West Bengal

Bankura

CC/9/2020

Sri Ganesh Kotal - Complainant(s)

Versus

Dr. Kundan Kundu Khatra S.D Hospital - Opp.Party(s)

Kalyan Chatterjee

21 Dec 2023

ORDER

   IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA

  Consumer Complaint No. 09/2020

                                                       Date of Filing:   28/01/2020                                             

Before:                                        

1. Samiran Dutta                            Ld. President.      

2. Siddhartha Sankar Bhui            Ld. Member. 

 

For the Complainant:  Ld. Advocate Tapan De

For the O.P.:  Ld. Advocate Tapas Chowdhury

 

Complainant  

Sri Ganesh Kotal, On behalf of his minor son Aditya Kotal, S/o Late Sibu Kotal, Village – Ghatdihi, P.O. & P.S. – Kotulpur, Dist. Bankura .

Opposite Party

1. Dr. Kundan Kundu (Regd. No. 57140), Specialist Medical Officer, Khatra S.D. Hospital, P.O. & P.S. Khatra, Dist. Bankura.

     Permanent Residence: Arambagh Blue Print, Hospital Road, P.S. & P.S. Arambagh, Dist. Hooghly.

 

FINAL ORDER / JUDGEMENT

 

Order No.42

Dated:21-12-2023

Both parties file hazira through Advocate.

The case is fixed for argument.

After hearing argument from both sides the Commission proceeds to dispose of the case as hereunder: -

The Complainant’s case is that his son Aditya Kotal, aged  about 10 years, student of Class-IV fell from tree on 14/06/2019 as a result of which he sustained closed bone fracture/injury in his left fore arm and on that very day he was brought to the O.P.1 / Dr. for necessary treatment who without getting any X’ray report bandaged the bone fracture with Plaster of Paris (P.O.P.) cast. But next day i.e. 15/06/2019 he could not move his finger and again he was brought to O.P.1/Dr. for consultation on 16/06/2019 but the O.P. No.1/Dr. without rendering further treatment referred him to any Medical College. Accordingly the Complainant was compelled to get his son treated at Bankura Sammilani Medical College & Hospital (BSMCH) on that very day i.e. on 16/06/2019 but unfortunately the patient developed gangrene requiring immediate amputation and accordingly he was discharged on that very day i.e. on 16/06/2019 at the Patient Party’s own risk. Next day i.e. on 17/06/2019 the Complainant hurriedly got his son admitted at All India Institute of Medical Science (AIIMS), Bhubaneswar in the Department of Burns & Plastic Surgery where left arm of the victim patient was amputated and after undergoing post surgery treatment he was discharged on 19/07/2019 and thereafter the victim patient was on regular check up at AIIMS, Bhubaneswar for full and final recovery. The O.P./Dr. who initially treated the victim patient has been held liable by the Complainant for medical negligence in treatment of his son and as such he has approached this Commission claiming pecuniary compensation of Rs.17 Lakh for medical negligence against the O.P./Dr. together with non-pecuniary compensation of Rs.20 Lakh and Litigation Cost.

                                                                                                                                                                                           Contd……p/2

Page: 2

O.P. contested the case by filing an abstract written version which is full of legal theories and case laws. It is an evasive defence with fantasy. The core of defence case is found in Para-21 of the written version relevant portion of which reads as follows: -

“……….patient Aditya Kotal fell from the tree due to the negligence and carelessness of Complainant causing fracture of both bone fore arm. Patient suffered original trauma due to his own negligence and carelessness of Complainant. The fracture was neither created nor caused by O.P. O.P. is not even responsible for healing process of bone which depends upon several factors mainly age, bone, health, diet, rest. What O.P. does is just proper alignment of bones and advised regarding immobilization and physiotherapy. Once the bone is broken it cannot become normal like original bone. Patient and his parents themselves are negligent in creating original trauma, fracture and its subsequent trauma. Patient was brought  to O.P. on 14/06/2019 at his O.P.D. Investigations were done and the patient was treated  by above elbow P.O.P. cast. After the plaster the finger movement was checked and then the patient was released. After two days on 16/06/2019 the patient was brought in O.P.D. with inability to move the finger, the plaster was immediately removed and multiple blisters were  seen. Dressing was done and the patient was referred to nearby Medical College…..”

Further defence of O.P./Dr. is that he is not liable to pay compensation as he is insured with Professional Indemnity Policy with the Oriental Insurance Co. Ltd. at the relevant period vide Policy No.272200/48/2019/9704and as such said Insurance Co. should be made a party to this case.

                                                                                  -: Decision with reasons: -

Having regard to the facts of the case, submission, contention and documents from both sides the Commission finds that the victim patient who is a mere child suffered bone fracture injury in his left fore arm after falling from the tree and immediately he was brought on 14/06/2019 to O.P./Dr. who is an Orthopaedic surgeon. Though it is stated in his defence case as above that investigations were done but the essential investigation in such case  i.e. X’ray was not consulted at the time of bandaging the fracture wounds by P.O.P. cast. O.P./Dr. advised X’ray in his prescription dated: 14/06/2019 only but did not get X’ray done immediately which was the urgent requirement of the standard Orthopaedic treatment. The day after 14/06/2019 when the victim patient came to O.P./Dr. with complain of numbness in his finger the O.P./Dr. could sense a serious blunder in his treatment and so he had no other alternative but to refer the patient to other medical College to cover up his deficiency in treatment by suppressing the development of gangrene which was detected on the very day at BSMCH, Bankura as is evident from their Discharge Certificate and ultimately the victim patient got proper medical treatment at AIIMS, Bhubaneswar after taking the patient released on Personal Risk Bond from BSMCH, Bankura. 

Page: 3

It is now a well settled proposition of law that in medical negligence case a treating doctor is medically liable if he has fallen short of a standard medical care, skill and diligence. P.O.P. cast without consultation  of any X’ray report  in  a bone fracture injury case is an act of lack of  medical care and ignorance of detection of development of  gangrene at the subsequent stage speaks volume of lack of skill and the O.P./Dr. was also not diligent in providing necessary medical treatment to the victim patient at the relevant point of time  and Referral Discharge by him is a pointer to that fact. The Commission is of the firm view that wrongly done P.O.P. cast without proper investigation is the cause of development of gangrene though it is contended by the Ld. Advocate for the O.P./Dr. that without expert opinion this fact cannot be ascertained.

O.P./Dr. cannot escape the liability of his medical negligence leading to amputation of  left arm of the victim child making him permanently disabled. The victim child has lost his earning capacity with bodily impairment. Accordingly, considering the extent and dimension of damage and injury and the future impact Commission fixes the pecuniary compensation at Rs.10 Lakh for gross medical negligence and  non-pecuniary compensation at Rs.10 Lakh for loss of future life and  earning  capacity of the victim child.                                                                                                                                                          

 

Hence it is ordered……..

That the case be and the same is allowed on contest but without cost.

The O.P./Dr. is directed to pay to the Complainant Rs.20 Lakh in all as compensation for medical neglaigence in the treatment of the victim patient within one month from this date in default law will take its own course. The Insurer i.e. Oriental Insurance Co. Ltd. may be pursued by the O.P./Dr. for reimbursement of compensation to the maximum extent  of sum assured covered under the relevant Policy.

Both parties be supplied copy of this Judgement free of cost.

 

 ____________________                 _________________         

HON’BLE   PRESIDENT            HON’BLE MEMBER