State Consumer Disputes Redressal Commission
Sri Jatindra Nath Gangopadhyay, ... vs Sri Rabikant Simlai, Midnapore on 27 September, 2012
DRAFT State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.SC/350/A/2003 (Arising out of order dated 29/07/03 in MDF Case No.5/2001 of District Consumer Disputes Redressal Forum, Paschim Midnapore) DATE OF FILING:26/08/03 DATE OF FINAL ORDER:27/09/12 APPELLANT : Sri Jatindra Nath Gangopadhyay March Hospital P.O. Balichard, P.S. Tamluk District-Midnapore PIN-721 627 RESPONDENT : Sri Rabikant Simlai S/o-Sri Radha Krishna Simlai Village-Pakuri, P.O. Demarihat P.S. Tamluk, Dist. Midnapore BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANT : Mr. Indranil Nandi Ld. Advocate Mr. Monoranjan Maity Ld. Advocate FOR THE RESPONDENT : Mr. Subhas Chandra Maiti Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT
1. This appeal is directed against the judgment and order passed by Learned District Forum, Paschim Midnapore in MDF Case No.5 of 2001 allowing thereby the complaint case and directing the OP to pay a sum of Rs.1 lakh towards deficiency in service, cost of medical expenses to the tune of Rs.1,85,000/- and litigation cost of Rs.3,000/- within one month from the date of receipt of the order failing which the OP shall be liable to pay interest @ 12% per annum from the date of filing of this case till payment.
2. The case of the complainant/respondent, in short, is that the complainant met with an accident having fallen from the cycle and sustained injury in his right hip on 31/05/99. He was admitted in the Nursing Home of the OP and had undergone an operation on 04/06/99 whereby his hip joint was removed without any knowledge and consent of the complainant. His right leg was also set defectively although he remained admitted in the Nursing Home for a considerable period and thereafter released. After getting release from the Nursing Home the complainant found that the wound did not get properly healed up. There was constant generation of pus. The complainant felt tremendous pain and was not able to move.
His right leg was also found shortened.
It has been alleged that all these sufferings were due to the wrong treatment and operation made by the OP which was deficiency in service on the part of the OP. The OP claimed himself to be a specialist doctor having knowledge and experience to treat such patient. The OP took about Rs.25,000/-
towards his fees and other charges. The complainant, thereafter, went to Prof. D.P. Bakshi, Consultant Orthopaedic Surgeon, Kothari Medical Centre, Calcutta. The complainant was examined by the said doctor who disclosed that there was wrong treatment and operation and there was unnecessary removal of the hip joint.
The factum of removal of hip joint was not even disclosed to him by the OP. Dr. Bakshi advised him for further operation.
3. The complainant thereafter became much disturbed and consulted Dr. S. K. Gupta of Orthopaedic Centre, Kankurgachi who also advised him for further operation. Ultimately, the complainant went to Christian Medical College and Hospital, Vellore and was admitted there on 23/10/2000.
The complainant had undergone operation there and remained admitted till 03/11/2000. It was a major operation and the complainant had to pay Rs.85,000/- to the said hospital. Besides he had to spend more than Rs.25,000/- towards his journey, accommodation etc. After operation the complainant recovered to some extent. But he is unable to undertake any journey by cycle/bus. He is compelled to use commode. The complainant is unable to sit on the earth. The complainant has been serving as S.I. of Schools. His service has also been doomed for such physical condition.
It has been alleged that although the OP disclosed himself to be an Orthopaedic Surgeon, but in fact, he is not a specialist in Orthopaedic Surgery. It was, subsequently, learnt that it was not a case of removal of hip joint.
The OP carelessly and without taking any pre-caution negligently treated the petitioner and, as a result, the complainant has become physically handicapped.
4. The OP contested the case by filing W.V. contending, inter alia, that prior to coming to the respondent the complainant was treated by few doctors and being unsuccessful to get adequate remedy came to the OP on 03/06/99 and showed him the prescriptions, x-ray films, pathological reports etc. already done as per the advice of the previous doctors. The OP examined the complainant and made prescription noting therein the clinical observations, diagnosis and advice to make required tests and x-rays. Those papers have not been produced by the complainant before the Learned District Forum.
After careful observation and thorough examination and test, it was found by the OP that there was unrepairable fracture in the neck of the Right Femur (hip) which should be immediately operated, otherwise it would be fatal and might lead to a-vascular nacrosis of the head of the femur. The entire matter and consequences were explained to the complainant. The complainant gave consent for surgery and to undergo Hemi-Arthroplasty of right hip or any other operation/operations as may be deemed necessary under the circumstances under general/local anesthesia. The OP operated him successfully and discharged him on 25/06/99. He walked out of the hospital un-aided. All the papers including the advice for further medicine, exercises and restrictions on limitation of movement for next few months were handed over to the complainant.
But those documents have not been produced before the Learned District Forum. Inspite of post-operative restriction on movement the complainant did not follow the advice of the OP and he usually moved to his office and elsewhere by vehicles and bicycles also which was totally against the post-operative medical advice. The said operation was the only remedy and treatment at that stage and it was done confidently, efficiently and with all good intention and gesture.
5. The Learned Counsel for the appellant has submitted that there is no evidence that the previous operation done by the appellant was wrong. It is contended that the complainant/respondent relied on the prescriptions issued by the other doctors, but those doctors were not examined. It is submitted that the consent form was duly signed by the complainant and another person of his family. It is submitted that no cross appeal was filed by the complainant challenging some of the findings of the Learned District Forum.
6. The Learned Counsel for the appellant further submits that the Honble National Commission has been pleased to send back the case on remand directing the parties to adduce additional evidence, but the respondent herein did not adduce the evidence of any expert. It is submitted that the certificate to the effect that the complainant is handicapped has been obtained after the second operation and in the first certificate it was mentioned that the complainant was handicapped to the extent of 20% and in the second certificate it was mentioned that the complainant was handicapped to the extent of 65%. It is submitted that there is no evidence that the appellant did not perform the operation as per the required skill.
7. It has been submitted by the Learned Counsel for the appellant that after remand of the case by the Honble National Commission the complainant/respondent did not adduce any expert evidence, but the appellant adduced the evidence of the expert Dr. Kedar Banerjee who has opined that there was no negligence on the part of the appellant. It is contended that the appellant is an Orthopaedic Surgeon and the contention of the complainant/respondent in this regard was not dealt with by the Learned District Forum and, as such, the respondent cannot urge this point in absence of any cross appeal. It is submitted that the appellant is an Orthopaedic Surgeon and it is evident from the fact that he is a member of the Orthopaedic Association. It is submitted that the Doctrine of Res Ipsa Loquitur is not applicable in the facts and circumstances of the instant case. The Learned Counsel for the appellant has referred to the decisions reported in (2005) 7 SCC 1 [State of Punjab Vs. Shiv Ram & Ors.]; (2009) 3 SCC 1 [Martin F. Dsouza Vs. Mohd. Isfaq]; (2010) 3 SCC 480 [Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors.]; IV (2006) CPJ 332 (NC) [Krishna Murari Sinha Vs. Dr. Md. Basher Alam]; (2005) 6 SCC 1 [Jacob Mathew Vs. State of Pubjab & Anr.]; AIR-1970 Rajasthan-190 [Smt. Gopi & Anr. Vs. Madanlal]; AIR 1982, Supreme Court-1157 [Gambhir Vs. State of Maharashtra]; 1987-Allahabad Law Journal-483 [Smt. Rameswari Gupta Vs. Ram Nayaran Gupta]; AIR-2002-Andhra Pradesh 234 [Balaji Traders, Chirala Vs. Ponnuri Lakshmaiah]; 1(2003)-Consumer Protection Judgement-365 (Maharashtra) [Babanrao Yadav Vs. Lion Tarachand Bappa Hospital]; I (2003)-Consumer Protection Judgements 153 (N.C.) [Dr. Harkanwaljit Singh Saini vs. Gurbax Singh & Anr.].
8. The Learned Counsel for the respondent has submitted that the Doctrine of Res Ipsa Loquitur will apply in the facts and circumstances of the instant case. It is submitted that there was negligence on the part of the appellant and, admittedly, there was post-operative deformity suffered by the patient. It is submitted that after the discharge from the hospital complications arose and the patient suffered severe pain and the complainant consulted Dr. Bakshi, Dr. S. K. Gupta and Dr. V. N. Lee who opined that the earlier operation was wrong and further operation was necessary. It is submitted that the contention of the appellant regarding non-compliance of the advice given by the doctor is not correct, in as much as, in the discharge certificate there was no mention of any advice. It is further contended that the appellant in his evidence admitted that he did not issue any instruction at the time of discharge. It was only mentioned that there was slight discharge from the wound. It is submitted that there was deficiency in service.
9. The Learned Counsel for the respondent has submitted that the evidence of Dr. Kedar Banerjee adduced by the appellant cannot be treated as expert evidence. It is further contended that the appellant could not discharge the burden of proof lying upon him and there is evidence that after discharge the patient had some difficulties. It is submitted that the appellant is not an Orthopaedic Surgeon and the fact of being a member of Orthopaedic Association does not prove that he is an Orthopaedic Surgeon. It is contended that there was negligence on the part of the appellant, as a result of which the complainant had to undergo operation for the second time at Vellore and there was shortening of leg. The Learned Counsel for the respondent has referred to the decisions reported in (2010) 5 SCC 513 [V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr.]; (2009) 6 SCC 1 [Nizams Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors.]; AIR 2010 SC 2352 [Sidhartha Vashisht @ Manu Sharma Vs. State (N. C.T. of Delhi)].
10. We have heard the submission made by the Learned Counsel for the parties and also perused the evidence on record. It is the contention of the complainant/respondent that though the OP disclosed himself to be an Orthopaedic Surgeon, it was subsequently learnt that the petitioners case was not a case of removal of hip and thus the OP carelessly without taking any pre-caution negligently treated the petitioner and caused the physical deformity. The complainant in his evidence has stated that he was examined and advised by the OP to get admitted in his Nursing Home as operation was required; on query the OP told that he was an Orthopaedic Surgeon; operation was done on 04/06/99 and the OP removed his hip joint without his consent and knowledge. He has further stated that after operation he could not move properly and his hip joint was not set properly; a sore developed on his hip joint and pus was constantly coming out of the wound; he was discharged from Nursing Home on 25/06/99.
11. On the point of misrepresentation the complainant in his cross-examination has stated it to be a fact that the Doctor has not made any false representation about his qualification. The appellant has filed series of certificates from which it would appear that he is a Life Member of West Bengal Orthopaedic Association and he has given a list of degrees obtained and experience acquired by him as mentioned in Paragraph 13 of the W.V. In such view of the matter, we find that the allegation raised by the complainant regarding qualification and/or mis-representation is not acceptable.
12. From the evidence on record it appears that the complainant met with an accident on 31/05/99 having fallen from his cycle.
In the cross-examination he has stated that on 31/05/99 he consulted Dr. Addya and he went to the Nursing Home of the OP on his own accord. It is, therefore, clear that prior to the admission of the complainant in the Nursing Home of the OP, he was treated by Dr. Addya. But the papers relating to the treatment made by Dr. Addya are not forthcoming. The complainant alleged that he did not sign the consent form for the surgery. But he admitted in cross-examination that the consent form dated 03/06/99 was signed by him and his brother Ratikanta Simlai (exhibit A and A/1). On perusal of the consent paper we also find that the complainant and one Ratikanta Simlai who happens to be the brother of the complainant, signed the consent form. It is, therefore, clear that it was an informed consent. The contention of the complainant/respondent in this regard is not acceptable.
13. It appears from the evidence on record that the complainant was discharged on 25/06/99 and he joined his office on 27/08/99.
It is the contention of the complainant that even after the release from the Nursing Home there was pain and discharge of pus. The fact that he resumed his official duties on 27/08/99 goes to show that at that point of time he was fit, otherwise he could not have resumed his normal duties.
He resumed his duties two months after the date of discharge and during this period if he had experienced any serious complications/inconvenience he could have consulted the doctor, but there is no evidence to that effect.
14. In the examination in chief the complainant has stated that he sustained much pain and trouble after being released from Nursing Home and he found that his right leg had become a bit short than the left one; thereafter he consulted Dr. Bakshi at Kothari Medical Centre who opined that the operation was not necessary and the entire operation was erroneous; Dr. Bakshi opined for further operation. The complainant has further stated that thereafter he went to Dr. S. K. Gupta at Kankurgachi Orthpaedic Centre who also opined that the entire operation was done erroneously and that further operation was necessary. He has further stated that he consulted Dr. V. N. Lee attached to Vellore Christian Medical College and Hospital who opined that further operation was necessary.
15. It appears that the complainant joined his duties on 27/08/99 and consulted Dr. Bakshi on 02/09/2000, that is, one year after he had resumed his normal duties. This long gap of time between the date of resumption of normal duties by the complainant and consultation with Dr. Bakshi goes to show that the subsequent development or complications were not due to the operation done by the appellant. The test of proximity in time plays a vital role here. In the circumstances of the case the long gap of one year shows that the subsequent complications had no nexus with the earlier operation done by the appellant. There might be several changes in circumstances, movements, clinical changes etc. which remained un-explained by the complainant/respondent. The complainant consulted Dr. S. K. Gupta on 23/08/2000 and thereafter he got himself admitted in Christian Medical College, Vellore on 23/10/2000. It is in the cross-examination of the complainant that he is a Touring Officer.
It is, therefore, clear that after resumption of duties he continued with his work being a Touring Officer and this fact further strengthens the possibility of the clinical changes being caused by bodily movement etc. The subsequent inconveniences cannot be said to be the resultant effect of the earlier operation done by the appellant. We have perused the prescriptions, certificates issued by Dr. Bakshi, Dr. Gupta and Dr. Lee. Nowhere it has been stated that the earlier operation was wrong. Mere issuance of the prescriptions and certificate would not, ipso facto, prove that the operation done by the appellant was wrong.
Moreover, those doctors were not subjected to cross-examination and, as such, no probative value could be attached to those prescriptions and certificate.
16. The complainant has stated in his evidence that after being released from the Nursing Home when he started standing on his feet he found that his right leg became a bit short than the left one. As regards the shortening of leg, Christian Medical College, Vellore has issued the discharge certificate which shows that there was apparent shortening of 3 c.m. but there was no real shortening.
17. It appears that in connection with Revision Petition No.2397 of 2006 the Honble National Commission was pleased to set aside the order dated 05/04/06 passed by this Commission and remanded the case to this Commission for deciding it afresh after permitting the parties to lead their evidence or in the alternative to obtain an opinion from the Board of Experts in the relevant field constituted by Head of S.S.K.M. Hospital, Kolkata.
The complainant/respondent did not adduce any further evidence, but the appellant has adduced the evidence of Dr. Kedar Banerjee who has opined that without verifying the pre-operative and post-operative x-ray plates in connection with both the operations, that is, one done by Dr. Gangopadhyay on 04/06/99 and another done by Dr. V. N. Lee on 25/10/2000, it could not be said for whose fault the patient had been suffering from subsequent troubles and increasing disability, if at all. From the copy of the bed head ticket being annexure to the evidence of Dr. K. Bandopadhyay it appears that on 24/06/99 and 25/06/99 the patient could walk well on his own. It is, therefore, clear that at the time of discharge he was fit and, as such, he was discharged. The OP in his evidence has stated that fit certificate is issued at the time of discharge and that is also required for joining the duty. He has further stated that the operation and follow up treatment was done in this case to the satisfaction of the patient and there was nothing wrong; he gave the patient post-operational advices in writing and on 03/07/99 the patient came to him and he again gave the patient some advice.
18. In the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. (Supra) it has been held by the Honble Apex Court that in a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing proves itself and that in such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. Under the circumstances of the case, we are of the considered view that the doctrine of Res Ipsa Loquitur is not applicable.
It has been held by the Honble National Commission in the decision reported in 2011 (2) CPR 372 (NC) [Baljinder Singh Vs. National Insurance Company Ltd.] that medical negligence cannot be presumed and has to be proved by the complainant. In the instant case the complainant/respondent has failed to prove any negligence or deficiency in service on the part of the appellant.
The complainant/respondent, therefore, is not entitled to get any relief. The Learned District Forum was not justified in allowing the petition of complaint and passing the impugned judgment and order.
19. In the result, the appeal succeeds and the same stands allowed. We set aside the impugned judgment and order. The petition of complaint is dismissed. We make no order as to costs.
MEMBER(SC) MEMBER(L) PRESIDENT