Hon’ble Mr. Subhas Ch. Guin, Member.
The alleged medical negligence on the parts of the OPs has brought the complainant, Sri Pabitra Kumar Das who is a resident of village and P.O.-Natabari P.S- Tufanganj, Dist. Cooch Behar before this Commission for redressal of his grievances. The fact behind the complaint petition is that the complainant fell on the ground at his own house on 16-03-16 which caused him to feel severe pain in the knee joint of his right leg with thigh. Forth with, he was brought to Dr. Shamik Chaudhury, MBBS, D. Ortho. M.S (Ortho), an orthopedic surgeon (0P-1) for consultation for having relief from unbearable pain. On examination of his knee joint upto thigh, the OP-1 diagnosed him with fracture of shaft of right femur and advised him for early hospitalization for a surgical operation for rectification of the fractures and also prescribed some medicine. The complainant was admitted in Subham Hospital and Diagnostic Centre Pvt. Ltd (OP-2) on the same day i.e. on 16.03.16 and the OP 1 doctor performed the operation on 17-03-16 and discharged the patient on 20-03-16 with receipt of nursing home bill of Rs.41,000/- by the O.P-2 along with discharge summary and prescribed some medicine. But after taking those medicine, the complainant did not feel any Comfort for his unbearable pain and was brought to the OP-1 on 08.04.2016. The OP-1 examined him and prescribed some medicine to continue and advised that the problem would be removed with passage of time. Finding no improvement in his condition, he was brought to the op-1 on 15-07-16 for the third times. Again the op-1 examined him and advised for x-ray. The x-ray plate which was gone through by the O.P1 revealed that there was bone misalignment for which the OP-1 prescribed some medicine. No improvement was found in his condition rather his condition was deteriorating day by day. Being puzzled the complainant went to Dr. Amlan Bhadra MBBSD. Ortho of Cooch Behar on 22-07-2016 who advised for x-ray of his whole femur bone which was done at Aarogya heath care, Cooch Behar on the same day. This x-ray report revealed that “post operative case of fracture of proximal shaft of femme with IM nail in situ. There is posterior amalgamation of bone present". This report was prepared by Dr. Basundev Halder M.D (Radio Diagnosis). On receipt of such x-ray report, the Complainant became at a loss, and set out for Patna, Bihar with a view to getting relief from the acute pain where he saw Dr. Rajeev Anand, Asstt. Professor orthopedics on 03-08-16. Dr. Anand examined him and advised for some physical test and x-ray. After looking over all those test report. Dr. Anand advised for another operation which was performed by him at Anand Nursing Home Patna on 11-08-16 and prescribed some medicine to continue. On 23-08-16, the complainant again went to Dr. Anand for check up who further prescribed some medicine for a few days and assured him of his coming to normal life within short period.
The Complainant began to follow Dr. Anand’s advice and he was feeling comfort like magic and ultimately he was relieved of his unbearable pain and he was fine. Therefore, the Complainant came to know from the treatment of the O.P.-1 and Dr. Rajeev Anand that there was lack of attention to the treatment of the complainant by the op-1 which revealed from the documents of 15-07-26 and 22-07-16. As bone misalignment was found in the X-Ray, the treatment with medicine by the OP-1 was not proper which required another operation. That operation was performed by Dr. Rajeev Anand after which bone alignment was perfect as seen in the x-ray plate done under Dr.Anand. As a result, it was noticed that the complainant was fine and ok after a short period of time after the operation by Dr.Anand. From the above observation it was easy to perceive that the treatment by the OPs was with ordinary skill and care which amounted to medical negligence. This medical negligence on the parts of the OPs caused the Complainant suffered mentally, physically and financially. The Complainant incurred a loss of Rs.459981 against the medical expense at Cooch Behar and Patna and at the same time he lost in his business during 5 months at a stretch (from 16.03.16 to 03.08.16) which in turn caused him suffered irreparable loss and mental exhaustion.
Finding no other alternative, the Complainant filed this case before the Commission, the cause of action of which arose on 15.07.16 and 22.7.16 when he came to know from the X-ray plate and report that there was bone misalignment after operation by the O.P. 1. He prayed for a direction to the O.P.s to pay Rs.4,59,981/- for total medical expense at Cooch Behar and Patna and business loss, Rs.5,00,000/- for medical negligence and deficiency in service, RS.15000/- for cost of litigation.
The O.Ps contested the case by filing W/V, evidence on affidavit and some related documents. The OP-1 in his defence stated at the outset that the case was bad for non-joinder and mis-joinder of parties as the complainant was seen by other doctors and tests were done by other diagnostic centre who were not made parties to this case and the case could not proceed without impleading them. He also stated that the O.P.-1, Dr. Shamik Chaudhury was a orthopedic surgeon having MS (ortho) degree in his credential and had wide experience in his field which brought the complainant, Mr. Pabitra Kumar Das being suffered of facture in shaft of right femur on 16.03.16. The O.P. 1 upon proper preoperative investigations and keeping in mind the critical condition of the patient at that point of time advised him for an early hospitalization for a surgical procedure for rectification of the facture and prescribed some medicine also. On the same day i.e. on 16.03.16, the
Complainant got admitted in Subham Hospital and Diagnostic Centre, Coochbehar (OP-2) and the OP.1 doctor performed the procedure with interlocking nailing for fracture of proximal shaft of right femur on 17-03-16 at the OP-2 hospital by following medical norms and prescribed procedure for restoration of movement and reunion of the fracture within due course of time. The said procedure was uneventful and thereafter the patient had an uneventful recovery which prompted the OP-1 to discharge the patient on 20-03-16 in a stable condition. The OP-1 also advised him to take some medicine as needed at that point of love for speedy recovery with piece of advice to review on 30-03-16. The OP-1 categorically mentioned in his evidence on affidavit that prior to performing that procedure, he explained the complainant, his guardians and relatives present there about all complications which might arise from such procedure and they had given consent in writing after getting the consequences of such procedure. The Complainant, his guardian and one relative signed all forms, Authorization and bonds on 17-09-16 and thereafter the OP-1 proceeded to perform such procedure which was uneventful. Despite review date on 30-03-16 the Complainant visited the chamber of the OP-1 on 08-04-16 when on clinical examination the OP-1 found that surgical site was healed and he advised some medicine and X-ray of right thigh but the complainant did not make any adverse report. Again on 15-07-16 the complainant paid visit to OP-1 but no x-ray report / plate was supplied to the OP-1 as advised by him on 08-04-16 and finding no abnormality at the operation site, the op-1 prescribed some medicine. Since then the complainant never visited the chamber of the OP-1 for further treatment
Thereafter, the OP-1 came to know from the document filed that the complainant visited the chamber of Dr. Amlan Bhadra, orthopedic surgeon, Coochbehar on 28-07-83. In the prescription of Dr. Bhadra there was mention of Specific problem nor the said doctor opined anything adverse in connection with the treatment performed by the OP-1. As far as the treatment by Dr. Anand was concerned, the OP-1 asserted that he was not at all aware of such treatment nor did he admit such further treatment. The Complainant out of his own volition went to Patna for further treatment so the OP-1 could not be fastened for such expenses of the complainant. The OP-1 also asserted that the surgical procedure which was done by him was proper and uneventful. There was no negligence and carelessness on his part when he treated the patient in question nor there was any lack of care and skill and deficiency in services as alleged by the complainant. In fact the negligence that lay on the part of the patient and patient party as because being proper advised they did not follow up the instruction set forth by the O.P.No.1 doctor. So, the Complainant cannot blame any other including the OP-1. The OP-1 also denied that due to his carelessness the patient suffered physically, mentally and financially. That all the allegation as brought against the OP-1 was baseless and imaginary. The entire allegation as made in different paragraph of the complaint petition was false. The complainant with false allegations projected the case and claimed huge compensation for illegal bargain Therefore, under the aforesaid facts and circumstances the complaint case. is liable to be dismissed with cost and he is not entitled to get relief what so ever .
The OP-2 in his defence stated at the outset that the case was bad for non-joinder and mis-joinder of parties as the complainant was seen by other doctors and tests were done by other diagnostic centre who were not made parties to this case and the case could not proceed without impleading them. The OP.2, Subham Hospital and Diagnostic Centre Pvt. Limited asserted that one patient, Sri Pabitra Kumar Das was admitted in above said hospital under O.P. No.1 doctor on 16-03-16 with an history of fracture shaft of right femur and the OP.1 doctor performed the procedure with interlocking nailing for fracture of proximal shaft of right femur on 17-03-16 at the OP-2 hospital by following medical norms and prescribed procedure for restoration of movement and reunion of the fracture within due course of time. The said procedure was uneventful and thereafter the patient had an uneventful recovery which prompted the OP-1 to discharge the patient on 20-03-16 in a stable condition. The OP-1 also advised him to take some medicine as needed at that point of time for speedy recovery with a piece of advice to review on 30-03-16. The OP-1 categorically mentioned in his evidence on affidavit that prior to performing that procedure, he explained the complainant, his guardians and relatives present there about all complications which might arise from the such procedure and they had given consent in writing after getting the consequences of such produce. The Complainant, his guardian and one relative signed all forms, authorization and bonds on 17-09-16 and thereafter the OP-1 proceeded to perform such procedure which was uneventful. Despite review date on 30-03-16 the Complainant visited the chamber of the OP-1 on 08-04-16 when on clinical examination the OP-1 found that surgical site was healed and he advised some medicine and X-ray of right thigh but the complainant did not make any adverse report. Again on 15-07-16 the complainant paid visit to OP-1 but no x-ray report / plate was supplied to the OP-1 as advised by him on 08-04-16 and finding no abnormality at the operation site, the op-1 prescribed some medicine. Since then the complainant never visited the chamber of the OP-1 for further treatment
Thereafter, the OP-2 came to know from the document filed that the complainant visited the chamber of Dr. Amlan Bhadra, orthopedic surgeon, Coochbehar on 28-07-83. In the prescription of Dr. Bhadra there was mention of specific problem nor the said doctor opined anything adverse in connection with the treatment performed by the OP-2. As far as the treatment by Dr. Anand was concerned, the OP-2 asserted that he was not at all aware of such treatment nor did he admit such farther treatment. The complainant out of his own volition went to Patna for further treatment so the O.P. No.2 could not be fastened for such expenses of the complainant. There was no negligence and carelessness on his part when he treated the patient in question nor there was any lack of care and skill and deficiency in services as alleged by the complainant. In fact the negligence that lay on the part of the patient and patient party as because being proper advised they did not follow up the instruction set forth by the OP-1 doctor. So, the Complainant cannot blame any other including the OP-2. The OP-2 also denied that due to his carelessness the patient suffered physically, mentally and financially. That all the allegation as brought against the OP-1 was baseless and imaginary. The entire allegation as made in different paragraph of the complaint petition was false. The complainant with false allegations projected the ease and claimed huge compensation for illegal bargain Therefore, under the aforesaid facts and circumstances the complaint case. is liable to be dismissed with cost and he is not entitled to get relief what so ever .
Perused the pleadings and case records of both parties. Heard the argument of Ld. Advocates of both parties at length. Now it is imperative to discuss following points which have been arisen from the argument and its counter by the OPs.
Point for Consideration
- Whether there is any medical negligence on the part of the O.Ps?
- Whether the Complainant is entitled to get relief prayed for in the complaint petition?
Decision with reasons
Both points are taken up together for discussion as they are interlinked with each other and for brevity.
Point No.1 & 2.
The Complainant, Sri Pabitra Kumar Das got admitted under the O.P-1 doctor on his visit to the doctor in OP-2 hospital on 16-03-16 for his fracture in right femur and was discharged from the said hospital. on 20-03-16 after a surgical procedure done by the O.P-1 doctor on 17-03-16 (Anex-A). The Anex-A is the discharge summary of the hospital in which the complainant was admitted but there is no prescription of the O.P-1 on his first visit to the complainant. From the Anex-A, it is seen that the complainant was advised to review on 30.03.16 but the complainant did not review on time. On the contrary he reviewed on 08.04.16 when he was advised by the O.P-1 for x-ray of right thigh (Lt & AP) and to take some medicine for recovery. The prescription of the O.P-1 dt 08.04.16 (Anex-B) reveals that there is no mention of unbearable pain as alleged by the complainant in his complaint petition. On the other hand it shows a remark of the O.P- 1 doctor on the prescription "otherwise OK". On the next visit of the O.P-1 doctor on 15-07-16 (Anex-B overleaf), the O.P-1 doctor prescribed some medicine which includes one for pain but remarked on the prescription "union in progress. This remark made by the O.P-1 doctor indicates that the complainant was recovering after the surgical procedure with medicine given by the O.P-1. In every surgical procedure, the doctors generally prescribe some medicine for relief of pain. In this case also, the O.P-1 doctor prescribed some medicine for pain relief in two of his visit but nowhere in the prescription he mentioned unbearable pain of the complainant which generally doctor mention in the prescription after clinical examination and hearing the condition of the patient. Anex-C is the prescription of Dr. Amlan Bhadra who advised the complainant for x-ray of right femur (Lt & AP) and CT scan of (R) proximal femur & neck of femur with 3D reconstruction but he did not prescribed any medicine and mention any unbearable pain of the complainant in the said prescription.
Anex-D is the x-ray report done by Dr. Basudev Halder M.D (Radio Diagnosis) prescribed by the Dr. Amlan Bhadra where in it is mentioned that it is a post operative case of fracture of proximal shaft of femur with IM nail in situ. There is posterior amalgamation of bone present. The Complainant did not produce "X-ray report except the mentioned above which generally accompanies the X-ray plate but X-ray plate were exhibited at time of argument only.
Therefore, inference can be drawn that the complaint's fracture was not misaligned up to 22-07-16-which later diagnosed as mal-positioned on 09-08-16 by Dr. Rajeev Anand at Patna. The complainant was under the treatment of the O.P-1 from 16-03-16 to 15-07-16 and the during the period 20.03.2016 to 15.07.2016 the complainant had no problem. The complainant's problem started after 22-07-16 when he saw Dr. Amlan Bhadra. On visiting Dr. Rajeev Anand the complainant came to know about the misalignment of the bones and that misalignment was rectified by bone grafting on 09-08-16 . Therefore, the Complainant can not prove any evidence in support of his claim that the O.P-1 had performed the surgical procedure with ordinary care and skill and he was negligent medically or he had deficiency in service.
On the other hand, the O.P-2, Subham Hospital and Diagnostic Centre Pvt. Ltd was made party to this case by the complainant but there is not a single word against treatment/care/service rendered by the O.P-2 in the Complaint petition. The diagnosis of the patient and test and medicine prescribed by the attending doctors cannot be controlled by the nursing home. There was no evidence filed by the complainant to prove deficiency in service against the OP-2. Therefore the allegation of deficiency in service against the O.P-2 is not established.
Considering all aspect, the Commission comes to the finding that the medical negligence or deficiency in service on parts of both OPs can not be established. So, the complainant is not entitled to get any relief what so ever as prayed for in his petition.
Therefore, both points are answered in negative and decided against the Complainant.
In the result, the complaint case fails on contest.
Hence, it is
Ordered
That the instant case be and the same is dismissed on contest without cost.
Let plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order / Judgement is also available on www.confonet.nic.in.
Dictated and corrected by me.
