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Tanveer Alam v/s Dr. Mohammad Massod Alam & Others


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    First Appeal No. A/1186/2017

    Decided On, 11 December 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

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

   



Judgment Text


Ishan Chandra Das, President

This Appeal has been directed against the judgement and order dated 11.9.2017 passed by ld. D.C.D.R.F., Kolkata Unit I, in C.C. 89 of 2010 where the ld. Forum concerned while disposing of the said Complaint Case dismissed it on contest against the OPs without cost.

Being aggrieved by such order of dismissal the present Appeal has been preferred by the Complainant.

The case of the Complainant/Appellant (hereinafter referred to as the Complainant) was that on 10.5.2009, the complainant suffered a serious injury on his right fore-arm while he fell down from his motor bike and on the same day he took X-ray of his fractured right fore-arm at SSKM Hospital and thereafter contacted the OP NO.1/Doctor Md. Masud Alam sought for appointment for consultation and the Doctor asked the complainant to attend the Nursing Home, the OP No.2, with the X-ray plate. On 11.5.2009 , the complainant paid visit to the OP NO.1 and he was examined by the said doctor who verified the X-ray plate and diagnosed it to be fractured of right radius and ulna with displacement and he advised the complainant to undergo surgery in which two metal plates were fitted on the fractured bone of right fore-arm and further advised the complainant to get himself admitted in the Nursing Home/OP No.2 for undergoing surgery on 12.5.2009, subject to certain laboratory tests/investigations. The complainant relied on the advice of the OP NO.1/Doctor and agreed to undergo necessary operation on completion of the tests prescribed by the Doctor/OP No.1 and as per advice , he produced all the test reports at the Nursing Home for getting admission for surgery, to be held on 12.5.2009. On 12.5.2009 the OP No.1/Doctor after physical examination, the complainant at the Nursing Home and on verification of the laboratory test reports, performed operation on the fractured right hand of the Complainant in which the two metal plates, supplied by the OP No.3, were fixed on the fractured bones, one on radius right fore-arm and another on ulna shaft and after such operation there was plaster of the right arm of the Complainant. The OP No.1/Doctor informed the patient and his wife soon after the operation that the necessary metal plates have been implanted successfully and the complainant was advised to stay two/three days at the Nursing Home for necessary dressings and medications. During his stay at the Nursing Home , the OP NO.1/Doctor used to examine and check up the patient daily on routine basis and on 15.5.2009 when the OP NO.1/Doctor came to see the patient the complainant requested the OP No.1/Doctor to discharge him, if he felt fit to do so and after physical examination of the complainant the Doctor opined to discharge him after prescribing some medicines and giving clinical notes as per discharge certificate dated 15.5.2009. The complainant paid visit to the OP NO.1 on and from 19.5.2009 to 29.6.2009 for post surgery dressing , X-ray plate, and necessary check up and finally on 29.6.2009 the OP No.1/Doctor after seeing the X-ray taken on that date removed the plaster and prescribed certain medicines as the report was satisfactory. On 19.7.2009 at about 7/30 p.m. the Complainant while doing his routine work heard a crack sound coming from his right hand and he felt pain and swelling up without any external wound. The complainant being afraid of such pain and crack sound contacted the OP NO.1/Doctor over telephone but the Doctor refused to give any time for consultation but prescribed pain killer tablets with an instruction to consult him in his clinic on the next day i.e. on 20.7.2009. The complainant accordingly paid visit to the OP NO.1/Doctor on 20.7.2009 where X-ray of his right fore-arm was taken once again and the Doctor/OP NO.1 after going through the X-ray plate and after physical examination of the complainant diagnosed it to be ‘broken radial plate’ and performed some dressings and advised the complainant to undergo surgery once again and prescribed certain pre-operation laboratory tests which were complied by the complainant on 22.7.2009. The complainant before undergoing second operation for removal of the broken plate and refixation of another plate, decided to take second operation by another Doctor and therefore he consulted Dr. Buddhadeb Chatterjee of Apollo Gleneagles Hospital on 23.7.2009 where he came to know that the OP NO.1/Doctor failed to perform the operation properly. After considering the X-ray plate , it was ascertained that the bones on which the plates were fixed were not united and the OP No.1/Doctor would have done ‘bone grafting’. Moreover, the metal plates supplied by the OP No.3 under the instruction of the OP NO.1 were not of standard grade. The complainant realized that he had been treated by the OP NO.1/Doctor negligently and he preferred to treat himself by Dr. B.D. Chatterjee at Apollo Gleneagles Hospital on the same day (23.7.2009) and underwent operation on 24.7.2009 for removal of broken plates, refixation of a new plate and bone grafting and thereafter he was discharged on 26.7.2009 with a note ‘possible reconstruction of supination on account of mal-union of ulna’ which was explained to the patient’s relatives and as a consequence of the mal-union , the complainant was unable to move his wrist and he was advised for another operation for correcting the defect and the cost of such operation would be around Rs.45,000/- (Rupees forty five thousand) . As the complainant did not have money to spend for another operation, he had to leave with certain defects and due to mal-union of ulna , the complainant was unable to move his wrist of right-hand and consequently it was becoming difficult for him to lead his life with such disablement. The complainant was also suffering from pain and also feeling some uncomfortable in his right fore-arm for which he again consulted Dr. B.D.Chatterjee of Apollo Gleneagles Hospital once again and he was advised by the said Doctor to undergo surgery upon examining the X-ray, taken later on. The complainant had to pay a sum of Rs. 1,09,363/- (Rupees one lakh nine thousand three hundred sixty three) being all his medical expenses including investigation and hospitalization , Doctors fee etc. for his third surgery the complainant had to pay another sum of Rs.16,200/- (Rupees sixteen thousand two hundred) to the OP NO.1/Doctor on account of operation and consultation fees of Rs.5,000/- ( Rupees five thousand) on each day and accordingly the complainant had to pay a sum of Rs.1,09,558/- (Rupees one lakh nine thousand five hundred fifty eight) . The complainant claimed that the OP NO.1/Doctor was negligent in discharging his duties which necessitated further surgery at the Apollo Gleneagles Hospital causing physical and mental harassment for a long term, financial loss and dis-comfort to the complainant and that prompted the complainant to take shelter of the D.C.D.R.F. claiming a sum of Rs.1,09,518/- (Rupees one lakh nine thousand five hundred eighteen) towards medical expenses , compensation of a sum of Rs.5 lakh (Rupees five lakh) for mental agony , harassment and cost of legal proceeding etc.

The OP No.1/Doctor Md. Masud Alam filed a Written Version and Additional Written Version to contest the complaint case and contended that the Complaint Case was not maintainable in law, the same being hit by the law of limitation and bad for defect of parties. Denying and disputing the material allegations against him, the OP NO.1/Doctor , in his Written Version admitted that the complainant met with the motor bike accident and admitted that being injured by such accident, the complainant came to him for his treatment on 11.5.2009, he was treated by the OP NO.1/Doctor at the nursing home of OP NO.3 but on 19.7.2009 while the complainant contacted the OP No.1/Doctor experiencing pain in his right wrist after a strenuous movement, the OP No.1 urged the complainant to come to him for a check up as soon as possible and on the next day i.e. on 20.7.2009 the Complainant/Patient was examined by the Op NO.1/Doctor after taking detailed history, advised him for an X-ray of the affected area and it was found that the Complainant had broken the plate on the right radius. Denying and disputing negligence on his part in treating the patient, the OP No.1/Doctor categorically claimed that proper treatment was given to the patient as per approved norms. He also stated in his Written Version , denied all the material allegations like revealing of mal-union of bones as per X-ray taken on 29.6.2009, guilty of suppression of fixation of the fractured bone, metal plates supplied by the OP NO.3 under the instruction of the OP No.1 were not of standard grade or the OP No.1 ought to have done ‘bone grafting’ etc and demanded strict proof of the same. The OPs No. 2 and 4 in their respective Written Versions though admitted the factum of treatment of the patient at their respective hospitals but did not admit their responsibilities in treating the patient , rather they claimed that the concerned Doctors may be held responsible for treating the patient whether good or bad and ultimately these two OPs No.2 and 3 prayed for dismissal of the case against them.

Upon consideration of the materials on record ld. D.C.D.R.F. dismissed the Complaint Case not only against the Respondents/OPs No.2 and 3 but it also dismissed it against the OP No.1/Doctor as well.

Now the point for consideration is whether ld. D.C.D.R.F. was justified in dismissing the Complaint Case against all the OPs.

The factual aspects of the matter with regard to suffering from fracture of the Complainant Tanveer Alam on 10.5.2009 due to motor bike accident his initial treatment by the OP NO.1/Dr.Mohammed Massed Alam , fracture of the right radius and ulna with displacement suffered by the Complainant, fixation of metal plates by the OP NO.1 by undertaking surgery of the patient, supply of two metal plates by the OP No.3, subsequent sufferings for non-union of bones, breaking of the metal plates causing sufferings of the patient etc. are not at all disputed. The Complainant claimed that he had to suffer much for the injuries caused to his right radius and ulna and he had spend a considerable amount i.e. more than Rs. 1 lakh (Rupees one lakh) in two hospitals i.e. the OPs NO.2 and 4 but he could not get desired results before the OP NO.1 who took up the first stage of surgery at the OP NO.2. The complainant never alleged negligence in the treatment of OP NO.2 and 4 , rather he concentrated to bring his allegations against the OP No.1, as he advised him to undergo second operation for getting himself cured but the Complainant instead of coming to the OP NO.1 preferred to go to the OP No.4 for getting treatment from one Dr. Buddhadeb Chatterjee of Apollo Gleneagles Hospital, where he could get the desired result after the second surgery, undertaken by said Dr. Chatterjee.

Whether the Op NO.1 was negligent in treating the patient or not is a matter to be considered upon the opinion of Experts in the field who expressed their opinion as per their report dated 5.2.2013 which is at page 130 of the file. The observations of the Experts’ Committee is reproduced below :-

"Medical Board held on 5th February , 2013 as per Notice of SSKM/MSVP/045 dated 14th January ,2013 in connection with the order of President, District Consumer Disputes Redressal Forum, Kolkata Unit-1 for “Tanveer Alam” :

Members present : 1. Dr. D.Majumder, Professor & H.O.D. of Orthopaedics, IPGME&R-SSKM Hospital, Kolkata-Chairman, (2) Dr. A.Ghosh, Professor & H.O.D. of Medicine, IPGME&R-SSKM Hospital, Kolkata –Member, & (3) Dr.R.Halder, Professor & H.O.D. of P.M.R., IPGEM&R-SSKM Hospital –Member.

Patient examined at Ortho O.P.D. and advised fresh x-ray for proper evaluation.

It is revealed that the re-fracture of the radius following trivial trauma after removal of the implants and excision of Ulna Lower end left forum (date of first injury 10th May, 2009 as stated by Sri Tanveer Alam) there is re-fracture of the radius which can be addressed by another operation followed by Physio Therapy.

Opinion of the Board :

1. Several operations may be required to achieve the union of the fractures.

2. Re-fracture following plates removal with trivial trauma is not unusual.

3. The further surgical procedures are available and can be recommended to have union of the radius.

4. Rehabilitation programme can be undertaken following /during the process of bone union.

In course of argument ld. Counsel for the OP NO.1/Respondent NO.1 drew our attention to a prescription dated 23.7.2009 where Dr.Buddhadeb Chatterjee , Consultant Orthopaetics observed that the patient was suffering from non-union # BB Respondent FA with broken radial plate and requires implant removal re-fixation and bone grafting and advised the patient for admission for another surgery. If we consider the observation of Dr. B.D.Chatterjee (page 50 of the file) and compare it with the Discharge Summary dated 26.7.2009 (page 51 of the file) it is found gross deformity of right fore-arm with pain and restricted movements and the x-ray plate report revealed non-union fracture radius with broken plate and pla

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tes were removed, re-fixation and bone grafting of both the bones of right fore-arm done . The OP NO.1/Respondent pointed out the situation, the patient had to face after the breaking of the metal plate but the Complainant instead of following the advice of the OP NO.1 rushed to another Doctor for his redressal. If we consider the allegations against the OP NO.1/Doctor in the light of the observations given by the Experts’ Committee in their report, as noted above, it appears to us that such a situation in a treatment like that of the Complainant was not unusual. Ld. D.C.D.R.F. in the judgement impugned quoted several decisions of the Hon’ble Apex Court and the Hon’ble National Commission in deciding the problem and taking into consideration the observations made in the judgement impugned , we are of the view that the Complainant failed to establish medical negligence against the OP NO.1 , rather it is established beyond doubt from the Experts’ report that the OP NO.1 cannot be held responsible for the sufferings of the Complainant. Since the Complainant failed to establish any allegation against the hospitals i.e. OPs No.2 and 4 as well, so far his treatment is concerned and accordingly we are of considered view that he does not deserve any relief in the instant case and therefore we dismiss the Appeal, affirm the Judgement and Order impugned dated 11.9.2017 in C.C. 89 of 2010, passed by ld. D.C.D.R.F., Kolkata Unit I. Parties do bear their respective costs of Appeal.
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