by the patient party, i.e. wife of the patient who took an attempt to tug the blanket underneath the mattress. The wife of the patient was present therein from 12.30 to 1.10 pm and thereafter she left the ward. Therefore this is an unreasonable conduct of negligence on the part of the patient party who failed to co-operate with the OPs in providing proper treatment to the patient. As the bag was misplaced the patient sustained burn injury on both the lower part of his legs. As soon as the patient complained of sticking sensation at around 1.20 pm, immediate attention was given to the patient by the doctors and sisters of the ward and the same was not done with a view to take an attempt for escaping from their liability of gross negligence rather the hospital staff provided proper and appropriate treatment to the patient without wasting any time. Subsequently the patient party was informed and the OP-2 & 3 visited the patient respectively and lastly the OP-4 was informed, who provided appropriate treatment to the patient.

     (23) Upon considering the relevant portion of the complaint and the conjoint written version of the OP-1 and 3 we have noticed that firstly, no cogent and conclusive evidence have been adduced by the OP-1 and 3 that the wife of the patient was present at the bed side of the Complainant in the ICCU from 12.30 pm to 1.10 pm and thereafter she left the ward and she made an attempt to tug the blanket underneath the mattress after keeping the hot water bag on the planter aspect of the foot of the patient by the ward attendant, Jwala. Secondly, for the argument sake if we hold that the wife of the patient was present at the bed side in the ICCU during relevant time, then question is cropped up in our mind why the OP-1 and 3 allowed the wife the patient in the ICCU, where several serious patients were under treatment and infections may be cropped up from the garments of the outsider. So, if the OP-1 and 3 allowed her to be present in the ICCU, the said action is an example of medical negligence and for this reason the OPs cannot shift their negligence on the shoulder of the patient party/wife of the patient. Thirdly, the OPs have stated that the treating doctor never suggested for providing hot water bag to the patient as he was feeling very cold, nor the doctors and sisters of the ICCU provided the hot water bag to him, the ward attended, Jwala provided the same to the patient as per the request of him in good faith and with no mal-intention. In this respect we are of the view that in the ICCU there must be a specific register of the hot water bags under the control of appropriate authority and the person who used to provide the hot water bags to the patient is under obligation to put requisition for hot water bags before the appropriate authority. Undoubtedly the said authority is also under obligation for sanctioning the hot water bag to a particular patient based on the written instruction/advice of the treating doctor/doctor/sister of the respective ward. But in the case in hand the OP-1 being a renowned Hospital/Nursing Home is unable to produce any such register before us and even has failed to prove as to whether any register is maintained by it or not, no document is forthcoming that hot water bag was given as per written instruction of the doctor. On the whole whether Jwala, ward attendant was authorized person or not to supply hot water bag to the patient as and when it is required, no convincing reply is forthcoming. If the contention of the OPs is accepted that as per request of the patient the ward attendant in good faith provided the hot water bag to him, then if any patient requests for poison and/or any drug, not prescribed by the doctor, whether the ward attendant is authorized to provide the same to the patient? If the ward attendant does the same and adverse result comes out, then the OP-1 and 3 cannot avoid their liability being the principal and employer of the said ward attendant. Moreover no action was taken by these OPs to adduce any evidence by Jwala, the ward attendant, whose name has been declared by the OPs in their replies. Therefore the OPs did not take any fruitful step for disclosure of the actual truth to prove their contentions. It is true that initially the burden of proof lies upon the Complainant, who asserts the complaint, but when the Complainant successfully proves the same then the liability is shifted to the other side. In this case it has proved that the legs of the Complainant got seriously burnt due to the hot water bag provided by the ward attended of the ICCU ward of the OP-1, so now these OPs are under obligation to prove that there was no medical negligence and/or deficiency in service on their behalf. But the OPs have miserably failed to prove their case by adducing cogent documents. Fourthly, as the Bed head ticket does not contain any advice for giving hot water bag to the patient, then how and why the authority sanctioned the said bag for the patient as per the statement of the ward attendant without abiding by the advice of the doctor. Fifthly, Inspite of specific question as put by the Complainant no reply is forth coming from the OP-1 and 3 regarding the temperature of the hot water. Sixthly, from the conjoint reply it is evident to us that trained nurses and RMOs are available round the clock to keep vigil upon the patient in the ward. Sister in-charge was Barnali Dey and the duty nurse for the case was Sister Divya Joseph, ward RMO on duty was Dr. Rajani (Q-3). From the post-operative comments/instructions it is evident that advice was given for ‘Routine Care’, ‘BP every 15 minutes’ etc. So as there was clear advice for checking blood pressure in every 15 minutes, then why the doctor/nurse who were on duty on that date in the said ward did not take proper care to this patient and if in every 15 minutes BP was checked then how his legs got burnt so seriously as it of course took much time than 15 minutes. Therefore the doctors, nurses who were on duty on that date are all liable for medical negligence as they neither attended the patient properly nor took due care and caution to him. Being master/employer of those persons the OP-1 and 3 are liable vicariously. In this respect the Ld. Counsel for the Complainant has relied on the judgment passed by the Hon’ble Supreme Court in the case of Smt. Savita Garg Vs The Director, National Heart Institute, reported in 2004 (8) Supreme 58, wherein in the paragraph-16 it has been held which runs as follows:-

16. Therefore, as per the English decisions also the distinction of contract of service and contract for service, in both the contingencies the courts have taken the view that the hospital is responsible for the acts of their permanent staff as well as staff whose services are temporarily requisitioned for the treatment of the patients. Therefore, the distinction which is sought to be pressed into service so ably by learned counsel cannot absolve the hospital or the institute as it is responsible for the acts of its treating doctors who are on the panel and whose services are requisitioned from time to time by the hospital looking to the nature of the diseases. The hospital or the institute is responsible and no distinction could be made between the two classes of persons i.e. the treating doctor who was on the staff of the hospital and the nursing staff and the doctors whose services were temporarily taken for treatment of the patients. On both, the hospital as the controlling authority is responsible and it cannot take shelter under the plea that the treating physician is not impleaded as a party, the claim petition should be dismissed……….’ It is noticed by us that in the paragraph-15 of the said judgment it is mentioned that ‘a hospital authority is liable for the negligence of doctors and surgeons employed by the authority under a contract for service arising in the course of the performance of their professional duties. The hospital authority is liable for the negligence of professional men employed by the authority under contracts for service as well as under contracts of service. The authority owes a duty to give proper treatment-medical, surgical, nursing and the like-and though it may delegate the performance of that duty to those who are not its servants, it remains liable if that duty be improperly or inadequately performed by its delegates……’ In our view the relied judgment can be applicable in the case in hand because the doctors and the nurses of the OP-1 have failed to take due care and caution to the patient and due to their negligence and casual attitude the Complainant had to suffer burn injury though he got admission at the OP-1 for another surgical procedure, not related with burn injury. He got discharge from the OP-1 with an additional suffering. In the landmark judgment of the Hon’ble Supreme Court (Jacob Mathew vs State of Punjab & Another), reported in 2005 SCCL.COM 456, it is mentioned the essential components of negligence, as recognized, are three: duty, breach and resulting damage, that is to say:-

1. the existence of a duty to take care, which is owed by the defendant to the Complainant;

2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and

3. damage, which is both casually connected with such breach and recognized by the law, has been suffered by the Complainant.

If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.

24. Having regard to the abovementioned observations and the settled Law of this Land it can safely be said that the OP-1 and 3 are vicariously liable due to failure to attain standard care prescribed by the law and standard medical practice by their employees, for which the Complainant is very much entitled to get adequate compensation from the OP-1 and 3. Hence the Point-D is decided in favour of the Complainant.
25. During hearing the ld. Counsel for the OPs has argued that no expert evidence has been sought for by the complainant to prove the allegation that there was medical negligence on behalf of the OPs. According to the Ops as this complaint is related to the medical negligence, expert opinion is mandatory. In this respect the ld. Counsel for the complainant has relied on the judgment passed by the Hon’ble Supreme Court in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. (2010) SCCL.com 288 wherein Their Lordships have held that where there is palpable negligence, expert opinion is not mandatory. The said observation is applicable in the case in hand because admittedly due to lack of care both legs of the complainant got severely burnt. So to prove the said negligence expert opinion is not necessary, rather we can adopt the theory of res ipsa loquitor. The latin maxim res ipsa loquitor means that the thing speaks for itself. Street on trots (1983 7^th Edition), mentions ‘where an unexplained accident occur from a thing under the control of the defendant and medical or other expert evidence whose the such accident would not have happened if proper care were used there is at least evidence of negligence,’ the doctrine res ipsa loquitor applies. In the Nikhil’s case (supra) Their Lordships have held that in a case where negligence is evident, the principle of res ipsa loquitor operates and the complainant does not have prove anything (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. In the Spring Meadow’s case the Hon’ble Supreme Court applying the doctrine of res ipsa loquitor have held that ‘even delegation of responsibility to another may amount to negligence in circumstances. A consultant could be negligent where he delegates the responsibility to his junior with knowledge that the junior was incapable of performing his duties.’ In Acchut Rao’s case the Hon’ble Supreme Court has applied this doctrine.

Point No:-‘E’

26. Admittedly the Complainant got admission at the OP-1 due to complications of blocked urinary system where Cystoscopy and EIU were done on 03.03.2013, immediately after the operation the patient got severe burn injury due to lack of care of the employees of the OP-1, after getting discharge from the OP-1 on 06.03.2013 he was further admitted at the OP-1 under the OP-4 for operation at the burnt site, operation and skin grafting done simultaneously and got discharged on 30.03.2013. But as pain was aggravating and infection started at the operated portion he had to approach before the BGH Hospital, Bokaro. Inspite of such treatment when the situation became very worst he went at the CMC Vellore Hospital, where entire treatment was done along with operation and skin grafting and in this way the Complainant had to incur huge amount of money towards his medical treatment, travelling cost etc. It is the case of the OPs that the later treatment at the OP-1 under the OP-4 was done free of cost. In this respect we are of the view that the patient did not went at the OP-1 due to blockage in the urinary track, but due to medical negligence he got severe burn injury therein. So whether the later treatment at the OP-1 was free of cost or not, that is immaterial. Admittedly the Complainant had to pay Rs.29, 272=00 to the OP-1 during discharge on 06.03.2013. Though the OP-1 did not charge any amount from the Complainant for the later treatment, but the injury which had to suffer by him cannot be compensated with the payment the later hospital bill. Not only that the OP-1 provided free treatment to the patient, but as medical negligence occurred on their parts, the OP-1 tried to escape from its liability of gross negligence by not taking any amount towards his later treatment.
27. Though in the written version the OP-1&3 have mentioned that they did not take any amount towards the treatment the burn injury from the complainant, but from the receipt issued by the OP-1 to the complainant during discharge on 06.3.2013 the complainant had to make payment approximately a sum of Rs. 4079.63 towards the treatment for his burn injury at the time of discharge on 06.3.2013 and admittedly the complainant paid the said amount to the OP-1. It is noticed by us that though the complainant did not get admission at the OP-1 due to his burn injury, caused due to negligence of the OP-1 & 3, the complainant had to pay the said amount at the time of discharge. Therefore, the contention of the OP-1 & 3 cannot be treated as sacrosanct. We have also noticed that as the condition at the burn site was deteriorating the complainant had to approach before several doctors and hospitals and where he had to incur huge amount to get relief from the injury. As for instance, form the documents it is evident that at the CMC, Vellore he had to incur Rs.1, 02,069=00 and Rs.30,118=00 on two occasions only for hospital treatment, and pharmacy bills reveal the expenditure to the tune of Rs.13,084=00 & Rs.5,185=00, hotel charge for Rs.28,692=00, train fare Rs. 18,319=00, air fare (for the patient only) Rs.12,242=00, taxi fare to the tune of Rs. 3,000=00. Therefore, after the burn injury the complainant had to incur about Rs. 2, 00,000=00 to get relief from his physical pain. As there was no contribution on behalf of the complainant for such injury, the OP-1 & 3 under obligation for making payment of the said amount to the complainant. Though no occasion arose for making payment towards the subsequent treatment at the Mission Hospital, but admittedly the complainant had to suffer from his physical pain, mental harassment and trauma, which is an example of medical negligence as well as deficiency in service on behalf of the OP-1 & 3.
28. But in our view inspite of not taking of any amount for the subsequent treatment, the OP-1 & 3 cannot avoid their liability. Having held that there was negligence on the part of the OPs in providing proper medical treatment, the ultimate question is as to what should be the reasonable amount towards compensation, which the Complainant is entitled to get in the present case. What is meant by compensation within the meaning of the Section 14 of the Consumer Protection Act, 1986 has been considered and answered by the Hon’ble Supreme Court in the case of Gaziabad Development Authority vs. Balbir Singh (2004) 5 Supreme Court Cases 65, as under:

          “The word ‘Compensation’ is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, ‘compensating or being compensated; thing given as recompense’. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore when the Forum/Commission has been vested with jurisdiction to award value of goods or service and compensation it has to be construed widely enabling the Forum/Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.”

Besides it, the settled position is that:

          “A patient who has been injured by an act of medical negligence has suffered in a way which is recognized by the law and by the public at large as deserving compensation. This loss may be continuing and what may seem like an unduly large award may be little more than that sum which is required to compensate him for such matters as loss of future earnings and future cost of medical or nursing care. To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice. After all, there is no difference in legal theory between the consumer-Complainant injured through medical negligence and the Complainant injured in an industrial or motor accident.

          Under civil and consumer law compensation paid for medical negligence is neither punishment nor reward. The principle on which damages for case the medical negligence are assessed is that they are to be regarded as compensation for the injury sustained or death and not as punishment for the wrong inflicted. There is no difference in the principles applied to the assessment of damages in a medical negligence case and other actions for personal injuries, e.g., in motor accident claims.”

29. In the present case the Complainant has sought for an amount of Rs.19, 00,000=00 from the OP-1-4 towards compensation and cost. It is earlier mentioned that the Complainant had to incur huge expenses towards his treatment due to medical negligence of the OPs. Apart from financial loss the Complainant had to suffer physical and mental stress, agony and pain, which certainly cannot be compensated by making payment of compensation. We are of the view that as the Complainant has successfully proved that there was gross negligence on behalf of the OPs in providing treatment towards the Complainant, the Complainant is entitled to get suficient amount as compensation and litigation cost from the OPs. In our view that the amount as sought for by the Complainant towards compensation and cost in on the higher side. We are of the opinionthat it will meet justice if we direct the OPs for making payment of Rs.7, 10,000/- in total to the Complainant towards litigation cost, compensation and expenses incurred by him for later treatments etc.
30. Going by the foregoing discussion hence, it is

O r d e r e d

that the complaint is allowed on contest with cost. The OP-1 to 4 are directed for making payment of Rs.2,00,000=00 (Rs. Two lacs) only to the Complainant either severally or jointly towards the expenses incurred by him for later treatment, Rs.5,00,000=00 (Rs. Five lacs) only as compensation due to unnecessary harassment, mental & physical agony, mental trauma, physical pain and financial loss and litigation cost of Rs.10,000=00 (Rs. Ten thousand) only within 45 (forty five) days from the date of passing of this judgment, in default the entire decreetal amount shall carry interest @9% (nine per cent) per annum for the default period. 

            Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

                (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                 President       

                                                                                                                     DCDRF, Burdwan

                      (Silpi Majumder)                                                

                             Member                                                                 

                     DCDRF, Burdwan

                                                         (Pankaj Kumar Sinha)                          (Silpi Majumder)

                                                                  Member                                         Member    

                                                            DCDRF, Burdwan                                  DCDRF, Burdwan