Bhattacharya Orthopaedics & Related Research Centre (Pvt) Ltd. & Ors vs Anup Kumar Dhar

Challenge in this Revision Petition under Section 21(b) is to order dated 11.9.2015 in FA/554/2013 on the file of State Consumer Disputes Redressal Commission, West Bengal, Kolkata (for short "the State Commission"). By the impugned order, the State Commission allowed the Appeal preferred by the Complainant and set aside the order of the District Forum and remanded the matter back to the District Forum to give an opportunity to the appellant/complainant to adduce expert evidence to be followed by questionnaire and reply and rebuttal evidence by Opposite Parties (OPs for short). The District Forum was directed to decide the case afresh on merits in accordance with law.

Very briefly, the facts stated in the Complaint are that the Respondent/Complainant had sustained a fracture injury on his left patella on 23.11.2009 due to fall on a hard substance and was taken to a local nursing home where he was initially treated. But as the said nursing home had no adequate infrastructure in treating bone injury, he was taken to OP-1 hospital on 24.11.2009, where he was examined by Dr. Shailendra Bhattacharyya (OP-3) and, on 26.11.2009, operation was conducted by Dr. Subhra Chatterjee (OP-2). The complainant remained in the said hospital for post-operative recovery till 3.12.2009, when he was discharged with an advice to attend on 8.12.2009 for removal of stitches. It was verbally told by OP-2 that implants would be removed after two years. On 8.12.2009, when the Complainant approached OP-1 for removal of stitches, alternate stitches were removed and the Complainant was advised to attend again on 16.12.2009. On 16.12.2009, OP-2 was not present and one Dr. Suman Dutta, another Orthopaedic surgeon, removed the remaining stitches and observed that there was superficial skin sloughing. Complainant was advised to visit again after two weeks but due to severe pain and serious discharge from the skin sloughing, the Complainant visited the hospital on 25.12.2009 and again on 8.1.2010. As the discharge was not controlled, he was examined by Dr. S. Bhattacharyya, who advised the complainant to get an x-ray of the left knee, which indicated that left broken patella was united T.B.W. in situ superficial infection and noted that the implant had to be removed. Complainant was advised to do some quadriceps and knee bending exercises. On 18.1.2010, complainant once again approached OP-1 and was examined by Dr. S. Mukherjee who prescribed some antibiotics and Tab. P-650 with instruction to come again after 3 weeks or SOS.

Thereafter, on 28.1.2010, the Complainant visited OP-1, as discharge and swelling were not controlled in spite of taking the medicines, which were prescribed on 18.1.2010. On examination, OP-3 observed that there was discharge from the left knee; swelling (+); surgical sear held with (no legible); redness (+), super patellar swelling (+). On seeing the x-ray plate taken on the same date, he observed that "left knee_(not legible) united broken patella left c gap in situ, infected broken united patella, left with infection c implant in situ". He also told that implants were responsible for infected patella and had no other alternative but to remove the implants to control the infection in the patella.

After blood test as advised, Complainant again visited OP-1 on 10.2.2010, and he was examined by Dr. Sumon Dutta, as OP-3 was not available. He advised complainant for admission. Complainant hesitated to be admitted as OP-3 was absent, as he was assured by OP-3 that on 28.1.2010, he would be present and the second operation would be done in his supervision. On 16.2.2010, second operation was performed for removal of implants fixed for TBW on left broken patella. On 17.2.2010, x-ray was done which indicated that the broken left patella of the complainant was not united with mild incongruity in articular surface. He was discharged on 19.2.2010 with the observation that his condition was "stable". After the operation on 16.2.2010, the complainant once again was examined by Dr. Sumon Dutta and OP-3 on 24.2.2010, 1.3.2010 and 8.3.2010, stitches were removed but the pain in the left knee increased and sear also had developed. On 16.3.2010, OP-3 observed that "it was post-operative case of united broken patella with superficial infection after implant removal". It is averred that infection could not be controlled in spite of follow up advice and the complainant once again approached OP-3 on 19.3.2010 who had written in his prescription that there was non-union of broken patella with gap mild incongruity to articular surface. Finally in March 2010, the complainant approached Apollo Hospital, Chennai and on 1.5.2010 Arthroscopic Artholysis (left patella) was done. It is averred that the complainant had no previous history of osteo-arthritis in his left knee joint and at present, he is unable to bend his left knee more than 90 and walk normally and discharge his professional duty as he is always in pain in left knee joint.

Complainant has averred that it is only the gross negligence of the OPs in performing the TBW and the non - union of broken patella that he had to undergo the subsequent surgery for which he has sought a direction to the OPs to pay Rs.10 lakh towards compensation, Rs.1 lakh for unfair trade practise and Rs.8 lakh for prolonged harassment and costs.

OPs filed written version admitting that the complainant was operated for TBW of the fractured Patella and that he was given spinal anesthesia and was discharged in satisfactory condition with an advice to walk with knee cap and also suggested some knee bending exercises, quadriceps with antibiotics and vitamins. He was also advised to come for review and report for periodical check - ups. They submitted that he was admitted for infection and all precautions were taken to cure the infection; that the implants were removed to control the infection. This was necessary because organisms developed a biofilm around the colony and multiple resistant organism colonize and grow inside the biofilm which does not allow the antibiotics to reach the organism. Hence the metal had to be removed. After second surgery the infection of the complainant was controlled swelling subsided; and the complainant was repeatedly advised to take rest but the complainant failed to follow the instructions of the OPs and was negligent in following the advice of the doctors. It is pleaded that most common complication in such a surgery are : "(i) wound dehiscence,

(ii) failure of fixation, gap in fracture, incongruity of articular surface,

(iii) knee stiffness due to lack of exercise, neglect and other causes, capsular injury,

(iv) reflex sympathetic dystrophy plus unknown pain,

(v) infection and in this case also the risk factors are smoking and alcohol and this complaint is habituated in smoking and alcohol which came to knowledge of the Opposite Parties later on from the mouth of the complainant and then and there the complainant was advised not to smoke and not to take alcohol and the OP-3 submits with regard to the treatments in Apollo Hospital, Chennai which this OP has observed from the documents as supplied to him that the Apollo Hospital did nothing for the fracture, only arthroscopic arthrolysis to regain full movement of the joint, which was not much when the Opposite Parties saw the complainant last and the Apollo Hospital controlled the infection by giving him a course of Augmentin (antibiotics) for some time and the main complaint of the complainant was pain which is a symptom and not a sign (finding by any kind of clinical examination it cannot be measured by any method)"

It is further pleaded that the necessary antibiotics and care and caution was taken even post-operatively and the complainant was discharged in a satisfactory condition and that even OPs were not allowed to complete the treatment and no negligence can be attributed to them as a medical literature filed along with the written version in support of their case.

The District Forum, based on the evidence adduced, dismissed the complaint and observed as follows : "Relying upon the preceding discussions including findings in dealing with present case and also adopting well settled principles of medical negligence in our considered opinion and view it is proved that complainant has failed to make out any case of medical negligence, negligent manner of service or any deficiency in service on the part of the opposite parties but on the contrary it is apparent that OPs performed their duties with reasonable skill and competence and in the interest and welfare of the patient and thus complainant has not thus succeeded in proving that post operative infection or shortening of leg of the complainant was of the fault on the part of the opposite parties and at the same time complainant has not been able to prove by any congent evidence that by operation held by Dr. M.M. Reddy actually patella fracture was reunited. Last but not the least we want to say that negligence has to be established by cogent material and evidence but cannot be presumed and so this Forum very cautiously processed this findings on extensive study of several books and review.

Aggrieved by the order of the District Forum, the complainant preferred appeal before the State Commission. State Commission, while allowing the appeal, observed as follows : "Both sides have filed medical literature along with BNA. From the medical literature adduced by both sides it is clear that Tension Band Wiring in case of patella fracture was the standard medical practise and procedure. As regards the allegation of non-union of fractured patella it is found from the prescription dated 19/03/10 that there was non - union of fractured patella with gap. The Appellant has filed the copy of the discharge summary issued by Apollo Hospital, Chennai showing that the date of admission was 30/04/10 and the surgery was done on 01/05/10. The patient was discharged on 02/05/10. The diagnosis was noted as "post traumatic stiffness - left knee". The surgery done was "arthroscopic arthrolysis - left knee". The x-ray report dated 03/04/10 runs as follows:

"A transverse fracture line is seen in the patella with mild posterior displacement of the superior fragment.

The medial tibiofemoral joint space appear reduced.

Intercondylar tibial spiking with subchondral sclerosis is seen in the medial tibial plateau.

No lytic or sclerotic lesion is seen.

Soft tissues appear normal.

Impression Transverse fracture left patella with mild displacement. Osteoarthritis left knee."

Impugned order of the State Commission reads as follows : "The appeal is allowed. We set aside the impugned judgment and order. The case is sent back on remand with the direction to the learned District Forum to give opportunity to the complainant to adduce expert evidence to be followed by questionnaire and reply and rebuttal evidence by OPs. The learned Forum will thereafter decide the case on merits according to law. Both parties are directed to appear before the learned District Forum on 14.10.15

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Heard the learned counsel for the petitioner. He submitted that the District Forum had gone through the entire medical literature, the documents on record i.e. prescriptions and gave its finding and that the expert opinion is not necessary in this case. He further submitted that the State Commission had committed gross illegality in remanding the matter back to the District Forum seeking expert opinion.

I observe from the record that this is a case of medical negligence and that admittedly an operation was performed by the OPs wherein TBW for the left patella was undertaken subsequent to which the infection had developed and it is the opinion of the OPs that because of infection, it became necessary to remove the implants and that proper care and caution was taken. In a catena of judgements, the Hon''ble Supreme Court has held that whenever expert opinion is necessary in a case of medical negligence, it is the discretion of the consumer fora to call for it.

The Apex Court made it clear that before the consumer fora if any of the parties want to adduce expert evidence, the Members of the fora, by applying their mind to the facts and circumstances of the case and the material on record, can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the Members of the fora especially when retired Judges of Supreme Court and High Courts are appointed to head National Commission and the State Commission respectively. Therefore, these questions have to be judged on the facts of each case and there cannot be a mechanical or straight jacket approach and when the fora finds that an expert evidence is required, it can seek assistance of an expert as the question whether a medical practitioner or the hospital is negligent or not is a mixed question of facts and law.

I observe from the record that the State Commission had also given the liberty to the OPs to file their reply to the questionnaire and also the affidavits thereafter.

I do not find any illegality in the order of the State Commission. I reiterate that I have not expressed any opinion on the merits of the case. Hence, the Revision Petition is dismissed with no order as to costs. Revision Petition dismissed.