Kalidas Mukherjee, President.
It is a complaint case filed by the Complainant praying for compensation to the tune of Rs.54 lakh on the ground of medical negligence and deficiency in service. The factual matrix of the case may be summarized as follows.
On 25/02/08 Chitralekha Bhattacharjee, since deceased, was of 68 years of age and got herself admitted in OP No.1 having suffered fracture in her right hip after falling down. She was under the treatment of OP No.3 Dr. R. Hom Choudhuri. She was diagnosed comminuted subtrochanteric (right) fracture and was advised surgery. For such surgery no informed consent was obtained by the OP No.3 from the Complainant. She was not explained the advantage and disadvantage of surgery. The Complainant was successfully operated on February 29, 2008 when the internal fixation with pin plate was done for subtrochanteric fracture, neck of femur right, under spinal anesthesia with C-arm control and cardiac monitoring. The operation was conducted by OP No.3. After being successfully operated the Complainant was shifted to her cabin and was advised complete bed rest. The Complainant was advised to remain in the hospital for post-operative treatment and care for at least a period of 10 days. In the days following the surgery the Complainant felt extreme pain and discomfort in her backside arising out of bed sore. The Complainant immediately informed the nursing home staff and medical personnel including OP No.3. But they did not pay any heed to such complaints of the patient and ignored the same completely. Under such circumstances, the Complainant informed her family members that she was feeling extreme pain and discomfort in her backside. The nursing home staff assured her that she was recovering well from the injuries without even bothering for the treatment of the bed sore that had developed in her backside. The Complainants family members immediately informed the medical personnel, staff, nurses, the OP No.3 and other doctors of the said Nursing Home. The medical staff and the doctors refused to pay any heed to the request made by the Complainants family members. No treatment was at all administered to the Complainant for the bed sore with the result that it became more severe. Under such circumstances, the Complainant was discharged from the OP No.1 on March 10, 2008 as per the advice of the OP No.3. The Complainant was advised a strict regime of medical discipline in connection with the hip injury sustained by her. But no advice was given to her regarding the treatment of bed sore. The medical staff and doctors including the OP No.3 completely ignored the fact that the Complainant had developed bed sore and thus completely ignored its treatment. Mr. Aloke Nath, a physiotherapist, was deployed by OP No.1 for administering physiotherapy to the Complainant so that she could regain the normal movement and mobility in her limbs. The said physiotherapist was, at all material times, aware that the Complainant had developed severe bed sore during her stay at OP No.1 and he had even advised the Complainant for proper treatment of bed sore, if she intended to recover fully.
It is the further case of the Complainant that the family members of the Complainant consulted a general physician Dr. Amitava Chakravorty on March 11, 2008. After examining the Complainant the said doctor informed her family members that the condition of bed sore was very serious and needed proper medical treatment for it to heal. In spite of extensive treatment the bed sore failed to heal. Various doctors were consulted by the Complainant and all of them opined that the bed sore had become severe by reason of the fact that the same was not properly treated from the very inception and, as such, the bed sore did not heal. The family members of the Complainant admitted her in the New Union Nursing Home for treatment of bed sore under the care of Dr. Debal Sen. At the said Nursing Home the Complainant again underwent extensive medical treatment for bed sore and substantial costs were incurred by the Complainant in the process. The Complainant was discharged from the New Union Nursing Home on May 22, 2008 and was advised complete bed rest. Upon the advice of the doctors one physiotherapist was also engaged. Around August 2008 the Complainant was again admitted in New Union Nursing Home for further treatment including skin grafting. The Complainant could not recover completely and could not lead a normal life.
It has been alleged that the Complainant suffered extreme pain and discomfort, mental agony and suffering on account of the failure/negligence/refusal on the part of the medical personnel, staff, nurses and OP No.3 and other doctors of the OP Nursing Home from the very inception resulting in the bed sore assuming serious proportions. The Complainant, under such circumstances, has filed the complaint claiming compensation of Rs.54 lakh. The Complainant by letter dated 21/07/09 requested the OPs for supply of her bed head ticket and other papers regarding treatment, but to no effect. Non-supply of papers also amounted to deficiency in service and negligence on the part of the OPs. The Complainant had sent a letter through her Advocate on July 2, 2008 to the OP No.1 asking for suitable compensation. The OP No.1 through its Advocate sent a reply dated September 26, 2008 denying liability to pay compensation. From the papers disclosed by the OP No.1 it appeared that the purported consent was signed by Sri Partha Sarathy Bhattacherjee whom the Complainant never authorized to give consent for her. The OP No.3 has not even completed the operation note by recording the procedure followed in the surgery of the Complainant. Just a few minutes before the discharge the Complainant was requested by the nursing staff to sign some papers stating that the same were required for her discharge. Accordingly, the Complainant put her signatures on some papers. The Complainant has filed the petition of complaint praying for compensation of Rs.54 lakh and costs.
The OP No.1 has filed W.V. denying all the material allegations raised in the petition of complaint. It is the case of OP No.1 that the Complainant was admitted in the OP No.1 Medical Unit with an injury to her right hip due to fall. She had the history of Hypertension, IHD, DM Type-II and Osteoporosis. She was operated successfully on 29/02/08 by OP No.3. During the post operative period the Complainant was satisfactorily improving in healing her injuries and adequate care was taken by OP No.1 as well as by OP No.3. No complication arose during post operative period. The Complainant at no point of time reported any sort of discomfort excepting normal pain. The bed sore, if any, did not develop during her stay at OP No.1. The Complainant failed to obey the instruction of the OP No.3 and there was no negligence on the part of the OPs in treating and taking care of the Complainant. The complaint is bad for non-joinder of necessary parties.
The OP No.3 Dr. R. Hom Choudhuri has filed W.V. denying all the allegations raised in the petition of complaint. It is the case of OP No.3 that the Complainant was admitted on 25/02/08 in the OP No.1 under his care with the complication of an injury to her right hip due to fall. There was comminuted subtrochanteric femur fracture right side with the history of Hypertension, Ischaemic Heart Disease, Diabetes Mellitus Type-II and Osteoporosis. The Complainant was successfully operated by OP No.3 on 29/02/08. During post-operative period the Complainant was successfully improving in healing of the injuries and due care was taken by the OP No.1 Medical Unit as well as by OP No.3. The Complainant did not develop any post-operative complications and the follow ups were recorded in the bed head ticket maintained by the OP No.1. The Complainant never reported any sort of discomfort excepting normal pain which was normal and usual in post-operative period. The movement of the Complainant was restricted for the simple reason that any reckless and unwanted movement might lead to dislocation of the joint hip or create further complication. The Complainant was allowed to sit up straight, but she did not do so. The Complainant was allowed and advised to move her left leg freely and, accordingly, there was no other complication. She was discharged on 10/03/08 from the OP No.1 with certain advice including advice to follow check up with the OP No.3 after 7 days from the date of discharge and was also advised to attend Emergency Department of the OP No.1 as SOS. It would also appear from the discharge certificate. In case of emergency situation the Complainant was supposed to report to the Emergency Unit of the OP No.1, but she neither attended the said emergency nor came back to the OP No.3 for check up after 7 days. From the conduct of the Complainant it could well be said that the Complainant had developed the alleged bed sore in her house after she was discharged from the OP No.1. Moreover, the Complainant failed to obey the instruction of the OP No.3 and there was no negligence on the part of the OP in treating as well as operating the Complainant. The complication, if any, developed due to the recklessness of the Complainant as she did not follow the advice on discharge. At the time of discharge neither the Complainant nor her family members did complain any sort of discomfort with regard to the alleged bed sore. The Complainant has failed to justify the reasons for claiming the amount of compensation.
The Learned Counsel for the Complainant has submitted that the patient filed the complaint, but during the pendency of the case she expired and in her place her son has been substituted as the Complainant. It is contended that in spite of repeated requests by the family members of the patient no step was taken by the OPs regarding the bed sore which developed during post-operative period in the Nursing Home. It is contended that no step was taken by the OPs for the supply of air mattress or water bed to prevent the onset of bed sore. It is submitted that the bed sore which developed during the post-operative period remained unattended and no treatment was made for healing of the same and, as a result, there was unbearable pain and discomfort of the patient in her backside. It is contended that Dr. (Mrs.) Ranjita Bhattacharjee, daughter-in-law of the patient told the OPs about the pain and discomfort suffered by the patient, but no action was taken by the OPs. It is contended that after discharge from the Nursing Home with the bed sore the condition of the patient was serious and on the next day of discharge she was examined by Dr. Amitava Chakravorty on March 11, 2008 and he extended the treatment for bed sore. As the said medical treatment was not achieving the desired result, Dr. Pratip Sengupta, Plastic Surgeon also examined the patient on 20/03/08 and extended the treatment for bed sore. It is submitted that Dr. M. K. Mukhopadhyay, Diabetologist at OP No.1 was also consulted over phone and it was told that the patient was not in a position to attend the OP No.1, Nursing Home/OPD. It is contended that on March 22, 2008 Dr. V. K. Bharatiya, Homoeopathic Doctor, New Delhi was consulted over phone for the treatment of the patient. As the bed sore was uncontrolled she had to undergo skin grafting which was done by Dr. Arun Ganguly, Plastic Surgeon by getting her admitted in New Union Nursing Home from 31/07/08 to 09/08/09 under Dr. Debal Sen.
The Learned Counsel for the Complainant has further submitted that there is evidence of Dr. Amitava Chakravorty, Dr. Debal Sen, Dr. Ranjita Bhattacharjee from which it would appear that the bed sore developed during the post-operative period at Nursing Home. It is contended that the OP did not adduce evidence and prayed for treating the W.V. as their evidence vide order dated 03/09/12. It is submitted that no cross-examination was done to Dr. Amitava Chakravorty. It is contended that there was medical negligence on the part of the OPs for not treating the bed sore in the post-operative days at Nursing Home and there was gross deficiency in service on the part of the OPs for which they are liable to pay compensation. The Learned Counsel for the Complainant has referred to the decision reported in I (2008) CPJ 56 (SC) [Samira Kohli Vs. Prabha Manchanda (Dr.) and Anr.]; III (2003) CPJ 194 [Punjab Nursing Home Vs. Kailash Marodia ] (M.P.); IV (2007) CPJ 274 (NC) [Nirmal Kumar Jain and Anr. Vs. Indraprastha Appollo Hospital and Ors.]; AIR 1961 Cal 359 [A.E.G. Carapiet Vs. A. Y. Derderian]. The Learned Counsel for the Complainant has also referred to the medical literature: (1) Short Practice of Surgery “ Bailey and Loves (3rd Edition), (2) Davidsons Principles and Practiace of Medicine (17th Edition), (3) Current Medical Diagnosis and Treatment “ Lawrence M. Tierney, Jr. Stephen J. McPhee Maxine A. Papadakis (International Edition) and Indian Medical Council (Professional Conduct Etiquettee and Ethics) Regulations, 2002.
It is submitted by the Learned Counsel for the OPs that there is no paper to show that the alleged bed sore developed during the post-operative days at Nursing Home. It is contended that had it been brought to the notice of the OPs that the patient developed bed sore, necessary treatment would have been made. It is contended that neither the family members nor even the patient complained of anything about the alleged bed sore. It is contended that in absence of any evidence or material the OPs cannot be held responsible for medical negligence or deficiency in service. It is submitted that the Complainant has admitted in the complaint that the surgery was done successfully. It is submitted that the surgery was uneventful and in due course the patient was discharged from the Nursing Home with necessary advice. It is submitted that the patient was asked to come to the OPD, but that was no followed by the patient.
It is contended by the Learned Counsel for the OPs that Dr. Ranjita Bhattacharjee, the daughter-in-law of the patient also stayed with the patient and she did not bring it to the notice of the OPs about the alleged bed sore. It is contended that from the discharge summary and the treatment sheet it would appear that there was no existence of any bed sore and the alleged bed sore was an afterthought. It is submitted that bed sore can develop at any point of time and after discharge the patient consulted the general physician instead of going to the OP No.1 ignoring the advice given in the discharge summary. It is submitted that the present Complainant, Sri Partha Sarathy Bhattacharjee wrote a letter to the OP No.1 for issuing medical certificate of her mother, but there is no mention of any bed sore.
We have heard the submission made by both sides and perused the papers on record. It appears that Chitralekha Bhattacharjee, since deceased, was admitted in the OP Nursing Home for the surgery of the fracture of subtrochanteric femur (right). She paid necessary charges to the OPs. The complaint was filed by the patient Chitralekha Bhattacharjee, but during the pendency of this case she expired and her son, Sri Partha Sarathy Bhattacharjee has been substituted in her place. The petition of complaint is maintainable and the present Complainant is a consumer being the legal heir of Chitralekha Bhattacharjee, since deceased.
The point for consideration is whether the alleged bed sore developed during her stay in the Nursing Home or after her discharge therefrom. It is the specific contention of the OPs that the alleged bed sore did not develop during hospitalization and it has been created for the purpose of this case. It is also contended by the OPs that there is no mention of bed sore in the bed head ticket and other papers issued by the OP No.1.
On the point of bed sore the Complainant, Chitralekha Bhattacharjee, since deceased, has stated in her evidence that she was successfully operated on February 29, 2008 when internal fixation with pin plate was done for subtrochanteric fracture neck of femur (right) under spinal anesthesia with C-arm control and cardiac monitoring. It is in her evidence that in the days following surgery, she felt extreme pain and discomfort in her backside arising out of bed sore and she immediately informed the same to the Nursing Home staff and medical personnel including the doctor. She has stated that none of them paid any heed to her complaints. It is in her evidence that she also informed her family members in this regard. She has stated that her family members, that is, her son and daughter-in-law Dr. (Mrs.) Ranjita Bhattacharjee, immediately informed the medical personnel, staff and the doctors of the Nursing Home about the bed sore and requested them to take necessary steps for the treatment of bed sore, but no treatment at all was administered to her for the bed sore with the result that the bed sore became even more severe. It is in her evidence that she was discharged from the Nursing Home on March 10, 2008 and she was advised a strict regime of medical discipline in connection with the hip injury, but no advice was given regarding treatment of bed sore. She has stated that after her discharge from Nursing Home she was examined by a general physician Dr. Amitava Chakravorty on March 11, 2008 who opined that the condition of the bed sore was very serious and he prescribed medicines. It is in her evidence that in spite of extensive treatment the bed sore did not heal and she was examined by Dr. M. K. Mukhopadhyay, Dr. Pratip Sengupta, Dr. Suddha Kalyan Paul, Dr. Biswa Ranjan Pramanick and Dr. Debal Sen who opined that the bed sore had become serious by reason of the fact that the same was not properly treated at its inception. She has stated that she was admitted to a Nursing Home New Union Nursing Home for the treatment of bed sore under the care of Dr. Debal Sen. She has stated that she was discharged from the Nursing Home from May 22, 2008. It is in her evidence that around August, 2008 she was again admitted to New Union Nursing Home for skin grafting.
In support of the Complainant Dr. Ranjita Bhattacharjee, Daughter-in-law of the patient who also stayed with the patient at the OP Nursing Home taking special permission from the said Nursing Home has also corroborated the Complainant.
It is in the evidence of Dr. (Mrs.) Ranjita Bhattacharjee that her mother-in-law continuously complained of pain in lower back, but the doctors including Dr. Hom Choudhuri advised her not to move since it would compromise the operative site. It is in her evidence that her mother-in-law was asked to sit up which she did, but pressure over the sore was present even in that position. She has stated that she along with her family members repeatedly asked whether her mother-in-law could be placed over air mattress or water bed required after surgery to avoid bed sore, but their request was not given any heed. She has stated that her mother-in-law had a history of bed sore in her earlier surgery and being diabetic was vulnerable to bed sore. It is in her evidence that after discharge of her mother-in-law on March 10, 2008 she had severe pain and discomfort arising out of the bed sore and it was so intense that it was not possible to take her to the Nursing Home/Hospital and, under such circumstances, the family physician Dr. Amitava Chakravorty examined the patient and treated her. It is in her evidence that as per advice of Dr. Chakravorty her mother-in-law was admitted in New Union Nursing Home for treatment of bed sore where she had to undergo skin grafting.
From the evidence it is clear that the patient was discharged from the OP Nursing Home on 10/03/08 and on the very next day, that is, on 11/03/08 she was examined by Dr. Amitava Chakravorty for the treatment of bed sore. The evidence of Dr. Amitava Chakravorty is of much importance. It is in his evidence that he examined Chitralekha Bhattacharjee on March 11, 2008 and issued the prescription. He was of the view that bed sore can develop, but the extent of bed sore seen on March 11, 2008 was not that of one-day old bed sore. He has further stated that had proper care been taken the post-operative bed sore of Chitralekha Bhattacharjee could have been avoided. The evidence of Dr. Amitava Chakravorty remains unchallenged. No cross-examination was done by way of questionnaire to Dr. Amitava Chakravorty. His evidence, therefore, remains an uncontroverted testimony.
It is also in evidence that the patient was, subsequently, admitted in New Union Nursing Home under Dr. Debal Sen. Dr. Debal Sen has stated that he treated Chitralekha Bhattacharjee at New Union Nursing Home till her discharge on August 9, 2008. He has stated as against question No.7, 13 and 14 as follows:
œQ.7: Is it not correct had the bed sore of Chitralakha been properly treated at initial stage the same could be cured?
Ans. Yes.
Q.13: Would you agree that had the bed sore of Chitralekha been properly treated immediately the same being noticed the skin grafting could have been avoided?
Ans. Possibly.
Q.14 Would you agree the infection causing bed sore of Chitralekha could be hospital borne at post operative stage at Aurobindo Seva Kendra?
Ans. Possible.?
In cross-examination Dr. Debal Sen has stated as against the question no.4 and 5 as follows:
œQ.4: Is it correct to say that you had treated said Chitralekha Bhattacharjee now deceased based on the information provided to you by the patient and her relatives?
Ans. Treatment was extended by me after clinical examination of Ms. Bhattacharjee, considering investigation reports and history of the patient.
Q.5: Do you agree that bed sore of a patient can be developed at any point of time at post operative stage even at home?
Ans. Yes.?
It is significant to note that no evidence was adduced by the OPs and vide order dated 03/09/12 the OPs prayed for treating the W.V. as evidence. Evidently, therefore, no rebuttal evidence was adduced by the OPs. Moreover the Complainant has filed the photographs of the bed sore which also have not been challenged by adducing rebuttal evidence. From the evidence of Dr. (Mrs.) Ranjita Bhattacharjee, daughter-in-law of the patient, it appears that no air mattress or water bed was provided to the patient. It is an admitted fact that bed sore can develop at any stage. From the treatment sheet dated 02/03/08 at 9.15 a.m. it appears that the patient complained of pain. It is the specific contention of the Complainant that there was severe pain and discomfort in the backside due to bed sore. In this context the mentioning of pain in the treatment sheet dated 02/03/08 indicates that it was not merely the pain in the region of operation, but it was for something else. On the same day ankle movement and physiotherapy were advised, but it did not prove to be sufficient to manage the pain and discomfort as alleged by the Complainant. As regards the non-compliance of the advice of the doctors by the patient regarding physiotherapy, there was no mention to that effect in the discharge summary or in the treatment sheet.
As to providing air mattress/water bed Dr. Hom Choudhuri (OP No.3) has stated in reply to question no.21 as follows:
œQ.21: Did you advise for use of water bed for the patient at the above period??
œReply to question no.21: Generally such advice was not given.?
It is in evidence that the patient was diabetic and 68 years of age. It is also clear that due to surgery there was prolonged lack of physical movement. Under such circumstances, there was every likelihood of developing bed sore during the post-operative period. It is true that a physiotherapist was engaged by the OP No.1. But the abstinence of the OP from providing air mattress/water bed points at the lack of due care and caution on the part of the OPs. The evidence of Dr. Amitava Chakravorty that the bed sore of such proportion was not possible to develop overnight, cannot be disbelieved, especially when the OPs did not adduce any rebuttal evidence. Nothing was elicited in cross-examination which could shake or cast any shadow of doubt on the veracity of the testimony of the Complainant and her witnesses. The severe bed sore as found by Dr. Amitava Chakravorty on March 11, 2008 immediately after her discharge from the Nursing Home goes to show that there was continuity of such bed sore beforehand. We are, therefore, of the considered view that the bed sore developed during her stay at the OP No.1 Nursing Home for which all the OPs are jointly and severally responsible. It was negligence on the part of the OPs and deficiency in service as well.
As regards the informed consent it appears that on the reverse side of the consent form there was signature of the doctor. The son of the patient and the patient also signed the consent form. Under the circumstances, there is no ground to disbelieve the informed consent.
As regards compensation and costs, we find that the Complainant has filed copies of bills to the effect that she had to undergo treatment of bed sore and skin grafting. Having regard to the copies of the bills and the mental agony and harassment suffered by her, we are of the considered view that it would meet the ends of justice if the consolidated sum of Rs.5 lakh is awarded in favour of the Complainant.
The petition of complaint is allowed in part. The OPs are, jointly and severally, directed to pay Rs.5 lakh towards the costs and compensation to the Complainant within 45 days from this date failing which the interest @ 9% p.a. shall accrue on the aforesaid amount from the date of default till realisation.