State Consumer Disputes Redressal Commission
Tapas Kumar Bose vs The Chairman, Medica Super Speciality ... on 29 November, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/54/2015 ( Date of Filing : 11 Feb 2015 ) 1. Tapas Kumar Bose S/o Late Sunil Kumar Bose, 115A, Motilal Nehru Road, P.S. Lake, Kolkata -700 029. ...........Complainant(s) Versus 1. The Chairman, Medica Super Speciality Hospital 127, Mukundapur, E.M. Bypass, Kolkata -700 099. 2. Dr. Arindam Kar, Director(Critical Care) C/o Medica Super Speciality Hospital, 127, Mukundapur, E.M. Bypass, Kolkata - 700 099. 3. Dr. Sutanu Hazra C/o Medica Super Speciality Hospital, 127, Mukundapur, E.M. Bypass, Kolkata - 700 099. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER PRESENT: Mr. Abhijit Chakraborty , Advocate for the Complainant 1 Ms. Sritama Mondal, Advocate for the Opp. Party 1 Ms. Sritama Mondal, Advocate for the Opp. Party 1 Mr. Abhik Kr. Das, Mr. A. Sengupta, Advocate for the Opp. Party 1 Dated : 29 Nov 2022 Final Order / Judgement SAMIKSHA BHATTACHARYA, MEMBER
The instant complaint has been filed by the complainant under Section 17(1) (a) (i) of C.P. Act, 1986 against OPs alleging medical negligence.
The facts of the case, in brief are that, the complainant is the unfortunate son of deceased Smt. Namita Bose, who died due to the negligence and inappropriate aseptic condition and isolation facilities in the ICU of the Hospital and the incorrect treatment of the hospital doctors. The OP NO. 1 is the chairman of the medical institution who claims itself to be "one of the largest super specialty hospitals of Eastern India which is committed to bring the best in health care." The OPs No. 2 &3 are the doctors attached to OP No. 1 hospital and are responsible for acts committed by them in the premises of OP No. 1. It is pertinent to mention here that the OP No. 2 is the Director of Critical Care of the OP No. 1 Hospital.
In or about June 2013, the complainant's mother Smt. Namita Bose, since deceased, a 78 years old lady, suffered a fall at her house resulting into swelling and pain in the left humerus and accordingly availed preliminary treatment available at her residence and, thereafter she was admitted at the OP No. 1 Hospital for treatment on 13.06.2013 at 2:44 pm. At the time of admission, the patient had a known case of Hypertension, Diabetes Mellitus - II, Hypothyroid, Post CABG and Post PPI. Pursuant to the admission as aforesaid the said patient was diagnosed with fracture in left humerus and also with acute on CKD, Anaemia, and Atrial Fibrilation and was admitted under the care of Dr. Sutanu Hazra, the OP No. 3 who is a well-known consultant Orthopaedic Surgeon at the hospital. In spite of being aware of the fact that the patient was a senior citizen of 78 years old and already aknown case of several diseases, the OP No. 3 recommended for surgery for plate implantation. This was done at the instance of OP No. 2 and was done without caring and/or taking into consideration that chance of successwas very less and the associated post-operative risk was very high. They did not takeany second medical opinion or ask the patient party to obtain anysuch opinion. The risks and benefits of the surgery were also not documented before the patient party. It is a layman's knowledge that a patient of 78 years lady and moreover a female, it is very likely that she would have Osteoporosis which was not taken into consideration at all as the same is being reflected from the discharge report dated 25.06.2015 which proves their purely commercial approach and reckless negligence in providing medical service. It is further evident from the discharge summary 25th June, 2013 that in the course of investigation, after being admitted, it was found to have deranged renal function along with hyperkalemia due to refectory hyperkalaemia in spite of receiving conservative anti hyperkalaemic measure and as a result, the scheduled date of operation was postponed. This clearly shows the fragile and susceptible health condition of the patient. Apart from the operation, she was also found to be anaemic and received blood transfusion for correction of anaemia. She also underwent haemodialysis for correction of hyperkalaemia and finally underwent ORIF of fractured left humerus on 18.06.2013 and the same was declared to be successful by OP No. 3 and his team. Thereafter, on 25th June, 2013 on 12:34 pm the said patient was discharged from the OP No. 1 Hospital along with a list of medication and recommendation for restricted diet and physiotherapy. Nowhere in the discharge report, it has been mentioned what kind of plates have been used to the fracture. The precautions to be taken for home treatment of the patient was extremely skimpy.
The patient was discharged on 25.06.2013 with some medication and advice. The discharge report and the verbal advice was totally inadequate for the high risk patient. After the operation, the said patient persistently suffered pain in the left arm and her health condition gradually deteriorated. Consequently, the patient was again taken to OP No. 1 hospital by the complainant with a complaintof herpersistent pain in the operated part to visit OP No. 3. Observing the surgical portion of the left arm OP No. 3 was of the view that "some screws are reaching out and the head collapsing" which is mentioned in his prescription dated 17.07.2013 and he further advised "early removal of implants". On 12.08.2013, the said patient was again checked up by OP No. 3 and it was recorded as "proximal Humerus Left with back out of screws" and it was also recorded that the case was discussed with senior surgeon Dr. Vikas Kapoor who after going through the case file and physical condition of the patient advised early removal of the implants and also advised anti osteoporosis therapy. OP No. 3 advised the complainant to admit the patient.Having no other alternative, the patient was readmitted once again on 23.09.2013 at 3:10 pm under the supervision of OP No. 2. After admission, the patient developed severe shortness of breath for which the patient was incubated and was on ventilation for 18 days and she was also found to have cellulitis of both lower limbs. The initial reports suggested urinary tract infection with acute chronic kidney disease. Professor M. Kole, Md. DGO FRCOG, Government of West Bengal was brought for second opinion who after going through the case file and the examination reports was of the opinion that the patient cannot take the pressure of surgery, even not the pressure of local anaesthesia and as a result, the operation for the removal of the implants was postponed. Thereafter, the said patient recovered marginally but she continued to be anuric for which she was on hemodialysis through right internal jugular HD catheter and in such a condition she was discharged on 09.10.2013 with recommendation for haemeodialysis thrice a week along with a home oxygen therapy and home BIPAP support at night at 14/6.
On 11.10.2013, the said patient was againbrought to the same hospital for dialysis as recommended at the time of discharge. During the course of dialysis, her blood pressure severely fell and the condition was worsened as she acquired extremely drug resistant hospital borne infection "Acinetobacter Baumannii".
On 17.10.2013 the said patient expired due to septic shock and multi organ failure as recorded in the death certificate issued by Medica Super Specialty Hospital/OP No. 1. The complainant has alleged that the actual cause of death is infection of hospital borne bacteria Acinotobacter Baumannii and the said fact has been admitted and accepted by OP No. 2 and the OP No. 1 which is reflected from the complainant's letter dated 17.10.2013 addressed to OP No. 1 which was duly accepted by the OP No. 1. The complainant had availed the services of the OPs for a consideration of Rs.11,98,869/- approximately towards hospital charges. Therefore, the complainant is liable to get compensation. Hence, the petition of complaint praying for direction upon the OPs to pay jointly and/or severally to refund the entire amount of cost of treatment at the institution of OP No. 1 i.e., Rs.11,98,869/- along with 12% interest from the date of filing till realization, compensation of Rs. 50,00,000/- and litigation cost of Rs.2,00,000/-.
OP No. 1, OP No. 2 & OP No. 3 filed their separate written version.
Though the OP No. 1 and OP No. 2 filed two separate written version, they have stated the same in their separate written version.
In their written version, OPs No. 1 and OP No. 2 denied all material allegations inter alia stated that the OP No. 1 hospital is a Super Speciality Hospital which is one of the largest hospital in Eastern India. OP No. 2 is the Director of the Critical Care Unit of OP No. 1 hospital. It is true that on 13.06.2013, the mother of the complainant, Smt. Namita Bose, who was then 78 years old and suffered from hypertension, Diabetic Melitus-II, Hypothyroid, Post CABG, and Post PPI, was admitted in the OP No. 1 hospital. She had fractures in her left humerus and acute CKD and anaemia and atrial fibrilation and she was admitted under the joint care of OP No. 2 and OP No. 3. OP No. 3, as a necessity for treatment of the patient, advised for plate implantation and since the patient was suffering from multiple health problems, she was admitted in the Critical Care Unit of OP No. 1 of which OP No. 2 was the Director. The course of treatment for the patient was decided after taking into consideration all the comorbidities of the patient and after duepre-operative cardiology, nephrological, endochronological and anaesthesiological consultations. Fact remains that the complainant was residing outside India and left his mother abundant and is now talking of various allegations just to fulfil his medical expenses incurred for his mother's treatment which he intends to squeeze out from the OPs. OP No. 1/Medica Hospital worked as a team and in this case, OP No. 3 is one of the consultants in the Medica Institute of Orthopaedic Sciences, where the team consults other senior and experienced surgeons and takes opinion for the betterment of the patient. However, it is stated that surgery was advised after due consultations with Dr. Vikas Kapoor, Director of the Medica Institute of Orthopaedic Sciences at the OP No. 1 Hospital, who examined the patient and her x-rays and reports. The amount of risk involved in the surgery was very much made known to the complainant and also to the patient but the complainant is intentionally now feigning ignorance. It is not correct that the risk and benefit of the surgery was not documented for consideration of the patient party. It is not true that osteoporosis was not considered as the same had not been reflected in the discharge report dated 25.06.2013. Osteoporosis was taken into consideration as these fractures do occur in osteoporotic patients and surgery was advised as the fracture, if left without surgical treatment, would be very painful and could result in chances of injury to surrounding structures. The advised surgery was a standard procedure. It is done in most similar patients keeping in mind the various other medical co-morbidities. The patient had deranged renal function with hyperkalemeia for which the scheduled operation was postponed. Haemodialysis was done due to reduced potassium and blood was transfused for correction of anaemia so that she could withstand the planned surgery on 18.06.2013. The locking compression plates were used for the surgery and it was one of the best quality trauma implants and the surgery was successful as documented in the post-operative x-rays and the clinical condition of the patient was absolutely fine and the surgical wounds were healing. The said patient was discharged after a successful operation on 25.06.2013 with the advice as available in the discharge certificate. The patient party was given proper post-operation counselling and advice at the time of discharge which was supplemented by way of written advice on the discharge certificate. Reportedly the patient very rarely used the arm pouch sling at home which was advised strictly from the day of surgery and the patient inadvertently put all pressure on that arm to propel herself up in awkward position leading to improper and abnormal load on the arm. Anti-Osteoporotic therapy which was advised to the patient was not started for many weeks, presumably because of the fact that the patient's son was not available in the country at that time. The patient visited the OP No. 3 on 17.07.2013 for post-operative follow up. OP No. 3 advised the removal of the implants as there was plate displacement, for the benefit of the patient.
On 12.08.2013, upon re-examination of the patient and upon consultation and discussion of the case with Dr. Vikas Kapoor for removal of the surgical implant OP No. 3 again advised the removal of surgical implants. However, the advice of OP No. 3 was not followed for several weeks as the patient's son was reportedly in abroad and wanted a later date for surgery. The patient was finally readmitted to OP No. 1 hospital after many months on 23.09.2013 by her son for removal of the implants. However, removal of the implants could not take place since the patient was in poor medical condition and she was suffering from cellulites of both lower limbs, urinary tract infection and chronic kidney disease. She also developed severe shortness of breath for which she had to be incubated and ventilated. She was given the utmost attention by all concerned medical specialitiesin the OP hospital and was provided the best medical treatment for the next few days as per hospital's standard of protocol. OP No. 1 is not aware if any Professor M. Kole visited the patient and what opinion, if any, he provided in the course of treatment of the patient. The patient was discharged on 09.10.2013 with the advice of haemeodialysis thrice a week and home oxygen therapy and nightly BIPAP support. The initial post-operative domiciliary care of the patient was observed to have been extremely poor, probably due to absence of any responsible close relatives at home. The patient visited the OP hospital for her scheduled dialysis but it was denied and disputed that she acquired the infection namely, Acinetobacter Baumannii. The OP hospital adhered to strict infection control practices and protocols as per standard accepted norms which includes strict monitoring and control of hand sanitization as well as environmental disinfection. All necessary measures were adopted by the OP No. 1 and OP No. 2 to ensure that the patient in the CCU was kept in hygienic and clean condition. OP No. 1 hospital is NABH accredited and has a complete chapter on hospital infection control. A copy of OP No. 1's protocol on Environmental Cleaning and Disinfection and protocol on Hand Washing is annexed with the written version. The patient expired due to septic shock and multi organ failure as recorded in the medical certificate for cause of death. Neither the OP No. 1 nor the OP No. 2 had on any occasion made any admission of hospital acquired infection as alleged. The letter dated 17.10.2013 is principally related to inability of the complainant to settle the hospital bill. A mere sweeping remark of the complainant in the said letter about a hospital acquired infection does not and cannot imply admission or acceptance. Till date the complainant has not paid the remaining hospital bill amounting to Rs.53,449/-. The complainant has made baseless acquisition as a shield to avoid payment of due hospital bill. The cause of death of the patient was due to multi organ failure which resulted from her numerous medical complications and co-morbidities. The claim of the complainant has not been quantified and is exaggerated. Therefore, bothOP No. 1 and OP No. 2 have prayed for rejection of the complaint case with cost.
In his written version OP No. 3 namely Dr. Sutanu Hazra denied all material allegations interalia stated in the same line of arguments of OPs 1 & 2 about the age, physical condition and comorbidities of the patient at the time of admission. The patient visited the OP No. 3 for the first time on 13.06.2013 with injured shoulder following a domestic fall at home. The case history also revealed that the patient was extremely obese. After completion of all necessary and required pre-operative tests and examinations the OP No. 3 advised surgery and also admission under OP No. 1 on 13.06.2013. If the fracture was left without surgical treatment it would be very painful and may result in chances of injury to surrounding structure. Final decision of surgery was taken after consultation with senior surgeon Dr. Vikas Kapoor . During pre-operative investigation , the patient was found to have deranged renal function along with hyperkalemia due to refractory hyperkalemia in spite of receiving conservative anti-hyperkalemic measures and as such the initial plan for surgery was postponed. The patient received blood transfusion for correction of anaemia and underwent haemodialysis for correction of hyperkalemia. Dr. Vikas Kapoor also examined the patient and opined for surgery. All the co-morbidities of the patient was pre-operatively noted. Osteoporosis is one of the most common ailments suffered by ageing female patient . This factor was taken into consideration as this type of fracture do occur in Osteoporotic patient. The patient became fit for operation for internal fixation of fracture which commenced on 18.06.2013. Locking compression plates of best quality trauma implant were used and operation performed as per standard medical practice and procedure. Surgery commenced on 18.06.2013 by OP No. 3 went well and successful, surgical wound healing was perfect and it was documented in post operative x-rays. In course of post operative stay in hospital, patient developed episode of Atrial Fibrilation which controlled initially by medication. Hyperkalemia was corrected and the reasonable glycemiccontrol was achieved by the Endocrinologist and Cardiology team.
Before discharge from hospital , the patient's physical condition was reviewed by orthopaedic team consisting of OP No. 3, Dr. Vikas Kapoor and by Dr. N. Chanda (Endocrinologist) and Cardiology team and only after the patient was found to be in stable condition she was discharged on 25.06.2013. Considering the advance age and co morbidities of the patient all precautionary measures were taken prior to surgery.
On 25.06.2013 , the patient was discharged with long list of medication and recommendation for restricted diet , use of armpouch sling and physiotherapy. All post operative guidelines alongwith supportive and symptomatic treatment were advised in discharge summary. Complainant was fully aware that lockingcompression plates of best quality trauma implant was used.
The patient visited OP No. 3 on 17.07.2013 complaining uneasiness and pain. Reportedly, the patient rarely used armpouch sling at home whichwas advised strictly from the day of surgery, leading to improper and abnormal loading of the fractured arm. That apart physiotherapy as advised was never done, anti-osteoporotic therapy, as advised, was also not started. After careful examination of the patient, it was found that surgical wound healed. Observing the symptoms OP No. 3 was of view that some screws of the implant may be loosening as such immediately prescribed x-ray (L) shoulder (AP) and advised constant use of pouch slim. The OP No. 3 also advised removal of screws for the benefit of the patient.
Before discharge from hospital , the patient's physical condition was reviewed by orthopaedic team consisting of OP No. 3, Dr. Vikash Kapoor and by Dr. N. Chanda (Endocrinologist) and Cardiology team and only after the patient was found to be in a stable condition, she was discharged on 25.06.2013 with detailed list of medication and recommendation for restricted diet , use of arm pouch sling and physiotherapy. All post operative guidelines alongwith supportive and symptomatic treatment were advised in discharge summary. Complainant was fully aware that lockingcompression plates of best quality trauma implant was used.
Again on 12.08.2013, upon ex-examination and after consultation with Dr. Vikas Kapoor, the OP No. 3 again advised for removal of the surgical implant. But the patient was admitted after many months on 23.09.2013 for removal of implants and the removal of implant would not take place due to poor medical condition of the patient. All the allegations against OP No. 3 was denied and the same version was stated in the written version of OP No. 3 as in the written version of OP No. 1 and OP No. 2. Since there is no cause of action ever arose against OP No. 3 and no deficiency of service against OP No. 3, Ld. Advocate for OP No. 3 prays for rejection of the complaint with cost.
In course of argument Ld. Counsel for the complainant drew our attention by showing the prescription dated 13.06.2013 issued by OP No. 1 hospital which is annexed as Page No. 15 & 15A with the petition of complaint. In the left side of the prescription it was written Diabetes Type 2, Post CABG and so on, but nowhere it is written that the patient may be suffering from osteoporosis. In the next page of the prescription under the heading "Adv" X-ray, ECG, Chest X-ray and medication was advised but no test was advised for osteoporosis. Since the patient was 78 years old lady it was very much needed to go for a osteoporosis test. In the discharge summary under the column 'Present History', it was written " This 75 years old lady, known case of hypertension, diabetes mellitus type II, hypothairoyd, post CABG, post PPI admitted with aforementioned complainants for further evaluation."
In the prescription dated 13.06.2013, common advice was given, but no special advice was mentioned for osteoporosis test or treatment. It is very much common for a 78 years old lady in our country that she may have osteoporosis but no such measure was taken neither by OP No. 1 and OP No. 2 nor by OP No. 3. Under the heading 'Diagnosis at Discharge' of the discharge summary dated 25th June, 2013, there is nothing towards mentioning osteoporosis. From the discharge summary and documents, it is also not evident that special plate i.e., locking compression plate which is needed for the osteoporotic patient has been used for the patient. The patient visited the OP No. 3 at OP No. 1 hospital on 17.07.2013 for post-operation visit. On that date, the doctor has written on the prescription that some screws backing out and heads collapsing and the doctor advised injection Bonista 0.1 ml which is given for osteoporotic patient. Since some screws are backing out then the doctor first noticed that the patient is suffering from osteoporosis and for that reason injection Bonista was prescribed. But the doctor started the medicine when the damage has already been done.
Ld. Counsel for the complainant has submitted that according to Black's Law Dictionary negligence per se as " conduct, whether of action or omission which may be declared and treated as Negligence without any argument or proof as to the Particular Surrounding Circumstances, either because it is in violation of statute or valid Municipal Ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no Careful person would have been guilty of it".
Thereafter, the patient visited the OP No. 1 hospital before OP No. 3 for check up on 12.08.2013 and in that prescription, it is noticed that the case is discussed with Dr. Vikas Kapoor and OP No. 3 advised for early removal of the implants and Anti-Osteoporotic Therapy. When the patient was again hospitalized second time in the OP No. 1 hospital from 23.09.2013 to 09.10.2013 for removal of surgical implants, which ultimately could not be done due to other complications, in the discharge summary under the heading 'Diagnosis at Discharge'osteoporosis was noted.
And after her discharge on 9th October, 2013, she continued to suffer pain due to wrong operation. During the stay of OP No. 1 hospital, she got infected with highly drug resistant hospital borne infection which was due to improper sterilization of the ICU and other equipment. The said infection was solely hospital borne and there is no other sources of such infection. Non-maintainability of hospital hygiene is the only cause of infection and the fact is well-documented. The complainant's mother was the victim of commercial procedure where no due diligence was given towards the patient. The ICU was not insulated as per medical standard. The relevant documents are annexed as the proof of the same. The complainant's mother expired due to wilful negligence on the part of the treating doctor being OP No. 3 who had not taken adequate measures and precautions before undertaking such complicated case and the situation further aggravated when the complainant's mother got infected with hospital borne infection due to incomplete insulation in the ICU and the use of unsterilized equipment. During the entire course of action of the OPs fall within the definition of negligence as per Black's Law Dictionary. Hence, the complaints application should be allowed in terms of the order as prayed for. In support of his argument, Ld. Counsel for the complainant has submitted the literature on Acenetobacter Bauminnii, and the judgments passed in Arun Kumar Manglikvs Chirayu Health and Medicare Private Limited (SLP No. 3019-3020 of 2016) and V. Kishan Raovs Nikhil Super Speciality Hospital & Another.
Ld. Counsel for the OPs. No. 1 & 2 has submitted before us that the patient was admitted first on 13.06.2013 and was discharged on 25.06.2013. Thereafter, she was readmitted on 23.09.2013 and was discharged on 09.10.2013. She expired on 17.10.2013. Ld. Counsel for the OPs No. 1 & 2 has submitted that the patient was obviously in stable condition under the treatment of OPs, therefore, she was in home for three months. The Ld. Counsel for the OPs No. 1 & 2 drew our attention by showing the questionnaire filed by OPs No. 1 & 2. In question No. 15, it was asked whether the complainant was present with the patient during the post surgery domiciliary period. The complainant replied to Question No. 15 as under: "I was not there in India immediately after my Mother's surgery, but I had 24 hours Nurse and permanent staff in my home to look after her. My wife also undertook a trip to India to supervise things and make other arrangements." That means, the complainant was not in India and the patient was in the care of nurses. Therefore, the complainant's mother was uncared. The argument on behalf of the OPs No. 1 & 2 is that the complainant was residing outside India and left his mother abandoned and is now giving various allegations just to fulfil the medical expenses incurred for his mother's treatment which he intends to squeeze out from the OPs. He also drew our attention by showing the letter dated 17.10.2013 to OP No. 1 issued by the complainant where he wrote that he was paying Rs.1,35,000/- in cash towards settlement of his outstanding. The hospital is still entitled to recover the outstanding bill. Moreover, the Ld. Counsel for OPs No. 1 & 2 has submitted that no expert report has been cited by the complainant. In the case of contributory negligence there can be chance of negligence on the part of complainant. There is no negligence on the part of the hospital. The patient was 78 years old lady with co-morbidity. The prescriptions reveal that the hospital authority has taken the utmost care to the patient. They have also filed the document towards Environmental cleaning and Disinfection which is filed with the written version as well as with their Brief Notes of Argument. There is monitoring committee for the hospital and thehospital is a NABL accredited hospital, therefore, there is no chance of getting infection from the hospital.
Ld. Counsel for the OP No. 1 and OP No. 2 has further argued that at the time of first admission before doing any osteoporosis test, it was very much needed for the surgery and that was done.
Moreover, the patient has not taken due diligence which was needed as post-operative care. She did not use the arm sling and did not take due care. The damage was not caused due to operation.
OPs No. 1 & 2 have cited the judgments passed in Laxman Balakrishna Joshi vs. Trimbak Bapu Godbole & Anr. [1969 (1) SCR 206], Malay Kumar Gnagulyvs. Dr. Sukumar Mukherjee & Ors [(2009) 9 SCC 22], Sabita Garg vs. National Heart Institute [(2004) 8 SCC 56], Jacob Mathew vs. State of Punjab & Anr. [(2005) 6 SCC] Dr. K.K. Sharma vs. Fortis Hospital (passed by Hon'ble National Commission in FA No. 243 of 2008), Deepak Gupta vs. Indrapratha Appolo Hospitals (passed by Hon'ble National Commission in Case No. 46 of 2006) . Kuckyjohney @ KuckyMeriniPunnoosse vs. Administrator, Sent Thomas Hospital and Ors. (passed by Hon'ble National Commission in RP No. 696-698 of 2014).
In course of argument, Ld. Counsel for the OP NO.3 firstly drew our attention by showing the literature on osteoporosis which he annexed with the BNA. The literature was related to humerous fracture.
The literature is related to humerous fracture. In the said literature, the causes humerus fracture is written as follows :
Humerus fractures usually occur after physical trauma, falls, excess physical stress, or pathological conditions. Falls that produce humerus fractures among the elderly are usually accompanied by a pre-existing risk factor for bone fracture, such as osteoporosis, a low bone density, or Vitamin B deficiency.
The Ld. Advocate for the OP No. 3 has submitted that the cause of humerus fracture of the patient is osteoporosis. It was very urgent to operate a patient suffering pain due to humerus fracture and, therefore, to heal her pain, the OP No. 3 decided for urgent operation. From the report, it is seen that only two screws were loosening, not all the screws and from the report it is evident that recovery from fracture was OK. He has further argued that proximal humerus fracture often occurs among elderly people with osteoporosis who fall on a outstretched arm. The discharge summary dated 9th October, 2013, it was written under the heading 'Diagnosis at Discharge' osteoporosis and OSA. OP No. 3 has taken all the accepted protocols. The screws were loosening since the patient did not follow the post-operative care. She did not consult any physiotherapist , she did not start Bonista Injection in time. When it was necessary the OP No. 3 has taken the opinion of the Senior Orthopedic Surgeon Dr. Vikas Kapoor. All the sufferings of the patient were due to negligence on the part of the patient.
Ld. Counsel for OP No. 3 also argued that the loosening of screw in elderly patient with osteoporosis is a known complication. He further argued that had the complainant taken any expert opinion the same would have been clarified in detail that such loosening is known to medical science. The patient had not suffered any complication, there was onlya minor discomfort due to loosening of screw and for that reason no intervention was planned considering the age and co-morbidities of the patient.There is no negligence on the part of the OP No. 3 and hence, he prays for dismissal of the complaint case.
Ld. Advocate for the OP No. 3 has cited the judgment passed in Leela Devi vs. Shatrughan Ram & Anr. passed by Hon'ble National Commission.
Upon hearing the parties and on careful perusal of the record, it is admitted fact that the complainant's mother who was 78 years old lady, fell at her home and thereby resulting into swelling and pain in the left humerus and was taken to Medica Superspeciality Hospital/ OP No. 1 on 13.06.2013 for check-up and accordingly, the complainant's mother was checked up by OP No. 3. After inspection, the OP No. 3 advised for implantation of plate and thereby further advised for admission at OP No. 1 hospital. Accordingly, said patient was admitted in the OP No. 1 hospital on 13.06.2013 for operation and implantation of plate. From the prescription issued by the OP No. 3 it is evident that the patient was suffering from hypertension, diabetic Melitus type II, Hypothyroid, post CABG and Post PPI. The operation was conducted and the complainant's mother was discharged on 25.06.2013. The discharge summary dated 25th June, 2013 is very vital document where 'Reason For Admission' was written as Pain and swelling and left shoulder following a domestic fall 2 days prior to admission and the 'Diagnosis at Discharge' was Fracture left humerus, hypertension, Diabetic Melitus Type II, Hypothyroid, Post CABG and Post PPI, Acute on chronic CKD, anaemia, Atrial Fibrilation. From the documents, it is also evident that the patient went to OP No. 1 Hospital to visit OP No. 3 for post operation check up on 17.07 2013. From the prescription dated 17.07.2013 issued by OP NO. 3, it is observed that OP No. 3 has written some screws backing out and head collapsing and the OP No. 3 suggested to take injection Bonista 0.1 ml. Thereafter, the patient visited the OP No. 3 on 12.08.2013 for follow up and then it was prescribed for early removal of implants and anti-osteoporotic therapy as advised by Dr. Vikas Kapoor. On that date it was firstadvised for early removal of implants and anti-osteoporotic therapy as well as the doctor/OP No. 3 has written that the case was discussed with Dr. Vikas Kapoor. Thereafter, on 23rd September, 2013, the patient was second time admitted for Follow up case of fracture proximal Humerus (left) with back out of screws, Admitted for removal of screws through surgery and the patient was discharged on 9th October, 2013. In that discharge summary, it was first diagnosed as osteoporosis and OSA. It is also admitted fact that she was discharged on some medicine along with recommendation for haemodialysis thrice weekly, home oxygen therapy and home BIPAP support at night at 14/6. Though she was admitted for removal of humerus screws (left) she developed severe shortness of breath after admission, for which she had to be incubated and ventilated. She was also found to have cellulites for both lower limbs. Initial reports suggested urinary tract infection with acute chronic kidney disease. The patient was initially given BIPAP support but her symptoms worsened for which she was ventilated. The haemodialysis was initiated in view of the severe Oliguria with Metabolic Ocidosis. She wasmanaged as a case of urosepsis with cellulites complicated by acute or chronickidney disease and diastolic heart failure. All these observations are recorded in the discharge summary dated 09.10.2013. Thereafter, the patient was again brought to OP No. 1 hospital on 13.10.2013. On that date, it was diagnosed by the laboratory of OP No. 1 hospital that the patient has been infected by Acinotobacter Baumannii. Ultimately, the patient died on 17.10.2013.
The complainant's case is that neither OP No. 1 & 2nor the OP No. 3 did take it into consideration there is high chance of osteoporosisof patient and determined the course of treatment only after conducting the bone density test for osteoporosis. We have also observed that in the prescription as well as in the first discharge summary nowhere it is mentioned that the complainant is suffering from osteoporosis and no suggestion was given for osteoporosis test or treatment. The complainant's case isthat due to absence of this test, the OP No. 3 did not take the proper measure and for that reason, the screws were loosen so early. Moreover, the patient died after infection with the Acinetobacter Baumannii which is hospital borne infection.
On the other hand, the OPs' argument is that the complainant is residing outside India and thereafter he did not take care of her aged mother and for that reason all sufferings happened to the patient. The patient did not take physiotherapy and did not start Bonista Injection as per advice of second prescription dated 17.07.2019. It is evident from the third prescription dated 12.08.2013.
Now, the question is whether the hospital authority and the doctors were negligent in treating the patient. From the record it is clear that no bone density test was conducted at the time of first admission at OP No. 1 hospital. The argument on behalf of OPs No. 1 &2 and OP No. 3 for urgent operation cannot be taken into consideration since the bone density test is a necessary test for implantation in case of the patient of 78 years old lady. If this test was not needed then the doctor should not prescribe Bonista Injection at the time of follow up/check up after operation. At the time of follow up , OP No. 3 noticed that screws were loosening and this is due to osteoporosis and only at that time the doctor suggested for Bonista Injection. There is also ample scope to understand that without osteoporosis test there is no need to use locking compression plate implants. If all these precautionary steps were taken into consideration at first instance at the time of admission, the screws may not be loosening and the patient had not to suffer the problems which arose after the operation. The argument on behalf of OPs No. 1 & 2 that the patient was not under proper care since her son was residing outside India also cannot be taken into consideration since the patient was under care of the nurses and also under the care of her daughter-in-law and there is no material evidence that the patient was not using arm pouch sling. The patient was second time discharged on 9th October, 2013 and, thereafter, the patient visited the hospital on 11th October, 2013 for dialysis as advised by the OP No. 1 at the time of second discharge on 9th October. On 13th October, when the patient was admitted in CCU, the report shows that the patient was infected with the Acinetobacter Baumannii. From the literature it is evident that Acinetobacter Baumanni is hospital borne infection and drug resistant disease. At the time of operation and implantation, the OP No. 3 had not discussed with any senior surgeon for second opinion. The OP No. 3 straightway advised for operation for insertion of implants without taking care of other severe ailments of the patient. In the evidence as well as in the cross-examination of OP No. 3 that there would have been chance of osteoporosis due to Diabetic Melitus Type II. Therefore, the OP No. 3 has neglected to suggest any test for osteoporosis and did not take any measure for osteoporosis. He advised for operation without taking into consideration of osteoporosis. The Bone Mineral Density test was not conduced prior to the operation in order to check the bone density before insertion of implantation, which is evident from prescription dated 13.06.2013 & the discharge summary dated 25.06.2013. Therefore, the basic principle of medical negligence "what ought to have been done was not done" clearly applies in the present case. The complainant's case is that since the test of osteoporosis has not been taken into consideration, local plates were implanted but the OPs have argued that the locking compression plates were inserted which are suitable for osteoporosis patient, without any tangible evidence. Neither the OPs. No 1 & 2 nor OP No. 3 has annexed any document in support of their argument that locking compression plate was used. When the patient visited OP No. 3 for follow up then the doctor noticed that the screws were loosen and, thereafter, the Injection Bonista prescribed, anticipating the patient was suffering from osteoporosis. Upon second check up on 12th August, 2013, it was advised by OP No. 3 that the patient needed to beoperated for second time for removal of the implants after discussion with senior surgeon Dr. Vikas Kapoor and Anti-Osteoporotic Therapy to be initiated immediately. If this caution was taken at first stage then the patient could have averted such sufferings. Though the patient was admitted for removal of implantation, due to other complications, the patient was discharged on 9th October, 2013 without removal of implants and the patient continued to suffer pain of operation and got infected with Acinotobacter Baumannii Bacteria which is drug resistant and hospital borne disease.
In view of above discussion, we find there is two-fold negligence on the part of OPs. No. 1 & 2 and OP No. 3. The OPs had not taken into consideration to conduct the bone density test and the result was loosening of some screws. This again required the patient to be admitted again for removal of implantation and ultimately, the patient was infected with Acinotobacter Baumannii. This is the negligence on the part of the OPs No. 1 & 2. At the time of staying in the hospital, the patient was infected with Acinetobacter Baumannii which is one kind of Gram negative and drug resistant bacteria and is transmitted from hospitalsdue to improper sterilizationof the ICU and other equipment. Acinetobacter Baumannii is an opportunistic pathogen or colonizer of hospitalized patient, especially severally unwell patients on intensive care units and its most common way of transmission is contact, mainly from hands of hospital staff. Though the hospital is NABL accredited hospital, the patient was infected with such disease which proves that there is negligence on the part of the hospital. The negligence is on face of the record and the relevant documents already annexed with the petition of complaint.
Secondly, OP No. 2 being the Director of the OP No. 1 hospital is supposed to monitor such measures in order to ensure the hygiene in the CCU keeping in mind the critical condition of the patient. It wasthe duty of the hospital to take proper care of an elderly patient who was admitted in the hospital number of times within a short span of time. The lacuna in the first phase of treatment resulted in requirement for early removal of plates and for that reason she was advised for second operation and readmitted for the second operation and got infected with Acinotobcter Baumanni which was very much drug resistant.
The judgement cited by the Ld. Advocates on behalf of the OPs are not applicable in the case in hand. In the instant case, the OP No.3 did not investigate the patient properly. The conduct of the Doctor was not of the standard of a reasonably competent practitioner in his field. The Doctor did not give due consideration that the patient may have osteoporosis. In this context, we have noticed the reply of OP No 3 against question no. 14 asked by the complainant in the ofquestionnaire. Question no. 14 of the complainant and the reply of the OP No.3 are as follows :
" Question 14 : Did you conduct / advised osteoporosis test to check the bone density of complainant's Mother?
Ans. to Q.14 : She was in acute pain and not in a condition to be sent for BMD tests and was more important to fix it after admission and optimization as she had a displaced fracture and to minimize the risks if left untreated as such as detailed in my evidence in Para 6."
In the course of first admission from 13.06.2013 to 25.06.2013, no documentary has come to us that OP No.3 consulted with the senior surgeon Dr. Vikash Kapoor as claimed by the OPs. No single scrap of paper has come to us which proves that 'Locking Compression Plates' were used for implantation.
The argument on the point of absence of expert opinion also cannot be taken into consideration since in the case in hand the negligence is apparent. In this connection, we also rely upon the judgment passed in V. Kishan Raovs Nikhil Super Speciality Hospital.
Therefore, this is a case of medical negligence and as such, the complainant is entitled to compensation for suffering of his mother/patient since deceased.
We are of the view that since there is medical negligence on the part of OPs No. 1 &2 and OP No. 3, the complainant is entitled to compensation though monetary compensation cannot compensate his mother's death and sufferings.
In view of above, the complainant case succeeds.
Hence, it is ORDERED
That the complainant case being No. CC/54/2015 be and the same is allowed on contest against OPs No. 1, 2 and 3.
OPs No. 1, 2 and 3 are jointly directed to pay compensation of Rs.20,00,000/- (Rupees Twenty Lakh) only to the complainant within 60 (sixty) days from the date of passing this order, out of which Rs.10,00,000/- (Rupees Ten lakh) only to be paid by the OPs No. 1 & 2 and Rs.10,00,000/-(Rupees Ten lakh) to be paid by OP No. 3.
There is no order as to costs.
The instant case is, thus, disposed of accordingly.
Let a copy of this order be supplied to the parties free of cost. [HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER