PER DR. S. M. KANTIKAR, MEMBER

1.       These two appeals have been filed by the appellants (original opposite parties) under section 19 of the Consumer Protection Act, 1986, against the impugned order dated 11.04.2018 passed in Consumer Complaint No. CC/234/2016 by the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as “the State Commission”) vide which, while allowing the consumer complaint, the opposite parties no. 1, 2 and 3 were directed to pay Rs. 2 lakh each and the opposite parties no. 4 & 5 doctors were also directed to pay Rs. 4 lakh each as compensation to the complainant failing which the awarded amount should also carry interest @ 9% per annum to be paid by the opposite parties.

2.       The brief facts of the case are that the complainant, Mamoni Khatoon, who was physically challenged / suffering from polio (80% handicapped) approached opposite party no. 1 on 10.11.2014 for fixation of Hip Knee Ankle Foot Orthosis (HKAFO) to facilitate easy and comfortable walking.  On 15.12.2014, she got admitted to OP-1-National Institute for Orthopedically Handicapped (herein-after referred as ‘NIOH’) for fixation of HKAFO under opposite party no. 4-Dr. A. Biswas, however, instead of fixation, the patient was referred to indoor physiotherapy and to MPO Department for necessary rehabilitation.  Almost after one month, for the trial, semi finished HKAFO was given to her.  She alleged that on 12.02.2015, while undergoing Indoor physiotherapy, the physiotherapist left the complainant without providing any support, therefore, she fell down and suffered severe injury to her polio affected leg. The treating doctor/OP-4 did not attend her that time.  After the injury, opposite party no. 5 - Dr. T. Das plastered her injured leg on 19.02.2015 and discharged on 27.03.2015, however, severe pain continued.  She visited SSKM hospital on 27.03.2015 and Ulberia S.D. Hospital on 03.04.2015 where the injured leg was again plastered and the complainant was further referred to R.G. Kar Medical College and Hospital.  The complainant alleged that, due to medical negligence and deficiency in service from opposite parties, her easy and comfortable walking was not restored. Being aggrieved, she filed a complaint before the State Commission. 

3.       The State Commission decided the matter ex-parte against the opposite parties and the complaint was allowed.  The doctors - opposite parties no. 4 and 5 are directed to pay Rs. 4 lakh each and OPs 1 to 3 were held vicariously liable to pay Rs. 2 lakh each.

4.       Being aggrieved, OPs have filed first appeals before this Commission.  The NIOH (OP-1) with OP-2, 3 & 4 filed F.A. No. 1092 of 2018 and Dr. T. Das (OP-5) filed F.A. No. 1053 of 2018.

5.       We have heard the learned counsel for the appellants and perused the material on record. Learned counsel for complainant argued that patient was admitted to NIOH for the basic purpose of providing HKAFO. Instead of taking proper step for fitting of HKAFO, the doctor at NIOH referred the patient to indoor physiotherapy.  During physiotherapy the concerned physiotherapist carelessly left the complainant without providing any support, and as a result the complainant fell down and suffered injury to her polio affected right leg. Even the treating doctor, i.e. the OP No. 4, did not attend it, which was deficiency in service from the OPs. Similarly, OPs No. 1, 2 & 3 are vicariously liable. The counsel placed reliance upon the decision of the Hon’ble Supreme Court in Smt. Savita Garg vs. National Heart Institute, reported in 2014 (4) 258 (SC).

6.       Dr. T. Das plastered the affected leg and gave her medicine.  The Director, Dr. A. Biswas, never attended the patient, but threatened the patient to keep mum.  A local Bengali daily newspaper took up her plight to get proper treatment.  Counsel further submitted that Dr. P. K. Pyne, a visiting Psychiatrist, was also called for her treatment even though she had no psychiatric problem. 

7.        Learned counsel for the appellant submitted that Dr. T. Das was a visiting orthopedician of NIOH. He was on leave on the date when the patient fell down. However, he saw the X-Ray on ‘whatsApp massage’ and found that there was no fracture. He advised NSAID (pain killers) over the phone. The patient was seen by the resident doctor.  There was no practice of regular hospital round by him. The psychiatrist Dr. Pyne was a visiting psychiatrist, who examined the patient for behavioural problems. The patient was crying and depressed for the pain and injury accordingly Dr. Pyne prescribed tranquilizers and antidepressants. Counsel further submitted that the patient was admitted under opposite party no. 2 - the Director, NIOH but he never examined or treated the patient, however, opposite party No. 2 was aware that patient never sustained fracture due to fall in the hospital. The patient was charged only for X-Rays. The counsel further submitted that the West Bengal Medical Council (WMC) had given clean chit to the doctors working at NIOH.

8.       We have perused the medical record and the order of WBMC dated 11.01.2018 and given thoughtful consideration to the arguments from both the sides.  The original record from the State Commission was also requisitioned.  It is an admitted fact that the patient had a post polio 80% deformity. The OP-institute is established under Department of Disabilities Affairs, Ministry of Social Justice and Empowerment, Government of India. The institute undertakes treatment and provides the necessary appliances to the physically handicapped patients for betterment of their life.  The patient was under treatment of various doctors. She was admitted for orthosis (HKAFO) fitment during the physiotherapy.  Due to alleged fall, the doctor at NIOH immediately examined her and X-ray was taken and Dr. T. Das plastered the affected leg of the complainant on 19.02.2015. The plaster was removed by Dr. T. Das on 18.05.2015 and thereafter the patient was kept under observation. The patient was under treatment at NIOH for 102 days. In our view the OP-institute and doctors have taken due care to treat the patient. After the alleged fall the patient was advised proper medicines as pain killers and voveran gel. There was no fracture in the right knee bones.

9.       The Expert Committee of WBMC did not find any negligence on the part of opposite parties – doctors at NIOH.  The Expert Committee report is reproduced as below:

“Comment

On analyzing the depositions, it was observed that there was no negligence in treatment on the part of doctors and her medical problems were promptly attended.  Regarding administrative problems it is beyond the purview of WBMC.  But the practice of seeing X-Ray on Whatsapp and regular rounds only by Resident should better be avoided.

The Council, at its meeting dated 01.11.2017, considered the report of the concerned P & E Cases Committee and concurred with their observation that there was no negligence on the part of the attending medical practitioner / s.  In so far as the administrative aspects involved in the case, the Council agreed that they were beyond the scope of consideration by them.”

10.     It is pertinent to note that the State Commission held that due to severe injury suffered by the patient, the plaster was applied repeatedly to the knee joint of the patient.  However, in our view, there is need of plaster when there is severe injury or trauma and also plaster being done to alleviate even the minor pain and to keep the joint immobile.  For the severity of pain and patient’s behaviour, the doctor referred the patient to Psychiatrist.  We also note that NIOH is an autonomous body under the Department of Empowerment of Persons with Disability, Ministry of Social Justice and Empowerment, Government of India and was established in the year 1978, discharging social duties all over India by providing rehabilitation services to various down trodden people of the society who suffer from various disabilities and has acquired considerable amount of goodwill, reputation and accolades in medical fitment all over the country.

11.     Considering the entirety of the case, we do not find any negligence either on the part of the doctors or the institute during the treatment of the patient.  Therefore, we allow both the appeals and set aside the impugned order of the State Commission.

12.     Consequently, the complaint is dismissed. 

          However, there shall be no order as to cost.