w w w . L a w y e r S e r v i c e s . i n



Dr. Prasanta Saha v/s Pritam Sarkar & Another


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- T. SARKAR PVT. LTD. [Active] CIN = U74300WB1990PTC049054

Company & Directors' Information:- C S SARKAR PVT LTD [Strike Off] CIN = U29305WB1976PTC030421

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- P R SARKAR & CO PVT LTD [Strike Off] CIN = U01409WB1947PTC015881

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    First Appeal No. A/862/2016

    Decided On, 25 February 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT & THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, MEMBER

    For the Appellant: Binota Roy, Advocate. For the Respondents: Amit Pachal, Advocate.



Judgment Text

Ishan Chandra Das, President

This Appeal has been directed against the judgement and order dated 4.8.2016 passed by ld. D.C.D.R.F., Howrah in C.C. 279 of 2014 where the Forum concerned while disposing of the said Complaint Case allowed the same on contest with cost against the OP No.1 and dismissed it against the OP No.2, directed the OP No.1/Appellant herein (hereinafter referred to as the OP NO.1) to pay a sum of Rs.10 lakh (Rupees ten lakh) as compensation and Rs.4 lakh (Rupees four lakh) for causing physical and mental agony, harassment for a period of seven months, Rs.30,000/- (Rupees thirty thousand) towards cost , out of which Rs.10,000/- (Rupees ten thousand) to the Complainant (Respondent No.1) as litigation cost and Rs.20,000/- (Rupees twenty thousand) to be deposited before the Consumer Welfare Fund, to be paid within 30 days from the date of the order i.d. the amount will carry interest @ 9% per annum till its realization.

Being aggrieved by such judgement and order, the O.P.No.1 of C.C. 279 of 2014 preferred this appeal.

Briefly stated, the case of the Complainant/Respondent NO. 1 (hereinafter referred to as the Complainant) was that on 4/12/2012 the complainant Pritam Sakar (son of one Tapas Sarkar ), aged 17 years while working in a turbine machine, he suddenly met with an accident and sustained injuries in his right elbow and right fore-arm . The victim suffered from severe pain and swelling. The employer of the said factory contacted the OP NO.1/Dr.Prasanta Saha for his treatment and on examination of the patient , the OP NO.1/Doctor advised the employer of the said factory to get immediate operation of the victim , advised him to get the patient admitted immediately and accordingly on 4.12.2012 the victim was admitted to the hospital of the OP NO.2/People’s Meditreat Pvt. Ltd. for undergoing surgical treatment and at the time of admission, the Op NO.1 suggested some pathological tests. According to the advice of the OP NO.2 the pathological tests like X-ray, Blood tests etc. were done and on 12.12.2012 after noticing the diagnostic report, the Op No.1 operated the victim at the hospital of the Op NO.2 on acceptance of a sum of Rs.2 lakh (Rupees two lakh) from the Complainant and the patient was discharged from the said nursing home on 16.1.2013. On being discharged on 16.1.2013, the victim was advised by the OP No.1 to take some medicines with a further direction to revisit the OP NO.1 on 22.1.2013 but after being released from the hospital, the patient realized a subsisting pain in the fore-arm with the pus and blood extracting from the fore-arm and accordingly on the self- same date the son of the Complainant went for check up before the OP No.1 and on that date the OP No.1 by checking up the patient referred him to Dr. Prasanta Bhattacharya for skin grafting . Accordingly, as per advice of the OP NO.1 the complainant along with his son/victim went to Dr. P. Bhattacharya where the said Doctor after checking the patient informed the Complainant to contact the OP NO.1 as the pus and blood were oozing from the said operated place. On 5.2.2013 to 17.3.2013 the complainant paid visit to the OP No.1 for more than five times because of oozing pus and blood from the place of operation but at that time it was informed by the OP NO.1 that due to joining of the bone , the pus and blood were oozing, asked the complainant to bring the patient on 5.7.2013 and as such , the complainant and the victim went for check up but the Op NO.1 for avoiding his responsibilities referred the matter asking the Complainant to visit Dr.Subhra Chatterjee and the complainant paid a visit to said Doctor who after checking the patient came to the conclusion that there was infection in the operation spot and for that reason pus and blood was oozing out and he again advised the patient to visit the Op NO.1. On 14.7.2013 the Complainant again paid visit to the oP No.1/Doctor and after examination of the patient, the OP NO.1/Doctor advised the patient to revisit said Dr.Subhra Chatterjee for second operation and finding no other alternative , with a view to saving the life of his son, the complainant took loan from his near relatives and on 24.7.2013 he set out for Christian Medical College at Vellore and there after checking , the complainant would admit his son on 28.7.2013 . On 28.7.2013 and on 30.7.2013, the Doctor of said Christian Medical College and Hospital at Vellore removed the implanted plate as the bone and skin have been affected and as such they took the operation of debridement of both the bones of right fore-arm and implant exit and at the time of discharge, the said hospital informed the complainant that new plates were required to be implanted during the period from 5.8.2013 to 21.8.2013 and on 27.8.2013 the Doctor of Christian Medical College and Hospital implanted new plates on the fore-arm of the patient and after a few days the stitch was opened and thereafter they made plaster thereon. The complainant claimed that due to gross medical negligence on the part of the OP NO.1, there was infection and the right fore-arm of the patient was damaged but somehow it was rescued by operation at CMC, Vellore for which the complainant had to bear expenses of a sum of Rs.3 lakh (Rupees three lakh) and the right hand of the victim became crippled permanently causing mental and physical harassment of the complainant and his son. The Complainant being a consumer paid huge amount of Rs.2 lakh (Rupees two lakh) for medicines, pathological tests and fees for the operation of the right hand but did not yield desired result due to the wrong treatment and the patient became handicapped for ever for which the Complaint case was filed claiming reliefs to the tune of Rs.10 lakh (Rupees ten lakh) for deficiency in service, mental agony and sufferings, Rs. 8 lakh (Rupees eight lakh for causing harassment of the Complainant and Rs.50,000/- (Rupees fifty thousand) for litigation cost.

The OPs NO.1 and 2 filed Written version and additional Written version, denied all the material allegations and further denying that the allegation of negligence , these OPs contended that the patient was treated as per the established norms of treatment and there was no deficiency in service on their part and ultimately both of them prayed for dismissal of the Complaint case.

Upon consideration the evidence and materials on record ld. Trial forum found the OP NO.1 guilty of negligence and directed him to pay a sum of Rs.10 lakh (Rupees ten lakh to the petitioner as compensation and Rs. 4 lakh (Rupees four lakh) for causing physical and mental agony and harassment and Rs.30,000/- towards cost including litigation cost with default clause .

Now the point for consideration is whether the ld. Trial Forum was justified for imposing penalty upon the OP No.1. From the materials on record, including the treatment papers filed before ld. D.C.D.R.F., it was pointed out that on 4.12.2012 the victim Pritam Sarkar , a tender aged boy, met with an accident while he was working in a factory causing severe crushed injury resulting swelling of the right upper limb deformed with type 1 open wound over the right fore-arm . It was soiled with machine oil and dirt. Immediately, the victim being accompanied by the factory owner Mr. Subir Mondal rushed to the Clinic of the OP No.1 where he was advised to undergo X-ray and after taking such X-ray report, it was found that there were fractures in both radious and ulna of the right arm with fracture of right lateral condyle of humerous with dislocation of elbow. The patient was immediately admitted to the Nursing Home /OP No.2/Proforma Respondent No.2 for immediate treatment though the patient party was advised for taking shelter of a specialty hospital for better management of the fractures. The treatment papers filed on behalf of the complainant tend to show that ‘uncertain prognosis of the treatment’ was clearly explained to the patient party and consent for the treatment of the victim was obtained from the father of the patient by the OP NO.2/Proforma Respondent NO.2, as it appears from the admission form which is at page 46 of the file. The history sheet of the patient at the time of admission (page 48) shows that the Appellant, Dr.P.Saha, examined the patient on admission and the patient was directed to follow advice of Dr. Saha/the appellant herein. It also appears from the Hospital sheet (page 53) that on 7.12.2012 the schedule for surgical treatment of the victim was fixed by the operating doctor and during regional anesthesia, the patient developed convulsion and for that reason the operation was immediately cancelled , dressing of the hand was done . Consequent to that development of convulsion the patient party was asked to consult a physician, Dr. A. Chowdhury for proper management (page 54). Consequently, after certain pathological tests (page 56) on the self-same date , the patient was advised for undergoing surgical treatment on 12.12.2012 at 2.30 p.m. and on the next date ( 13/12/2012) the patient was to be transferred to the available general bed. It also appears from the subsequent treatment papers that as the percentage of haemoglobin was 8.7%, the patient was advised for transfusion of two units of whole blood which was done subsequently. Since the wound was unhealthy , the patient was advised to consult Dr.Prasanta Bhattacharya , a Plastic Orthopedic and General Surgeon for better management on 25.12.2012. The Discharge certificate obtained from the Op NO.2/Respondent No.2 manifested that the patient was discharged from the said Nursing Home on 16.1.2013 with proper advice for required dressing and exercise of elbow and shoulder. It also appears from the history sheet dated 27.12.2012 that Dr. P.K.Bhattacharya , a Plastic Surgeon, who examined the patient gave his opinion that the wound was healing with the advice for dressing to be continued and later on secondary skin suturing and further lap coverage was done by Dr. P.K.Bhattacharya till first week of March, 2013 when the patient visited the doctor for dressing but the patient did not pay visit to the Appellant/Doctor for a couple of months therefrom.

Ld. Counsel appearing for the Appellant in course of argument explained the course of treatment adopted by her client in the management of the wound including bone debridement, and clarified the course of action taken in the instant case . She explained this surgical process of treatment of removing skin and bone close to and surrounding infected wound associated with bone injuries. She also submitted that such type of surgery is recommended for slow healing of wounds associated with bone fractures from accident or trauma where this type of fracture typically involves break in the skin where the wound continuously bleed and shows hematoma and if the fracture is extensive and merits a bone grafting, debridement may be performed to clean the affected part in preparation for bone grafting procedure. It is submitted, in such a situation the patient may grow with osteomyelitis and this condition caused by the inflammation of the affected bone and due to infection and in such cases it would be necessary to perform bone grafting for complete treatment and debridment is one of the processes that need to be undertaken.

Ld. Counsel for the Appellant to further her argument submitted that apart from possibilities of adverse reaction to anesthesia there is also risk of further bleeding and re-infection of the open wound and for that reason the patient had to take utmost care to make the wound as sterile as possible.

Undoubtedly, the patient suffered from severe open fracture associated with large soft tissues wounds displacement and comminution of the bone fragments, loss of bone and decreased blood supply to the fracture site. The process of treatment as indicated in the treatment papers clearly show that despite the fact that Appellant adopted the procedure for treating the patient but not to the satisfaction of the complainant since he was suffering from severe fracture injury on his right fore-arm, as discussed earlier. The mere fact that desired result could not be achieved does not necessarily indicate medical negligence on the part of the attending Doctor who performed the surgical treatment to the best of his ability.

Ld. Counsel for the Complainant/Respondent drew our attention to the Discharge Summary (page 33), obtained from the Christian Medical College , Vellore 4, Department of Orthopedic Unit – III and pointed out that even after the debridment there was infection and non-union of both bones of the right fore-arm and the elbow which established negligence but, we are afraid, such an aspersion cannot be attributed to a doctor so long he performed his duties with reasonable skill and competence , obviously according to his ability. Hon’ble Apex Court in Kusum Sharma & Ors –Vs- Batra Hospital and Medical Research Centre, reported in 1(2010) CPJ 29(SC) held -

"The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.”

Even, we for the sake of argument accept that the patient had to suffer due to post operative complications, that does not necessarily indicate that it was the Doctor who took surgical operation of the patient was responsible for the same and the allegations of medical negligence can be attributed to him. Hon’ble Apex Court in Achutrao Hari Bhau Khodwa –Vs- State of Maharashtra, reported in 1996(2) SCC 634 categorically held that the “Courts would indeed be slow in attributing negligence on the part of a Doctor , if he has performed his duties to the best of his ability and with due care and caution”. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient but so long as the Doctor acts in a manner which is acceptable to the medical profession, that has attended on the patient with due care , skill and diligence and

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if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold that doctor to be guilty of negligence.” Ld. Counsel for the Appellant in course of argument further drew our attention to the copy of the Petition of Complaint attached to the file which are pages 26 to 32 of the file and tried to impress that the Forum concerned, passing the order impugned, did not have pecuniary jurisdiction to entertain the application as the claim of the complainant exceeded Rs.20 lakh (Rupees twenty lakh). But when the complainant claims a sum of Rs.10 lakh (Rupees ten lakh) towards compensation of Rs.8 lakh (Rupees eight lakh ) for causing harassment, mental agony and Rs.50,000/- (Rupees fifty thousand) towards litigation cost without claiming the cost of treatment, it should be presumed that he included the cost of treatment in the amount under the heading ‘compensation’ which he did in the instant Case. Accordingly we ignore this issue, particularly when it has been held earlier that the case is not such a meritorious one where the complainant deserves compensation, in terms of the Petition of Complaint. Hence, without going into for further controversy over this issue, we firmly hold that the Appellant/Doctor cannot be held guilty of negligence as alleged by the Complainant in treating the patient. In the result, we allow the Appeal, set aside the judgement impugned dated 4.8.2016 passed by ld. D.C.D.R.F., Howrah in C.C. 279 of 2014 resulting that the Complaint case is dismissed. Parties do bear their respective costs of Appeal.
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