Hon'ble Mr. Sudip Niyogi, President
The case of the Complainant in brief is that his mother Bina Saha had sustained injuries on her left leg from a sudden slip in their Bath Room on 11.09.13 and she was taken to Doctor i.e. OP No.1, who diagnosed “Comminuted Fracture Distal Femur (L)”and advised for undergoing Open Reduction Internal Fixation (ORIF) for proper reunion of the bones. Accordingly, she was admitted to OP No.2 Nursing Home on the very day for surgery on a package of Rs.70,000/- including cost of surgery, medicines and plate etc. Surgery was performed on 14.09.13 by OP No.1 and she was discharged from the Nursing Home on 16.09.13 after paying the Nursing Home Bill of Rs.70,000/- though allegedly no money receipt was issued to them. Said Bina Saha, since deceased, even by following the advice of OP No.1 and using the medicines advised by him did not experience comfort of complete cure and felt pain in her left side with breathing problem as well as fever. Accordingly, she visited OP No.1 on several occasions viz. 27.09.13, 16.11.13 and 28.01.14. However, she was told that with the passage of time, the pain would automatically stop. But, despite that fact, her condition got deteriorated and on 17.10.14 she met OP No.1 and on the next day, he diagnosed “Implant Failure due to banding of the Plate”. Thereafter, the family members of the said patient decided to take her to Paras HMRI Hospital at Patna and on 27.10.14 Doctors of the said Hospital diagnosed on several test reports which were done there “Infected non-union distal third left femur with implant failure”. In the said hospital, she had been there from 30.10.14 to 07.11.14, where an operation of Implant removal and wound debridenment plus ORIF with plating and bone cement with antibiotic was done. Subsequently, on 13.02.15, she was admitted to OP No.2 Nursing Home due to cardio-respiratory problem and ultimately she died there on 14.02.15.
It is alleged by the Complainant that despite requests, OP No.2 Nursing Home did not supply the treatment sheet of his mother in connection with her operation regarding fracture of her leg in the year 2013. The Complainant alleged negligent and deficiency in service on the part of the Ops in the matter of treatment of his mother. So, Complainant prayed for Rs.10 lakh on account of loss of life of Complainant’s mother and medical expenditure of Rs.4,65,508/-. Complainant also claimed Rs.10,000/- towards litigation cost and Rs. 5 lakh for mental pain, agony and harassment.
Both the Ops contested the case by filing separate written version and evidence. In the respective written version, both the Ops admitted about operation and treatment of said Bina Saha by OP No.1 at OP No.2 Nursing Home. According to OP No.1, the condition of the said patient was critical and considering the nature of fracture and to protect the leg, he advised for Open Reduction Internal Fixation (ORIF) and the said operation was done, which was uneventful and a locking buttress plate was applied on her left thigh bone. During her stay at the said Nursing Home, the pre-operative and post-operative care was uneventful and on 16.09.13, her wound was found well and dry without sign of any post-operative infection. Accordingly, she was discharged from the Nursing Home with advice to take proper medicines as prescribed by OP No.1 and not to bear any kind weight and asked for check up after 10 days. According to OP No.1, he had taken Rs.10,000/- for professional fees. On several dates, OP No.1 checked up the condition of the said patient and he found the wound was dried without any sign of any post-operative infection and he prescribed medicines and also advised some exercises. It was also found after about 4 months of the operation that the fracture site was uniting slowly and the patient’s condition was better. Thereafter, on 17.10.14 after about one year one month, the patient came to him and from X-ray report, it was found that there was failure implant and the plates were found to be bending due to trauma. The patient was then advised for undergoing another operation but they refused to do so, instead, requested him to take her to higher centre.
According to OP No. 2, operation was done properly and subsequent find about bending of plates was due to gross negligent on the part of the patient. So, both the Ops prayed for dismissal of the case.
From the materials on record, it is found that the Complainant filed the copies of several documents as Annexure A to G series, which are Discharge Certificate, Prescription of Doctor/OP No.1, OPD Card, Discharge summary and Bills issued by Paras HMRI Hospital at Patna etc. and Death Certificate of the patient.
The OP No.2 also filed copies of documents, which are made as Annexures AO to MO. This includes Admission Sheet of Bina Saha at OP No.2 Nursing Home, Indoor details, Medicine Chart, History Sheet etc.
POINTS FOR CONSIDERATION
- Is the instant case is maintainable ?
- Is there any deficiency in service on the part of the Ops, as alleged ?
- Is the Complainant is entitled to get any relief ?
- To what other relief, if any, Complainant is entitled ?
FINDINGS
Point No.1.
The Complainant also filed written argument in this case. From the materials on record, it is found admittedly that the patient Bina Saha since deceased having sustained fracture on her left leg approached OP No.1 and following his advice, she got admitted to OP No.2 Nursing Home, where operation was done by OP No.1. However, as the Complainant, who is the son of the said patient felt aggrieved as to the operation done on her mother. She came up with the instant complaint seeking the relief. During argument, Ops did not raise any question as to the maintainability of the instant case. So, considering the contention of the Complainant, the case is maintainable before this Forum.
Both parties filed their evidence on affidavit and also written argument. Complainant filed the following documents as Annexures.
Discharge certificate of his mother Bina Saha issued by Shila Nursing Home Annexure- A, Xerox copy of letter Annexure- B, Postal acknowledgment receipt Annexure- B/1 another letter Annexure- B/2, prescriptions issued by O.P. No.1 Annexure- C, C/1 & D Discharge summary issued by Paras HMRI Hospital, Patna Annexure –E & E/1 death certificate of Bina Saha issued by O.P. No.2 Annexure- F, Bills issued by Paras HMRI Hospital Annexure –G series.
O.P. No.2 also files the documents namely original admission sheet, indoor temperature chart, food chart Stat sheet, medicine sheet, History sheet, Investigation sheet etc.
Subsequently, O.P. No.2 also filed original treatment sheet etc of the said patient.
Point No.2
The Complainant is found to have claimed in this case that the O.P. No.1 had treated his mother in a casual manner which resulted in deficiencies in both preoperative and post operative care. Not only that, there was also failure on the part of O.P. No.1 to treat the patient and also to advise properly. There was lack of ordinary care and skill at the time of Open Reduction internal Fixation (ORIF). The aforesaid acts on the part of the O.Ps amounted to medical negligence and deficiency in service. According to Complainant, as a result of the death of his mother, they suffered mentally and financially.
The contentions of the Complainant that his mother had suffered Fracture Injuries or that subsequently contacted O.P. No.1 who conducted operation on her at O.P. No.2 Nursing Home are not denied on behalf of the O.Ps but they strongly denied the other allegations of negligence and deficiency in service etc.
From the materials, it is found that subsequently when O.P. No.1 opined for a second operation, the Complainant party took the patient to Paras HMRI Hospital, Patna where the said patient had been admitted from 30.11.14 to 07.11.14 and there Implant removal was done and Wound debridenment and ORIF with plating and bone cement with antibiotic were done. So, it is found the Complainant did not express any grievance with the treatment of his mother at the said Hospital at Patna. Naturally the said Hospital has not been made a party in this case. His grievance is only against the present O.Ps and regarding the operation which was evidently done prior to the operation made at the said Hospital at Patna.
However, subsequently on 14.02.15 said patient expired at O.P. No.2 Nursing Home and her death was due to Cardio respiratory failure. So, it is clear, that apparently there is no relation of her incident of death with the ORIF operation done at the O.P. No.2 Nursing Home by O.P. No.1 in the year 2013.
From the medical papers filed by the parties it is found that Bina Saha the mother of the Complainant was 58 years old at the relevant time and she had Comminuted Fracture Distal Femur(L) on her left leg and considering the nature of Fracture, Open Reduction Internal Fixation(ORIF) on her left leg was done for reunion of the bones and a locking buttress plate was applied at her left thigh bone. The said patient was admitted to O.P. No. 2 Nursing Home on 11.09.13 and operation was done on 14.09.13 and was discharged when wound was found well and dry with no sign of any post operative infection. Medicines were prescribed and she was also advised not to bear any weight. On 27.09.13 again the patient visited O.P. No.1 and at that time also the wound was found dry and some exercises of knee on sitting position was advised and there was also specific instruction not to bear any weight and she was also asked for check up after 6 weeks. On 28.01.14 the patient was found better and fracture was uniting slowly and the patient was allowed to bear normal weight and medicines were also prescribed and advised for TCA 3 months.
Thereafter, the patient visited the Doctor on 17.10.14 when on X-Ray it was found implant failure due to bending of the plate. According to O.P. No.1 the bending of the plate was due to trauma which the patient had again faced and she was advised to undergo an operation immediately and according to O.P. No.1 the patient party insisted for referring her to higher centre and accordingly he referred the patient to higher centre. O.P. No.1 stated that the plates were bending due to gross negligence on the part of the patient.
It is found that after the patient was found better and bones were found uniting on 28.01.14 the patient visited the Doctor on 17.10.14. In fact there is no explanation as to why the said patient came to O.P. No.1 long after she visited Op No.1 on 28.01.14, particularly when she was advised for check up after 3 months.
During argument Ld. Advocate for the Complainant claimed that proper plate having sufficient strength was not fixed properly by O.P. No.1 and as a result there was bending of the plate. Though in support of this claim, no proof was provided and even no expert opinion was also produced that the locking buttress which was applied was not fit and proper for the prevailing condition of the patient.
From the copy of the Medical Journals submitted on behalf of the Ops, it appears that the locking plate used for the patient cannot be said to be not ideal for the patient. Admittedly, the patient was an old lady. It is not clear if she had been suffering from any age related or other ailment. Undoubtedly, the presence of other diseases may boost the risk of non-union of fractured bones.
The Complainant did not put forth any reason as to why he took the patient to the Doctor OP No.1 after about nine months on 17.10.14 when she was asked on 28.01.14 to visit for check-up after 3 months. What actually happened during all these months whether the patient did follow the instruction of the Doctor or she suffered fall again due to her negligence is not known. This is important particularly when the patient was found improving gradually by OP No.1. The Medical Papers produced by the parties also reveal that both pre-operative and post-operative cares were also taken by the Ops. So, the allegation in this regard cannot have any substance.
Point No.3 and 4.
In view of our discussions as aforesaid in respect of the point No.2, we are compelled to hold that none of the allegations made by the Complainant against the Ops is found to have been proved. There is not a single iota of cogent evidence to fasten the OP No.1 with negligence as alleged. Therefore, we are compelled to hold that the Complainant is not entitled to any relief whatsoever in this case.
All the issues are thus disposed of.
So, the instant case is liable to be dismissed.
Hence, it is -
Ordered
That the instant complaint be and the same is dismissed on contest. However, no order as to costs.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost, for information and necessary action.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
