ANUP KUMAR GHOSE vs T.K. BISWAS

THIS is a complaint under Section 17 of the Consumer Protection Act, 1986. The complainant''s case is that on 14.12.94 his motorcycle suddenly skidded on the road as a result of which he was thrown out and suffered severe injuries on his left knee and leg. After a preliminary examination by his family physician he was referred to the opposite party No. 1 Dr. T.K. Biswas. Dr. Biswas examined him and advised him for admission to Branagore Nursing Home for further treatment. On 15.12.94 the complainant had an X-ray examination at Uttam Clinic, B.T. Road. The X-ray plate was shown to the opposite party and the complainant was admitted to Branagore Nursing Home on the same day at about 12.30 p.m.

ON 16.12.94 Dr. Biswas visited the complainant at the Nursing Home and on the following day he was operated on his injured leg. After operation his injured knee and leg were wrapped in a plaster of Paris cast. It has been alleged that in spite of the operation the complainant continued to be in extreme pain, but nevertheless he was discharged on 18.12.94 with the advice to keep the plaster of Paris cast for a period of eight weeks and to take medicines. The discharge report described his ailment as fracture Tibial Condyle (L.T.).

The condition of the complainant worsened and the pain in his left knee grew more and more. Dr. Biswas allegedly refused to examine him any further when contacted for this purpose and ultimately the complainant consulted Dr. M.S. Ghosh, a famous orthopaedic surgeon. Dr. Chose after looking at the X-ray plates advised a second operation without which gangrene might develop. The complainant was accordingly admitted to Kothari Medical Centre and an X-ray revealed that the left leg of the complainant had become lean and black. The complainant was operated in his knee again by Dr. M.S. Ghosh by applying the open and screw method of surgery. No further plaster of Paris cast was done on the affected portion, which was wrapped with a simple bandage. The complainant was discharged on 13.1.95 and was advised physiotheraphy by Dr. Ghosh. After following the advice of Dr. Ghosh the complainant was ultimately fully cured.

THE complainant has alleged that Dr. T.K. Biswas deliberately failed or neglected to cure him. He is, therefore, guilty of deficiency of medical service. THE complainant has accordingly claimed the re-imbursement of his medical expenses at the Branagore Nursing Home under Dr. T.K. Biswas and also the expenses of his treatment at the Kothari Medical Centre. He has also claimed compensation for his loss of business. THE total amount claimed by him as compensation and damages is Rs. 5,60,000/-. After the filing of the complaint Dr. M.S. Ghosh was also made a party, although there was no allegation of medical negligence against him. Dr. Ghosh, however, did not appear and did not file any version on his behalf.

DR. T.K. Biswas contested the case by filing a written objection. His contention is that he treated the complainant to the best of his ability by applying his professional skill as is done in cases of closed fracture injury as suggested in the Book aystem of Orthopaedics and had followed the conservative method. He further stated that on 16.12.94 40 C.C. of blood aspirated from the left knee joint of the complainant and hence reduction was done under G.A. on 17.12.94 with X-ray control. DR. Biswas denies that he neglected to attend the patient when informed of the persistence of pain in his knee. He further denies that he had any medical negligence in treating the complainant. He also denies the alleged loss of business of the complainant and contends that he has no liability to pay the medical or other expenses alleged to have been incurred by him. The points for determination are: (1) If there is any deficiency in medical service rendered by O.P. No. 1, and (2) If so, what relief, if any, the complainant is entitled to. Decision Regarding Point No. (1) Admittedly there was a scooter accident of the complainant and admittedly he was treated by Kr. T.K. Biswas. According to the complainant even after the plaster setting of his knee his pain continued, so much so that he was compelled to consult another orthopaedic surgeon, namely. Dr. M.S. Ghosh who advised a second operation. According to the complainant the second operation was successful. The question, however, is if the complainant was not cured of his ailment by the first operation, will it make him liable for a negligent medical service?

IN this case no oral or documentary evidence has been adduced by the complainant in support of his allegation that Dr. T.K. Biswas acted negligently in treating him. The complainant, however, tried his utmost to get the opinion of Dr. M.S. Ghosh, an eminent orthopaedic doctor, who ultimately cured the complainant by a second operation. But Dr. Ghosh was not available in spite of the best efforts from his end. Obviously Dr. Ghosh chose not to meet an embarrassing situation by being asked to make any comment on the treatment of a fellow doctor whose treatment was not successful. We shall have, therefore, to dispose of the case without any evidence or expert opinion.

IN the well-known case of INdian Medical Asscn. v. V.P. Santha and Others, reported in (1995) 3 CTJ 969 SC (CP) the Supreme Court has given a brief outline of the cases which can be decided by a Consumer Court. The Supreme Court''s view expressed therein is that cases of consumer disputes requiring expert medical opinion or consideration of voluminous evidence should be left to be decided by civil Courts where full-fledged trial is available. IN this case no opinion of medical expert is forthcoming. The complainant''s allegation that Dr. Biswas neglected in his duty of medical service is dependent only on the fact that he was cured by a second operation on a second medical opinion. We have no hesitation in finding that such an allegation based on the personal notion of the complainant is not correct. A doctor is required to use the reasonable degree of skill expected of him. It is prima facie not negligence if a better and more effective treatment was subsequently available. There is no sure guarantee of cure in a surgical operation and so the only fact that Dr. Biswas could not cure the complainant and that some other doctor cured him on a further treatment does not ipso facto prove the negligence of Dr. Biswas. We, therefore, hold that the negligence attributed to Dr. Biswas has not been proved in this case. The complainant has argued that Dr. Biswas was not the expert he posed himself to be. But no evidence has been adduced in this regard. It is not proved that Dr. Biswas was a quack or that he had no competence to treat a patient with a fracture. This point is, therefore, decided in the negative. In view of our decision above the complainant is not entitled to any compensation from Dr. Biswas. This case fails.

The case is accordingly dismissed on contest. There will, however, be no order for costs. Complaint dismissed.