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ANUPAM BHATTACHARYYA V/S CALCUTTA MEDICAL RESEARCH INSTITUTE & ANOTHER, decided on Tuesday, April 21, 2015.
[ In the National Consumer Disputes Redressal Commission (NCDRC), Appeal No. 122 of 2008. ] 21/04/2015
Judge(s) : D.K. JAIN, PRESIDENT & VINAY KUMAR, MEMBER
Advocate(s) : Siddharth Bhatnagar, Amicus Curiae with In person. R1, Soumya Dutta, , R2, Nemo.
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    Appellant/Complainant was admitted into OP/hospital with a fracture of the left leg - He was treated by OP-2 - surgical operation was performed on his left femur bone -  In this surgery an IM (Intramedullary) Nail (rod) was implanted in his femur bone of the left leg by OP-2 - Iron Nail had not been properly fixed with screw for interlocking - surgery was performed negligently by OP-2 - Appellant was taken to Medical College where the broken Iron Nail was removed and another fresh nail was installed into his femur bone with proper interlocking – Complainant sought reimbursement of the entire cost of treatment together with compensation –Held that non-fixing of the second bolt amounted to a significant inexplicable and material departure from standard practice - OP-2 was admittedly aware that breaking of IM nails was not an uncommon phenomenon - during the course hearing of the appeal OP-2 had passed away - application was filed on behalf of OP-1/CMRI that on the ground of demise of the treating doctor the Appeal itself should abated - Considering the physical suffering undergone by the Complainant and resultant financial burden cast upon him lump sum compensation is awarded in his favour - allegation of medical negligence against the OPs is proved by evidence on record - appeal is allowed.Cases Referred:Dr Jacob Mathew Vs. State of Punjab and anr. III (2005) CPJ 9 (SC)Savita Garg Vs. Director National Heart Institute 2004 CTJ 1009 (Supreme Court)RP 4191 of 2008 Himanchal Kumari & Ors. Vs. Govt. of N.C.T. of Delhi & Ors. dated 27.01.2015Dr. Balram Prasad Vs. Kunal Saha and Ors. (2014) 1SCC 384.     Appellant/Complainant Anupam Bhattacharyya hails from Agartala Tripura. As per the Consumer Complaint before the State Commission he was admitted into OP/hospital Calcutta Medical Research Institute (CMRI) Kolkata on 12.8.1999 with a fracture of the left leg. He was treated by OP-2/Dr Subrata Dasgupta at CMRI. On 17.8.1999 a surgical operation was performed on his left femur bone and he was discharged on 27.8.1999. In this surgery an IM (Intramedullary) Nail (rod) was implanted in his femur bone of the left leg by OP-2. Thereafter he was checked by OP-2 on four occasions till 13.8.2000.2. Allegedly as per the advice given by OP-2 the Complainant had started walking without support of any crutch or stick. One morning he found suddenly that he was unable to move and suspected that Iron Nail had broken inside his leg. He was taken back to the OPs at CMRI on 3.9.2000. However the complaint petition does not show whether any diagnostic or corrective procedures were performed at CMRI in this visit.3. The main allegation against the OPs is that the Iron Nail had not been properly fixed with screw for interlocking. As claimed the surgery was performed negligently by OP-2/Dr. Subrata Dasgupta. As per the complaint petition the Appellant/Complainant was taken to Vellore Christian Medical Colleges where the broken Iron Nail was removed and another fresh nail was installed into his femur bone with proper interlocking.4. In his Complaint before the State Commission Complainant Anupam Bhattacharyya sought reimbursement of the entire cost of treatment together with compensation of Rs.12 lacs.5. OP-1/CMRI and OP-2/Dr. Subrata Dasgupta have filed separate replies before the State Commission. The case of CMRI was that it is a highly reputed private hospital with efficient doctors trained paramedical staff and adequate support services. Allegations made by the Complainant are denied as not borne out from the bed head ticket of the patient. As claimed no specific allegations are made against the CMRI in the complaint.6. In a separate reply before the State Commission OP-2/Dr. Subrata Dasgupta has raised the following issues—i. The complaint was filed in 2005 while the cause of action had arisen in 2000.Therefore the State Commission should have dismissed it on the ground of limitation. We however note that the seal of the West Bengal State Commission on the complaint clearly shows that it was received in May 2002. It is also numbered by the State Commission as a complaint of 2002. Therefore the question of limitation would not arise at all as the cause of action had arisen sometime in September 2000.ii. The main plea of OP-2 is that in this case the post-surgery recovery was uneventful and without any complication. The patient was discharged walking on two crutches. Merely because complications had arisen subsequently it cannot be called a case of failure or negligence on the part of the treating doctor.iii. On the allegation relating to breaking of the interlocked iron nail inside the left femur bone of the Complainant the written statement of OP-2 has the following explanation to offer:-“This Opposite Party states that I M Rods are known to break occasionally due to stress.It further states that this is an accepted phenomenon and text book and medical literature and there is nothing new in the instant case though it is most unfortunate.Moreover the Rod put in was Indian made and the same was used for cutting down the cost at the request off the complainant himself.But in any case it is stated that the Indian made are also used by Orthopaedic Surgeon with very goods results.It is further stated that the incident of breaking up of Rod is very unfortunate but it happens in other parts of world also with Foreign Rods”.iv. Another contention of OP-2 is that it was not a case of improper fixation of Iron Nail. Had it not been fixed properly the Complainant would not have been able to even get up from his bed. In any case the iron nail would not have taken nearly one year to break. It would have broken much earlier.v. With reference to non-fixation of screw at one side this Opposite Party states that the same was done for early healing of the patient. It is also claimed that all orthopaedic surgeons who affix the second screw generally take it out after four to six weeks so that more pressure is built upon the limb. Therefore it was claimed that there is no harm in not fixing the second screw. Any lapse on this account is denied by OP-2.7. The State Commission has rejected the allegation that the iron nail was not affixed in a proper way and held that the Complainant has not been able to discharge the initial onus of proving that there was any negligence or deficiency in fixing it which was the reason for subsequent breakage of iron nail. The complainant failed to examine any expert on this issue. State Commission also rejected the opinion of Dr. J.K. Nag on the ground that he was himself not examined before the Commission. It has observed that opinion of Dr Nag “which is very much relied upon by the Complainant as a piece of evidence proving negligence on the part of the doctor in our opinion does not produce any such effect. This document may at the most go to show that the Nail was prescribed by the O.P. but that fact itself cannot be an index of any negligence or deficiency on his part.”8. Appeal before this Commission was filed by Shri Anupam Bhattacharyya in person. Considering the observations of the State Commission that he had failed to establish his allegation with clear evidence assistance of an Amicus Curiae has been provided on two occasions by this Commission. In the first instance Shri Probir Basu Advocate was appointed and later Dr. Siddharth Bhatnagar. OP-1/CMRI was also directed to file full medical record of the case. In compliance on 13.11.2014 an affidavit has been filed on behalf of CMRI informing that all medical records had already been filed in 2009. However in view of the direction of the Commission a copy of entire medical record has been filed again.9. Records submitted by the two sides have been carefully perused and arguments of learned Amicus Curiae on behalf of the Appellant/Complainant as well as of Mr. Soumya Dutta counsel for Respondent No.1 have been heard. Respondent No.2/ Dr Subrata Dasgupta has remained unrepresented.10. We have perused the ‘Case Summary and Discharge Record’ issued by CMC Vellore. The case history as recorded therein shows that after the IM nailing and interlocking was done (at OP-1) the Complainant was on bed rest till October 1999 and thereafter walking with partial weight bearing crutches till March 2000. Later he started full weight bearing i.e. walking without crutches and suddenly noticed that he had heaviness in the left leg with inability to walk without support. The CMC record also shows that the old implant was removed and replaced with fresh IM nail and bone grafting on 18.9.2000. It does not give any indication of how the IM nail installed at CMRI had broken but it certainly shows that between October 1999 and March 2000 the Complainant was walking with the support of crutches and thereafter without them.11. The main contention in the appeal is that the State Commission has failed to consider the X-Ray plate of 27.9.1999 which clearly showed the hole on one side of the IM nail meaning thereby that on one side no screw was fixed in the surgery of 17.8.1999. In furtherance of the same line of argument learned Amicus Curiae drew our attention to the receipt of 17.8.1999 which shows that M/s Niraj Enterprises had together with ‘Femoral Interlocking Nail’ also supplied three pieces of ‘locking bolts’ and vehemently argued that they were meant to be used while installing the IM Nail. According to him failure to fix them should have been viewed as a serious deficiency and an act of negligence on the part of the doctor.12. In our view the question to ask is whether the doctor had the option of not fixing the bolt on one side of the IM nail. On this point OP-2/Dr. Subrata Dasgupta has categorically accepted in his pleadings before the State Commission that no screw was fixed on one side of the IM Nail but has claimed that it was done for early healing of the patient (Para 13 of his Written Statement before the State Commission). He also claimed that any Orthopaedic Surgeon who affixes the second screw would need to take it out after four to six weeks so that adequate pressure can be built upon the limb. However it needs to be observed that OP-2 did not support this claim with any medical literature to bring out the recommended or standard practice in such cases. 13. We agree with the State Commission that the complainant has not led any expert evidence in this behalf. But we do not agree that it was not a part of his pleadings before the State Commission. Para 15 of the Complaint clearly alleges that the Iron Nail had not been properly interlocked into his femur bone. It also claims that it was discussed with OP-2/Dr Dasgupta who opined that it would not have created any problem. Para 15 also mentions discussion of an X-Ray with OP-2. More importantly in the Order Sheet of 20.12.2005 the State Commission has clearly recorded that while filing his Affidavit of Evidence the complainant had also produced an X-Ray plate and two pieces of Iron Nail. Later they were ordered to be returned to him on his request. But there is no discussion of the evidentiary value of these items in the impugned order. We therefore do not agree that the complainant had not discharged the primary burden of proof.14. In the appeal before us learned Amicus Curiae has relied upon relevant medical literature–Textbook of Orthopaedics by John Ebnezar (Third Edition). Chapter 18 dealing with Fracture of Femur bone has listed Interlocking nailing as a popular option. This was the option chosen at CMRI for fixing the fracture of the left femur of the complainant. Interlocking Nail with three locking bolts (screws) was selected by OP-2. He also relied upon medical literature of the American Academy of Orthopaedic Surgeons(AAOS).As shown in the text Interlocking Nail has two holes in the upper and lower ends and the nail is locked into position. The IM rod is screwed to the bone at both ends. This keeps the nail and the bone in proper position during healing. Admittedly this was not done. As noted earlier in this order OP-2 has clearly admitted in Para 13 of his Written Submission before the State Commission that—“With reference to non-fixation of screw at one side this Opposite Party states that the same was done for early healing of the patient. In this connection it may be stated herein that all orthopaedic surgeons who affix the second screw generally takes out the second Screw after four to six weeks so that more pressure is built upon on the limb therefore there is no harm in not fixing the second screw. Hence it is denied that there was any negligence on the part of this opposite party.”This is referred to in the Impugned order (Internal Page 6). The State Commission has recorded the concern of the Complainant ‘as to how without proper screw his fractured portion of the left femur bone could come in bony union.’ but has dismissed it with a cryptic observation “We are however not impressed by such argument of the Complainant.”15. Considering the issue in its totality we are constrained to hold that in the instant case the admitted non-fixing of the second bolt amounted to a significant inexplicable and material departure from standard practice. More so as OP-2 was admittedly aware that breaking of IM nails was not an uncommon phenomenon. The question is how should such a departure be viewed under the law.16. One of the eight principles laid down by Hon’ble Supreme Court of India in Dr Jacob Mathew Vs. State of Punjab and anr. III (2005) CPJ 9 (SC) on the subject of medical negligence directly lays down—“49(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional in particular a doctor additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care an error of judgment or an accident is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also the standard of care while assessing the practice as adopted is judged in the light of knowledge available at the time of the incident and not at the date of trial. Similarly when the charge of negligence arises out of failure to use some particular equipment the charge would fail if the equipment was not generally available at that particular time (that is the time of the incident) at which it is suggested it should have been used.”(Emphasis supplied)In the facts and circumstances of the present case and in the light of the medical literature examined above the practice adopted by the treating doctor at CMRI cannot be called ‘a practice acceptable to the medical profession of that day’. Therefore it has to be treated as a case of medical negligence.17. The Commission was also informed that during the course hearing of the appeal OP-2/Dr Subrata Dasgupta had passed away. In this background an application was filed on behalf of OP-1/CMRI that on the ground of demise of the treating doctor the Appeal itself should stand abated. Law on this point is clearly enunciated. In Savita Garg Vs. Director National Heart Institute 2004 CTJ 1009 (Supreme Court) Hon’ble Apex Court has laid down—“10. The Consumer Forum is primarily meant to provide better protection in the interest of the consumers and not to short circuit the matter or to defeat the claim on technical grounds. Reverting back to the facts of the present case whether non-joinder of the treating doctor nursing staff can result into dismissal of the claim petition. As a matter of fact when a patient is admitted to the highly commercial hospital like the present institute a thorough check up of the patient is done by the hospital authorities it is the Institute which selects after the examination of the patient that he suffers from what malady and who is the best doctor who can attend except when the patient or the family members desire to be treated by a particular doctor or the surgeon as the case may be. Normally the private hospitals have a panel of doctors in various specialities and it is they who chooses who is to be called. It is very difficult for the patient to give any detail that which doctor treated the patient and whether the doctor was negligent or the nursing staff was negligent. It is very difficult for such patient or his relatives to implead them as parties in the claim petition. It will be an impossible task and if the claim is to be defeated on that ground it will virtually be frustrating the provisions of the Act leaving the claimant high and dry. We cannot place such a heavy burden on the patient or the family members/ relatives to implead all those doctors who have treated the patient or the nursing staff to be impleaded as party. It will be a difficult task for the patient or his relatives to undertake this searching enquiry from the Hospital and sometimes hospital may not co-operate. It may give such details and sometimes may not give the details. Therefore the expression used in Rule 14 (1) (b) so far as they can be ascertained makes it clear that the framers of the Rules realized that it will be very difficult specially in the case of medical profession to pinpoint that who is responsible for not providing proper and efficient service which gives rise to the cause for filing a complaint and specially in the case like the one in hand. The patients once they are admitted to such hospitals it is the responsibility of the said hospital or the medical institutions to satisfy that all possible care was taken and no negligence was involved in attending the patient. The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the Hospital to provide the best service and if it is not then hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff as the case may be was not impleaded therefore the claim should be rejected on the basis of non-joinder of necessary parties. In fact once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent as a result of such negligence the patient died then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the Institution/ hospital than that of the claimant. The institution is private body and they are responsible to provide efficient service and if in discharge of their efficient service there are couple of weak links which have caused damage to the patient then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.”18. While applying this principle in a recent decision this Commission has held in RP 4191 of 2008 Himanchal Kumari & Ors. Vs. Govt. of N.C.T. of Delhi & Ors. dated 27.01.2015. that a hospital is liable for negligence of doctors and surgeons employed by it from their acts arising in the course of performance of their professional duties. The hospital has a duty to give proper treatment- medical surgical nursing and the like – and may delegate such duties to those who may or may not be under a contract of service with the hospital. Hence a complaint against the hospital cannot be dismissed merely on the ground that the treating doctor has not been impleaded. It is needless to add that it would apply equally to a case where the treating doctor was impleaded but has since died.19. Coming to the extent of liability of the hospital Hon’ble Supreme Court in the landmark decision in Dr. Balram Prasad Vs. Kunal Saha and Ors. (2014) 1SCC 384 has held that the primary liability is that of the hospital. It was on this principle that the Apex Court has held the treating doctors liable to pay only Rs.25 lakhs while holding the hospital liable for Rs.580 lakhs.20. In view of the details considered above we hold that the allegation of medical negligence against the OPs is proved by evidence on record. Therefore the appeal is allowed and the order of the State Commission is set aside. Considering the physical suffering undergone by the Complainant and resultant financial burden cast upon him lump sum compensation of Rupees six lakh is awarded in his favour. In addition Rs.10 000/- is awarded towards cost of litigation. The same shall be paid by OP-1/Calcutta Medical Research Institute alone in view of the demise of OP-2/Dr Subrata Dasgupta during the pendency of this appeal. The amount awarded herein shall be paid within three months of this order. Failing this it shall carry interest at 10% per annum. Before parting with the matter we wish to place on record our appreciation of the valuable assistance rendered by the Amicus Curiae.First Appeal No.122 of 2008 is disposed of in the aforesaid terms.