Ishan Chandra Das, President
This appeal has been directed against the judgment and order dated 27-11-2017 passed by Ld. DCDRF, Siliguri in CC/64/S/2014 where Ld. Forum concerned while disposing of the said complaint case allowed it in part on contest against the OPs no. 1 and 2 with cost and dismissed it against the proforma OP no. 3, as no relief was sought for against him, directed the OPs no. 1 and 2 to pay compensation to the tune of Rs. 8,00,000/- (Rupees eight lakh), to refund the expense incurred by the complainant to the tune of Rs. 27,900/- (Rupees twenty seven thousand nine hundred) for the removal of implant in the right femer, to refund the cost of post implant removal treatment under the OP no. 3 to the tune of Rs. 25,083/- (Rupees twenty five thousand eighty three), Rs. 10,000/- (Rupees ten thousand) towards litigation cost and other consequential reliefs with default clause.
Being aggrieved by such judgment and order dated 27-11-2017, the present appeal has been preferred by the OPs no. 1 and 2.
The case of the complainant/respondent no. 1 (hereinafter referred to as the complainant) was that she (the complainant) was admitted at the OP no. 2/Anandaloke Hospital and Neuro Science Centre at Siliguri under the OP no. 1/Dr. A. K. Sasmal, with trauma in her right lower leg associated with pain and restricted movement. On 18-05-2011 interlocking of fracture of her right femur was done by the OP no. 1 at the OP no. 2 and an intra-medullary implant was placed in her right femur along with three screws. On 29-05-11 the complainant was discharged from the OP no. 2 after removal of stitches from the place of wound during the period from 18-05-2011 to 29-05-2011 on payment of the operation charge of a sum of Rs. 69,947/- (Rupees sixty nine thousand nine hundred forty seven) by the complainant. Since her discharge the complainant was under the treatment of OP no. 1 and carried out her daily activities as per medical advice. After two years since her discharge from the OP no. 2 the OP no. 1 advised the complainant for removal of the implant, placed in her right femur and on 06-06-2013 the complainant was again admitted at the OP no. 2 under the OP no. 1 for removal of the interlocking nail placed in the right femur of the complainant and wound was stitched and she was discharged on 08-06-2013. The complainant had to pay a sum of Rs. 22,850/- (Rupees twenty two thousand eight hundred fifty) for the second operation from 06-06-2013 to 08-06-2013. Thereafter ten days from the date of discharge (i.e. on 08-06-2013) the stitches were removed by the OP no. 1 at the OP no. 2 but unfortunately the wound did not heal but the patient developed discharge at the operative site by regular dressing but failed to find desired result of healing of the wound. At this stage the OP no. 1 diagnosed the said proforma of the complainant to be stitched abscess, admitted her at the OP no. 2 for surgical management on 14-04-2013 and discharged her on 15-08-2013 but the complainant had to bear a sum of Rs. 5,050/- (Rupees five thousand fifty). At this stage the complainant visited the OP no. 3 with the post implant removal problem on 16-10-2013 where the OP no. 3 admitted the complainant at Neotia Getwel Healthcare Centre, Matigara, and on evaluation and investigation of the complainant the complainant was found to have discharging sinus over her right hip at the surgical implant removal site. On 17-10-2013 the complainant underwent sinus excision operation under OP no. 3 at the Neotia Getwel Healthcare Centre, Matigara, District – Darjeeling where the OP no. 3 found a big gauge present in the wound at the said surgical implant removal site of the complainant and the same was removed and was discharged on 20-10-2013. The pyogenic material was continuously oozing from the wound over the right hip of the complainant from the surgical implant removal site due to the presence of big gauge which was left inside her right femur in course of removal of the surgical implant from her right femur by the OP no. 1 out of sheer negligence of the OP no. 1 who never carried out the necessary post implant removal treatment of the complainant and he was absolutely negligent and indifferent to the seriousness of the post implant removal problems faced by the complainant. Following such treatment of the complainant under the OP no. 3 from 16-10-2013 to 20-10-2013 and thereafter the complainant gradually started to feel better and recover from her post implant removal problems and subsequently got recovered. The entire treatment of the complainant from 16-10-2013 to 20-10-2013 under the OP no. 3 at Neotia Getwel Healthcare Centre, Matigara, District – Darjeeling shows sufficient proof that the OP no. 1 was negligent in carrying out removal of the implant placed in her right femur causing dribbling of pus/pyrogenic material from the sinus tract over her right hip at the surgical implant removal site. The complainant alleged that the OP no. 1 never subjected her to meticulous evaluation and to know the cause of such continuous dribbling of pus from the wound over right hip and the surgical implant removal sight and remained absolutely negligent and indifferent to the seriousness of the post implant removal problems faced by the complainant who became the victim of medical negligence of at the treatment of the OP no. 1 at the OP no. 2/Hospital during her post implant removal treatment for which the complainant suffered intense trauma, mental agony and sufferings. If the complainant did not decide to carry out her post implant removal treatment of Dr. Navneet Kaur under the OP no. 3, the presence of the big gauge piece present deep into the wound at the surgical implant removal site of the complainant would never be brought to look and the same could have left to her fatal consequences. The complainant further alleged such carelessness on the part of the OP no. 1 at the time of removal of implant in the right femur of the complainant and claimed that this was a gross medical negligence on the part of the OP no. 1 for which he had to take recourse of the DCDRF concerned seeking reliefs in terms of the petition of complaint.
The OPs no. 1 and 2 filed two separate written versions to contest the complaint case. The OP no. 1/Dr. A. K. Sasmal in his written version admitted a part of the averments with regard to the treatment of the complainant in the year 2011, acceptance of a sum of Rs. 69,947/- (Rupees sixty nine thousand nine hundred forty seven) from the complainant right up to surgical treatment including removal of the implant placed in her right femur were not disputed. The OP no. 1/Dr. A. K. Sasmal in his written version admitted that the patient was admitted for removal of implant underwent surgery and the post operative period was uneventful and no complications arose as a result of the said surgery. He also stated that the standard medical treatment in such type of surgery was followed but the complainant/patient did not come for follow-up treatment. It is further stated in the said written version that the complainant was specifically advised during her discharge from the OP no. 2/hospital to attend the Ortho OPD on 16-08-2013 for her dressing but the complainant did not bother to come and informed the OP no. 1 about her problems, resulting contributory negligence on her part. This OP no. 1 categorically denied that any gauge was kept by him at the implant site removal and he further claimed that he never carried out necessary post implant removal treatment of the complainant. The OP no. 1 also alleged in his written version that the complainant was silent as to what treatment she underwent for the period from 15-08-2013 to 16-10-2013. The OP no. 2 in its written version, in addition to the statement given by the OP no. 1 in the written version, categorically denied all the material allegations against it and demanded strict proof of the same. The OP no. 2 stated that there was no deficiency on the part of this OP in providing service of the complainant by providing well equipped Operation Theatre, maintaining standard medical and surgical practice. Denying the cause of action as averred in the body of the petition of complaint, the OP no. 2 denied its liability with regard to negligent act on the complainant and ultimately prayed for dismissal of the complaint case with costs.
The factual aspects of the matter i.e. admission of the patient at the appellant/hospital under the OP no. 1/Dr. A. K. Sasmal with trauma in her right lower leg associated with pain and restricted movement, surgery by way of interlocking fracture of her right femur under anesthesia by the appellant no. 1 along with intra-medullary implant was placed in her right femur with three screws were not disputed. The appellant further claimed that the surgery was uneventful and the complainant/respondent did not have any post operative complications. It is also admitted that on 29-05-2011, the stitches were removed and the patient was discharged on the same date upon realization of a sum of Rs. 69,947/- (Rupees sixty nine thousand nine hundred forty seven) for the cost of such hospitalization. The complainant was discharged from the hospital with the advice of the appellant/Doctor for removal of the interlocking nail placed in the right femur on 06-06-2013 and the surgery was claimed to be uneventful by the appellant and the patient was discharged on 08-06-2013 with further medication but the patient developed discharge at the operative site and as such required dressing was done and antibiotic prescribed but the patient who was subsequently diagnosed and having stitch abscess and accordingly incision and drainage was done on 14-08-2013 and she was discharged on 15-08-2013 with advice to attend the Orthopedic OPD on 16-08-2013 for dressing of the wound but the patient did not turn up which amounted to contributory negligence, as stated. The appellant no. 1 claimed that despite due diligence, care and caution in rendering medical service the patient brought the allegation of medical negligence and deficiency in service on the part of the appellants with a motive of financial gain and claimed a sum of Rs. 15,00,000/- (Rupees fifteen lakh) towards compensation together with cost of treatment and litigation costs etc. But the problem of the patient started after the post second surgery i.e. surgical removal of the implant which caused the development of discharge at the operation site. The complainant alleged that, consequent to such development after the second surgery, she had to take shelter at the Neotia Getwel Healthcare Centre, Matigara, where it was detected that a big gauge piece present deep into the wound stained with methyleneblue, gauge piece removed. The complainant claimed that due to such removal of gauge from the wound by the OP no. 3, as it is revealed from discharge summary of Neotia Getwel Healthcare Centre, Matigara, (which is at page 70 of the file), the patient got her operative site cured within a short span. From this event it can safely be held applying the principle of ‘res ipsa loquitor’ that the OP no. 1 performed the second operation in a negligent manner leaving a piece of gauge inside the thigh. The OP no. 2 claimed that it provided the well equipped OT, maintaining standard medical and surgical practice for the operation and the first operation was uneventful. Since the Orthopedic Surgeon/OP no. 1 is found negligent in treating the patient for the second operation of removal of the plant but the Hospital Authority who provided well equipped surgical theatre cannot be blamed particularly when no specific allegation has been brought against it. Ld. Counsel appearing for the appellants herein in course of her impressive argument placed reliance on a decision of the Hon’ble National Commission in Ajay Gupta Vs. Dr. Pratik Agarwal and others, reported in 2007 (3) CPR 117 (NC) and pointed out that where the doctor followed established medical procedure in surgery and treatment cannot be held liable for negligence or deficiency in service. True it is that the first operation of the patient for placing implant in the right femur of the complainant was uneventful. Hence, the OP no. 1 was successful in operating the patient for the first time since it was uneventful and no allegation of negligence was brought against him (OP no. 1) but in case of second operation for removal of implant from the surgical wound the mischief was done by him as he left a big gauge inside the wound. Hence, it cannot be said that the doctor was thoroughly negligent in treating the patient but leaving a gauge inside the surgical wound cannot be treated in the same
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way as it was done in the first operation. Accordingly taking into consideration the entire circumstances of the case some lenient view can be taken so far as the imposition of compensation upon the OP no. 1 is concerned. The OP no. 1 once treated the patient, successfully operated for the first time but in the second operation he was found negligent as he left a gauge inside the surgical wound. Hence, imposition of compensation to the tune of Rs. 1,00,000/- (Rupees one lakh) and recovery of the cost of Rs. 27,900/- (Rupees twenty seven thousand nine hundred) for the operation by the OP no. 3 at the Neotia General Health Care Centre and Rs. 10,000/- (Rupees ten thousand) towards litigation costs would suffice the ends of justice. Hence, the appeal of the appellant no. 2 is allowed and the judgment/order passed by Ld. DCDRF against the appellant/Hospital stands set aside. So far as the appeal of the appellant no. 1/Doctor A. K. Sasmal is concerned it stands allowed in part and the appellant no. 1 is directed to pay a sum of Rs. 1,00,000/- (Rupees one lakh) towards compensation, a sum of Rs. 27,900/- (Rupees twenty seven thousand nine hundred) towards cost of treatment at Neotia Getwel Health Care Centre, Matigara and a sum of Rs. 10,000/- (Rupees ten thousand) towards litigation cost to be paid to the complainant within 60 days from the date of the order. This appeal is thus disposed of.