Ld. Advocate(s)
For Complainant: Prodip Banerjee
For OP/OPs :Kajal Ghosh
Date of filing of the case :02.04.2018
Date of Disposal of the case :30.04.2024
Final Order / Judgment dtd.30.04.2024
The basic fact of the case of the complainant in a nutshell is that the complainant Mantu Seikh on 04.10.2015 at about 8 p.m. due to quarrel between the villagers, the complainant sustained severe injuries and he was taken to Bethuadahari hospital, Nadia on 05,10,2015 and X-ray was done from which it was found fracture on left elbow and he was discharged on 06.10.2015. At that time the complainant was referred to N.R.S. Hospital, Kolkata. Due to the complainant being a poor person he failed to admit in N.R.S Hospital as per direction of the doctors of Nadia. The complainant suffered tremendous pain for which he met with the OP No.1 Dr. MD. Sajid Menon, Orthopaedic Surgeon in his chamber at Chunaripara , Krishnagar on 07.10.2015. As per advice of the OP No.1 the complainant was admitted to Anjali Aroggya Niketan Nursing Home on the same date. The OP No.1 operated the complainant and a rod was fixed on the fractured portion. Doctor advised some medicines and discharged on 10.10.2015 after taking of Rs.20,000/-. But the pain was not reduced rather it was increasing . The puss and blood was coming out from the operated portion. Actually the pain had been increasing day by day. Finding no other alternative the complainant was again medically treated by OP No.1 on 21.10.2015 who prescribed certain medicines and took Rs.200/- towards his fees with a direction to review after two weeks . Subsequently, the complainant was further medically treated about OP No.1 on 06.11.2015. 13.11.2015, 25.11.2015. 08.12.2015, 31.12.2015, 12.01.2016, 26.01.2016 and 16.02.2016 by taking fees of Rs.200/- each time with a direction to review after two weeks and sometimes after one week. On 12.01.2016 the OP conducted second operation with debridement and sequestretomy was done and discharged on 19.01.2016. The OP No.3 conducted third operation on 03.04.2016 debridement and closure – major with charge Rs.20,000/- but no receipt was given and the complainant was discharged on the same date. Despite repeated treatment the pain and trauma of the complainant did not reduce. So, finding no other alternative the complainant lost faith upon the doctor OP No.1 and decided to be medically treated at Bangalore. The complainant sold his landed property and with that money he was medically treated at Swastha Hospital Bangalore under Dr. Pavan H.M on 27.07.2016 and discharged on 23.09.2016. Doctor of SVASTHA Hospital diagnosed osteomyolitis of left Ulna with sequestrum wound debridement and sequestration were done under G.A. The Chief complain of the complainant was pain with discharging sinus of left elbow. After operation at Bangalore the complainant is now free from any disease but the left hand of the complainant lost its working. Due to gross negligence of Doctor OP No.1, complainant failed to perform any work with his left hand which has been paralysed . So, the complainant lodged complaint to OP No.1&2 and other authorities on 06.02.2017 but they did not reply. The complainant also applied for bed head ticket for three operations but the OP did not give it.
The OP No.2, however, informed the complainant that on 28.06.2017 original documents had been deposited to ACMOH, Nadia. On 03.03.2017 Medical Council , Nadia directed West Bengal Medical Council to take necessary action against the wrong done by OP No.1. On 04.05.2017 the Superintendent District Hospital ,Nadia requested the Op No.1 to appear before the Medical Board but the letter was sent to complainant on 06.05.2017 which he received on 09.05.2017. The complainant raised objection against the same on 11.05.2017. The Medical report is not perfect and impartial because his Dr. Anirban Jana , surgeon is the regular doctor of the nursing home . The CMOH, Nadia by a letter dated 04.07.2017 informed inter-alia that as per complaint of Menon Seikh one investigation was made by expert team of District Hospital , Nadia. The committee found that Dr. S. Menon’s line of treatment was not proper for the patient. The complainant has been suffering due to gross negligence by OP NO.1&2. So, there are gross deficiency in service and OP No.1&2. The complainant prayed for compensation for Rs.18,00,000/- for the wrong treatment of OP No.1, Rs.1,50,000/- towards cost of medical treatment and Rs.20,000/- towards litigation cost. The cause of action arose on 03.04.2016 on subsequent dates.
The OP NO.1&2 contested the case by filing the W/V. OP NO.3,4,5&6 not to contest the case and as such the case is being heard ex-parte against OP No.3,4,5&6.
The OP No.1&2 contested the case by filing W/V wherein they challenged the case as not maintainable and barred by limitation Act.
The positive Defence case of OP No.1 Dr. MD. S. Menon in brief is that the OP No.1 being a doctor is attached with Anjali Nursing Home, Krishnagar, Nadia. On 07.10.2015 the OP No.1 admitted the complainant M. Seikh in this nursing home . At that time the patient was admitted with trauma due to assault by his elder brother for some family dispute. OP No.1 explained him about necessity of operation and complication of operation like infection and non-union before admission in the nursing home. After being agreed OP No.1 operated him for fracture of olecranon by tension bend wearing and close reduction of radial hand, patient was discharged on 10.10.2015. The OP No.1 received Rs.15,000/- as package of operation . The patient was already upto two weeks of operation. After two weeks there was pus discharge came out from operative site. The patient is a chronic smoking , smokes 20-25-bidis/ day. The OP No.1 warned the patient at the time of discharge to give up smoking but the patient did not follow the instruction and continued smoking . After that the OP No.1 prescribed some antibiotic and explained the patient about hazards of smoking. After infection persisted the OP No.1 decided to operate the complainant and it was done after three months of first surgery . The second surgery was done under Rashtriyo Swastha Bima Yojana at Anjali Nursing Home on 12.01.2016. During the 2nd surgery OP No.1 removed all the implants and through debridement and saline wash and questrectorny carefully and again fixed with function bend writing. The patient was discharged on 19.01.2016 with antibiotics and it was explained to the patient to give up smoking but he did not follow up the instruction. So, again infection was seen over operative wound . The OP No.1 advised to wound upto fracture healing . the OP No.1 continued perusing and gave all the antibiotics . After three months of 2nd surgery fracture was united. OP No.1decided to implant removal . And removal was done under Swastha Bima Yojana at Anjali Nursing Home on 30.04.2016. OP No.1 during operation found that fracture was united . So, all the implants were removed and debridement done. After through saline wash the patient was discharged on 03.05.2016. After 3rd surgery the patient was alright and wound was healed and stitches were removed after two weeks but the patient did not visit to Op No.1 for long time. After one month the patient suddenly and informed that he went to other hospital for treatment and he is alright. And demanded cash from OP No.1. Due to refusal the patient threatened OP No.1 for false case. The patient is a habitual offender and chronic smoking . It can be major cause of antibiotic failure and causes of infection. The patient did not follow the instruction of OP No.1. The OP NO.1 has no deficiency in service . So, the complainant is not entitled to get the compensation as prayed for. The OP No.1 claimed that the case is liable to be dismissed with cost.
The positive defence of OP NO.2 in brief is that the present case is not maintainable and barred by mis-joinder and non-joinder necessary parties. There is no cause of action to file the present case. The OP No.2 Anjali Nursing Home has no negligence. They provided best and available services and care. The documents would speak the truth of the services provided and the same were provided as per medical prescription. There is no deficiency in service or administration of healthcare facilities. The OP No.2 claimed that the case is liable to be dismissed with cost.
The conflicting pleadings of the parties of this case let this Commission to ascertain the following points for proper adjudication of this case.
Points for Determination
Point No.1.
Whether the present case is maintainable under the law.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
The OP No.1 challenged the case as not maintainable and barred by limitation.
The complainant claimed that the complainant was medically treated by OP No.1 Dr. Md. Sajid Menon at OP No.2 Anjali Aroggya Niketan Nursing Home. The OP No.1 admitted that the patient namely Mantu Seikh was admitted in the said nursing home and he operated him for fracture olecranon. The patient was discharged on 10.10.2015. The OP No.1 received Rs.15,000/- as package of operation.
Thus having perused pleadings of both the parties it stands well established that the complainant was medically treated by OP No.1&2 for which the complainant paid Rs.15,000/- as per the version of OP No.1. Accordingly, the relations between the complainant and the OPs falls within the purview of C.P. Act, as such the complainant is a consumer under the C.P Act.
The Complainant claimed that the cause of action for the present case arose on 03.04.2016 and on subsequent dates upto 04.07.2017. The OP No.l did not deny the said averment. OP No.2 in their W/V also could not controvert the said pleadings. The present case is filed on 02.04.2018 which is well within the limitation period of the case. So, it is held that case is not barred by limitation.
OP No.3,4,5 &6 did not contest and as such the case is heard ex-parte against them.
In view of the aforesaid observation Commission is of the opinion that the present case is maintainable in law and not barred by any provisions of law.
Point No.1 is accordingly decided in favour of the complainant.
Point No.2&3.
The complainant in order to substantiate the case adduced both oral evidence in the form of affidavit in chief and documentary evidence by filing different documents as per the list of documents filed by the complainant.
No.1 is the emergency ticket dated 04.10.2015 in the name of Mantu Seikh which shows that he was medically treated due to physical assault .
No.2 is the discharge certificate of District Hospital dated 06.10.2015 by which he was referred dated 06.10.2015.
No.3 is the discharge certificate dated 10.10.2015 in the name of the complainant for his medical treatment at Anjali Aroggya Niketan Nursing Home.
No.4 is the discharge Summary of SVASTHA Hospital Bangalore with date of admission on 22.09.2016 and date of discharge on 23.09.2016.
No.5 is the letter to the Ministry of Health & Family Welfare with copy to other departments by the complainant dated 06.02.2017 for taking steps against the doctor OP No.1 and the Nursing Home OP No.2.
No.6 is the prescription by OP No.1 doctor in the name of complainant dated 13.11.2015.
No.7 is the prescription issued by OP No.1 doctor in the name of complainant dated 08.12.2015.
No.8 is the prescription of OP No.1 doctor dated 16.02.2016 in the name of the complainant.
No.9 is the medical prescription issued by OP No.1 doctor in the name of the complainant dated 23.04.2016.
No. 10 is the letter by Director of Health Services dated 12.07.2017 issued to the complainant.
No.11 is the letter of CMOH to the Secretary, WBMC dated 04.07.2017.
No.12 is the letter by the complainant to the Manager, Anjali Aroggya Niketan Nursing Home dated 13.06.2017.
No.13 is the letter by the complainant to the Ministry of Health and Family Welfare Department Government of West Bengal.
It is the specific allegation of the complainant that the complainant frequently visited to the OP No.1 Dr. Md. Sajid Menon on 07.10.2015, 21.10.2015, 06.11.2015, 13.11.2015, 25.11.2015, 08.12.2015, 31.12.2015, 12.01.2016, 26.01.2016 and 16.02.2016 by taking money each time.
The OP No.1 did not deny that he did not medically treat the complainant.
It is the specific averment of OP No.1 that he is attached with the Anjali Aroggya Niketan Nursing Home , Krishnagar, Nadia that is OP No.2. The complainant Mantu Seikh was admitted in Nursing Home due to assault by his brother. The OP No.1 explained him about the necessity of operation and complication of operation like infection and non-union before admission in Nursing Home. After being agreed the OP No.1 operated him for fracture of Olecranon by tension bend wearing and close reduction of radial hand. But patient was discharged on 10.10.2015. The OP No.1 received Rs.15,000/- as package. The 2nd surgery was done under Rashtriya Swastha Bima Yojana at OP No.2 Nursing Home on 12.01.2016. During 2nd surgery the OP No.1 removed all the implants and through debridement and saline wash and sequestrectorny carefully, and fix again with tension bend writing , patient was discharged on 19.01.2016 with antibiotics with advice to give up smoking but he did not follow the instruction. So infection was seen over operative wound. At that time OP No.1 waited for union of fracture and advised to wait upto fracture healing . Then the OP no.1 continued to dressing and gave all antibiotics. After three months of 2nd surgery fracture was united. Then OP No.1 planned to implant removal and removal was done at Op NO.2 Nursing Home on 30.04.2016 under Rashtriya Swastha Bima Yojana at OP No.2 Nursing Home on 30.04.2016. During operation OP No.1 found fracture united. The patient was discharged . After third surgery the patient was alright and wound was healthy and stitch removed after two weeks, but the patient did not visit to this OP No.1 for long time .
Thus mere plain reading of the pleading of the OP No.1 discloses that the OP No.1 doctor undergone three times operation upon the complainant.
However, Ld. Defence Counsel for OP no.1 argued that the complainant could not file document of three times operation by the OP No.1. The said argument is not acceptable in as much as it is the settled position of law that admitted facts need not be proved. The OP NO.1 categorically admitted that he operated the complainant for three times. But one important point to consider is that the OP NO.1 took the defence that the OP No.1 doctor warned the complainant to give up smoking because it may aggravate the cause of infection.
Ld. Advocate for the complainant argued that the said defence plea of OP NO.1 is not genuine and it is purposefully created to defend the case.
The argument has reasonable force in as much as after perusing the three prescriptions issued by OP No.1, it is found that there is no warning or caution given by the doctor OP No.1 to the patient complainant that the patient should avoid smoking or give up smoking. The four prescriptions of doctor OP No.1 dated 13.11.2015, 08.12.2015, 16.02.2016 and 23.04.2016 does not show a single word about the caution for giving up smoking or avoiding smoking by the complainant.
The medical prescription of OP No.1 doctor discloses about some medicines but it does not disclose what type of treatment done or any advice to the patient except some use of medicines in which prescription only the use of medicine and review after two weeks and one week are written.
Therefore , the defence plea that the patient did not follow the instruction of OP No.1 and due to smoking the antibiotic failure with infection caused has no leg to stand.
Ld. Advocate for the complainant also argued that the OP No.1 Dr. Md. Sajid Menon did not deny the specific pleading of the complainant in his W/V.
After perusing the W/V of OP No.1 it appears that the OP No.1 did not deny this specific allegation made out by the complainant in different paragraphs from page 2 to 11.
It is the rule of pleadings that all the denial should be specific. If any part of the pleading is not denied specifically then it shall be deemed to have been admitted. Mere, evasive denial is not sufficient. Unless there is specific denial the facts and allegations made out in the complaint shall be deemed to have been admitted. The OP No.1seems to have not categorically denied the allegation but evasively denied through only paragraph no. 3 and 4 of his W/V which is not sufficient to deny all the specific allegations.
So, also the OP No.2 could not deny the allegation specifically they have also just made an evasive denial.
Thus having assessed the entire oral and documentary evidence of the complainant and the OPs vis-a-vis the additional evidence came out in course of cross-examination in the form of interrogatories and its replies, the Commission comes to the finding that the OP NO.1 and OP No.2 conducted the medical treatment of the complainant in a manner which tantamounts to deficiency in service and as such the complainant should be compensated , in terms of money.
In the backdrop of the aforesaid discussion and assessment of evidence the Commission holds that the complainant successfully proved the case against all the OPs upto the hilt.
Accordingly , point 2 &3 are answered in affirmative and decided in favour of the complainant.
In the result the complaint case succeeds on contest with cost.
Hence,
It is
Ordered
that the complaint case no.CC/42/2018 be and the same is allowed on contest against OP No.1&2 and ex-parte against OP NO.3-6 with cost of Rs.10,000/- (Rupees ten thousand). The complainant do get an award for a sum of Rs.2,00,000/- (Rupees two lakhs) towards compensation for medical negligence and Rs.1,50,000/- ( Rupees one lakh fifty thousand) towards cost of medical treatment. The OP No.1&2 are jointly and severally responsible to pay the said amount of compensation to the complainant. Both the OP No.1&2 are directed to pay jointly and severally the said sum of Rs.3,60,000/- (Rupees three lakh sixty thousand) to the complainant within 30 days from the date of passing the final order failing which the entire award money shall carry an interest @8% p.a from the date of final order till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
............................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ .................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
........................................
MEMBER
( SHRI NIROD BARAN ROY CHOWDHURY)
