State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027



S.C. CASE NO. : 11/O/2002



DATE OF FILING : 19.02.2002 DATE OF FINAL ORDER: 25.03.2009


COMPLAINANT



Sri Shyamal Kiran Bhattacharyya

S/o Late Kaliratan Bhattacharyya

Residing at C/o. Sri Ashutosh Ghosh,

Ghoshpara, Khalpar,

South Santoshpur, P.S. Jadavpur,

Kolkata-700 032.



OPPOSITE PARTIES



1. Dr. B.Paul @ Bhuban Paul

Registration No. 46388

Residing at A-93/2/A-13, Kankulia Road

P.S. Gariahat, Kolkata-700 029

and having chamber at Narendra Seva Trust,

26, Gariahat Road, P.S. Jadavpur, Kolkata-700 031.

2. The Orthopaedic & Fracture Clinic

15/2, Sarat Bose Road, Kolkata-700 020.



BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY

MEMBER : MR. S.COARI



FOR THE PETITIONER / APPELLANT : Mr. H.Brahmachari, Ld. Advocate

FOR THE RESPONDENT / O.P.S.: Mr. A.K.Sil, Ld. Advocate (OP No. 1)

Mr. P.Bandhyopadhyay, Ld. Advocate

(OP No. 2)



: O R D E R :


MR. S.COARI, LD. MEMBER

The present complaint case has been filed by Sri Shyamal Kiran Bhattacharyya against the Ops namely (1) Dr. B.Pal and (2) The Orthopaedic & Fracture Clinic for compensation and damages to the tune of Rs. 8.00 lacs on the ground of medical negligence, sufferings, etc.

The complainant’s case, in brief, is that the complainant experienced left Hip-joint pain and after some preliminary medical check-ups ultimate approached the OP No. 1, Dr. B.Pal, who is an orthopaedic surgeon for medical relief whereupon he was advised for some clinical investigations. After completion of clinical investigation, on the advice of the OP No. 1 the complainant took admission in the Orthopaedic & Fracture Clinic, i.e. OP No. 2, for left hip-joint replacement at an estimated expenditure of Rs. 63,000/-. It is the complainant’s further case that the complainant was operated upon on 17.10.2000 by the OP No. 1 for hip-joint replacement of the left side and was discharged from the OP No. 2 on 22.10.2000 and was advised to bed-rest for six weeks. Thereafter from time to time the complainant approached the OP No. 1 as the complainant could not recover completely and was experiencing difficulties and pain while walking and on all occasions he was advised and assured by the OP No. 1 that in due course of time after proper rest and medication the complainant will fully recover from all his ailments. It is the further case of the complainant that even after long rest and subsequent medication on the advice of the OP No. 1 the complainant did not recover from his ailments and that too after expending of a sum of Rs. 1,30,000/- instead of Rs. 63,000/- as per the estimate given by the OP. The complainant took second opinion from some other orthopaedic surgeons and all of them opined that as the operation of hip-joint replacement done by the OP No. 1 was not successful due to medical negligence, it was necessary to have further hip-joint replacement of the complainant. The said orthopaedic surgeons also opined that during the operation conducted by the OP No. 1, the implant instruments were not properly fitted and there was ‘Acetabular Cup’ loosening and the broken part of the needle of the drilling machine was left inside the bone as the same was evident from the xray plate, which was causing great risk of life to the complainant and also the same caused great pain and discomfort to the complainant in pursuing his daily life. It is the complainant’s further case that the complainant had already suffered much both mentally and physically due to the negligence and wrongful treatment on the part of the Ops and even after expending huge amount of Rs. 1,30,000/- the complainant did not get desired relief and, hence, the present complaint has been filed after observing all the legal formalities for necessary pecuniary relief as already mentioned.

The case is being contested OP No. 1 and OP No. 2 by filing two separate written objections. The OP No. 1 in his written objection has denied all the material allegations put forward in the petition of complaint contending inter alia that the complaint petition is not maintainable under the law. This Commission has got no jurisdiction to entertain the complaint case as the same involved complicated facts and intricate points of law. The OP No. 1 has specifically stated that at no point of time he assured the complainant of full recovery. The operation of hip-joint replacement of the complainant was done after observing all the norms and procedures which are necessary for an operation of similar nature. There was no negligence on the part of the OP No. 1 in rendering medical help to the complainant. It is an admitted position that after the operation the prognosis was good and the complainant was recovering. But the subsequent development was not within the control of the OP No. 1. The allegation of the complainant that some other orthopaedic surgeons have opined adversely to the operation conducted by this OP is not tenable under admitted facts and circumstances of the present case. Those doctors have merely expressed their opinion in the prescriptions and have not stated anything in writing against the OP. The observations made by other orthopaedic surgeons are debatable one. After 9.4.01 the complainant did not turn up before the OP any more and as such for all subsequent happenings the OP No. 1 is not responsible or answerable. The OP has extended treatment to the complainant to the best of his skill and experience and following well-known standard and norms of medical science. There was no malafide on the part of the OP in rendering medical treatment to the complainant. The petition of complaint having been filed on all baseless allegations the same is liable to be dismissed with cost.

The OP No. 2 has also filed written objection thereby denying all the material averments of the complaint petition contending inter alia that the medical institution has done nothing wrong towards the medical management of the complainant as per medical advice. The OP No. 2 has made all arrangements for the complainant during the complainant’s stay and operation under the supervision and care of the OP No. 1. Whatever acts have been done on the part of OP No. 2 towards the medical management of the complainant were done as per medical advice only and as such, is in no manner liable for any damages, etc. as claimed by the complainant and the case is liable to be dismissed with cost.

Upon the pleadings of the parties the following issues have been framed for proper adjudication of the present case.

1. Is the complainant a Consumer?

2. Was there any medical negligence at the instance of the Ops as claimed by the complainant?

3. Was there any deficiency in service while rendering medical assistance and management to the complainant at the instance of the Ops as claimed by the complainant?

4. Is the complainant entitled to any relief as prayed for? What other relief/reliefs, if any, the complainant is entitled?

DECISION WITH REASONS

All the points are taken up together for the sake of convenience. At the time of advancing his submissions the Ld. Advocate for the Ops has submitted before us that in the present matter the complainant approached the OP No. 1 on 29.9.2000 with some complaint in walking for a prolong period. The OP No. 1 advised some clinical examination and also informed the complainant that he might have to undergo surgery. Ultimately the complainant was admitted in the concerned nursing home of OP No. 2 and underwent hip-joint replacement operation in due course of time. According to the Ld. Advocate, it is an admitted position that the operation was quite successful and the subsequent prognosis was also good. After release from the nursing home the complainant came to the OP No. 1 from time to time and the OP No. 1 with due care and best of his medical competence advised him accordingly. According to the Ld. Advocate, the complainant was experiencing some pain which was quite common in a case of operation of the present nature. Everything was going sound and fine. But ultimately for reasons best known to the complainant he did not turn up before the OP No. 1 after 9.4.01. It has been emphatically submitted before us that though the complainant has put forward a case of medical negligence at the instance of the Ops, the complainant has not taken care to adduce evidence of any medical expert in support of his case. According to the Ld. Advocate, in the absence of any medical expert’s evidence there is practically no scope on the part of this Commission to come to a right, correct and just conclusion in the present case. It has further been submitted on behalf of the OP that the complainant has tried to establish his case by producing some certificates of other orthopaedic surgeons, but without the evidence of those orthopaedic surgeons, their prescriptions etc. will not ipso facto help the complainant in any manner in establishing the allegations levelled against the Ops so far as it relates to medical negligence. In this regard, the Ld. Advocate for the OP have cited a decision reported in 2006 (2) CPJ 248 wherein it has been observed by the Hon’ble National Commission that the allegation of medical negligence have to be proved by expert evidence. The Ld. Advocate has also cited a decision reported in 2005 (2) CPJ 9 (NC) wherein it has been observed by the Hon’ble National Commission that the prescription/certificate is of no value in absence of affidavit from the doctors. On the other hand, according to the Ld. Advocate for the Ops, the evidences of doctors namely Dr. Swapan Roy Chowdhury and Dr. N.P.Deb Roy, who are medical experts in the field of medical science have unequivocally affirmed that the OP No. 1 has duly followed the standard medical norms in the treatment of the complainant. From the evidences of those two doctors it is palpably clear that there was absolutely no medical negligence in the matter of rendering medical help to the complainant at the instance of the Ops. It has further been submitted by the Ld. Advocae for the OP No. 1 that the decision reported in 1996 (2) SCC 634 at Para-14 and 2005 (6) SCC at Para-20 are very much relevant in this case inasmuch as in those two decisions it has been observed by the Hon’ble Court that if it is found that the doctor has treated his patient with due care and following standard medical norms, but desired result could not be achieved, then the same is not negligence and the doctor could not be made liable for the same. According to the Ld. Advocate, similarly, in this case when it is an admitted position that the operation of the complainant was quite uneventful and subsequent prognosis was also good, if something takes place thereby resulting some discomfort otherwise to the complainant, it should be accepted with smile and the complainant is debarred from making any sort of allegations as made out in the petition of complaint against the present Ops. It has also been submitted on behalf of the Ops that the subsequent development in the operative portion of the complainant is a normal and accepted phenomenon. The loosening of ‘Acetabular Cup’ component is a quite common in the field of medical surgery and similar happening having taken place in the case of the complainant it cannot be said that for this the Ops are responsible and they be charged with the allegations of medical negligence. While concluding his submissions the Ld. Advocate for the OP No. 1 has submitted that whatever discomfort or physical disability has been experienced by the complainant subsequent to the operation conducted by the OP No. 1 is a common and accepted medical complication and under no circumstances it can be termed as ‘medical negligence’. When the complainant has not adduced any medical expert evidence in support of his case, the complainant’s case has got no legs to stand and the same is liable to be dismissed.

We have duly considered the submissions put forward on behalf of the Ops as mentioned above and have also gone through the pleadings of the parties and the evidence on record including the supportive documents and different decisions cited at the time of hearing and find that in this case it is an admitted position that the complainant approached the OP No. 1 and on the advice of OP No. 1 after some preliminary check-ups got himself admitted to the nursing home, i.e. OP No. 2, and ultimately underwent total hip-joint replacement (THR) after expending a sum of Rs. 62,000/-. Ultimately the complainant was released from the nursing home. The initial prognosis was good. But thereafter as the complainant experienced some discomfort and pain, he attended the OP No. 1 from time to time whereupon the OP No. 1 gave him some medical advice, medicines, etc. But there was no relief to the complainant, who thereafter consulted some other orthopaedic surgeons and after further clinical tests, etc. it was detected that there was loosening of Acetabular Cup and existence of broken part of the drill needle was found embedded in the bone of the complainant. All these factors and subsequent events have compelled the complainant to institute the present case. We also find that at the time of hearing the complainant has examined himself only by swearing and filing an affidavit. On the other hand, besides the OP No. 1 two other doctors namely, Dr. Swapan Kr. Roy Choudhury and Dr. Narayan Prasad Deb Roy were examined as witnesses on behalf of the OPs. Now, on scrutiny of the evidence on record we find that the OP No. 1 in his affidavit while answering the questions for cross-examination namely, Question Nos. 28 and 38, has categorically admitted the presence of metallic strip anchored in the bone and according to the doctor, no intervention and/or steps were required to be taken for that purpose. The OP No. 1 while answering to further questions for cross-examination, specially while answering to Question No. 17, has answered the question which was like this –

“What type of serious complications may arise in this situation?

Ans. Pain.”

We have also taken a note of the fact that the witnesses namely, Dr. Swapan Kumar Roy Choudhury and Dr. Narayan Prasad Deb Roy, have also stated in their evidences that “the Acetabular Cup has come adrift from the Acetabular cavity. It was loose and faced almost vertically downward and a small vertical radio lucency seen medially at the bone-cement interface medial to middle part of the femoral steam.” Dr. Deb Roy has also admitted noticing a small metallic strip anchored in the middle wall of the Acetabulum after perusal of the xray plate dt. 29.11.2000. In this connection, we find much substance in the submissions put forward by the Ld. Advocate for the complainant, according to whom, the OP No. 1 though tried to suppress the detection of loosening of Acetabular Cup and detection of broken part of the drilling needle in the bone of the complainant, but he has been adequately falsified by his own witness, Dr. Swapan Kumar Roy Choudhury, according to whom, an xray plate dt. 3.4.01, which was much earlier than the date mentioned by the OP No. 1, discloses existence of some gap in the Acetablular Cup interface. In this connection, the OP No. 1 in his answer to a question, i.e. Question No. 24, has admitted that Acetabular Cup was found adrift from Acetabular cavity and it was loose and faced almost vertically downwards as it was evident from the xray plate dt. 29.5.01. In this connection, we also find some substance in the submissions put forward by the Ld. Advocate for the complainant, according to whom, by answering this Question No. 24 the OP No. 1 has practically admitted that the loosening was detected within six months from the operation. At the time of hearing much has been agitated before us on behalf of the Ops that in this case as the complainant has not produced any evidence of medical expert in support of his case, there is no scope to consider the allegation of medical negligence put forward by the complainant against the Ops. According to the Ld. Advocate for the Ops, there is practically no scope to explore the materials on record, as it stands, for the purpose of finding any iota of medical negligence on the part of the Ops as claimed by the complainant. According to the Ld. Advocate, in the absence of any medical expert evidence there is no alternative left before this Commission but to hold that the complainant’s case has got no legs to stand. We are unable to accept such proposition as put forward by the Ld. Advocate for the Ops. From the admitted position, as we find from the materials on record, it has become crystal clear that though within six months from the THR operation it was within the knowledge of the Ops that there was loosening of Acetabular Cup and that the broken part of needle of the drilling machine was found embedded in the bone of the complainant. In this connection, we also take notice of the fact that though the OP No. 1, who claims himself to be an orthopaedic surgeon having full knowledge of the subsequent development within a short period of THR, went on advising the complainant to take further rest and unnecessarily prescribed some other medicines though apparently from the face of the materials and situation it was certainly within his knowledge that those advices were futile and will not help the complainant in any manner so far as it relates to get any relief from his subsequent discomfort and pain. If that be the position, we are unable to accept the submissions put forward on behalf of the Ops that the subsequent development of the complainant after the THR operation was a natural phenomenon for that in any operation of present nature the risk factor is always there and if any post-operative untoward happening takes place, it is sheer misfortune on the part of the complainant and he should accept the situation with a smile. From the materials on record we find that when it is an admitted position that the operation conducted on the complainant at the instance of the OP No. 1 was not at all successful and that there was loosening of the Acetabular Cup and existence of broken part of the drilling needle embedded in the bone of the complainant, question of medical expert does not arise at all as all these subsequent happenings are understandable through ordinary and common prudence. In this regard, we are unable to restrain ourselves from commenting that it was certainly unbecoming on the part of the OP No. 1 in not divulging the actual state of affairs to the complainant when the complainant approached him from time to time after THR operation when the complainant experienced physical difficulties and pain. In this regard, we are also unable to accept the submissions put forward on behalf of the Ops that the subsequent development at best can be attributed as medical complications and not medical negligence.

Thus considering the facts and circumstances of the case and in view of our above discussions we are of considered opinion that in the present case the complainant has been able to establish him as a Consumer as provided under the Consumer Protection Act, 1986 and that the complainant has also been able to substantiate his allegations put forward against the Ops as mentioned in the petition of complaint and that in this regard we can safely hold that the Ops are responsible for deficiency in service as well as medical negligence as claimed by the complainant and that the complainant is entitled to compensation for this. Considering the facts and circumstances of the case we are of opinion that ends of justice would be met if the complainant is awarded compensation to the tune of Rs. 2,00,000/- and also litigation cost of Rs. 50,000/-. All the points are accordingly disposed of. In the result, the petition of complaint succeeds in part.

Hence, ORDERED that the petition of complaint stands allowed on contest in part with litigation cost of Rs. 50,000/- (Rupees fifty thousand only). The complainant is also entitled to compensation of Rs. 2,00,000/- (Rupees two lakhs only) to be paid by the Ops who are jointly and severally liable to pay the compensation and cost so awarded to the complainant. The Ops are directed to pay the decretal amounts to the complainant within 45 (forth five) days from the date of communication of this order, failing which the complainant shall be at liberty to put the award into execution.



MEMBER MEMBER