Decided on January 08,2021

Shyam Sunder Dash Appellant


S M KANTIKAR,J. - (1.) Both the Appeals have been filed against the Final Judgement / Order dated 09.12.2009 passed by the State Consumer Disputes Redressal Commission, Odisha, Cuttack (hereinafter referred to as the "State Commission") in Consumer Complaint No. 57 of 2001 wherein the State Commission did not hold the Opposite Parties liable for medical negligence and dismissed the complaint. However it held the Tata Memorial Hospital for functional irregularities and ordered the Opposite Parties Nos. 1 and 2 to compensate the Complainant No. 2 by making a payment of Rs. 1 lakh plus Rs. 10,000/- towards the cost of litigation.
(2.) For the convenience, the facts are drawn from First Appeal No. 53 of 2010. The Appellants were complainants and the Respondents were the Opposite Parties in the complaint and they are accordingly referred in this Order.
(3.) Brief facts: The Complainant No. 1 is voluntary Consumer Association and the Complainant No. 2 (Shyam Sundar Dash) is the employee of IMFA Ltd. at Therubali (Odisha). His daughter Shrutilekha Dash, about 16 years of age, (since deceased, hereinafter referred to as the "patient") was taken to IMFA Hopsital, Therubali in the month of December 1998 for pain in left leg / knee. She was further referred to the Orthopedic Surgeon, Dr. Rama Chandra Rao at District Hospital, Raigad, wherein Biopsy of left knee joint was performed and it was diagnosed as Osteosarcoma of left knee. Thereafter, the IMFA Hospital referred the patient to Tata Memorial Hospital (hereinafter referred to as "TMH") at Mumbai. On 26.02.1999, the Complainant No. 2 admitted his daughter to TMH. On 29.06.1999, Dr. Rajesh Badhwar (hereinafter referred to as the "Opposite party No. 3") Surgeon, Bone & Soft Tissue Service at TMH examined her and confirmed the diagnosis of Osteosarcoma. She was advised for few cycles of Chemotherapy followed by knee replacement with artificial limb at a later stage. The patient underwent Chemotherapy for more than five weeks and on 29.04.1999 was advised by the attending surgeon for Total Knee Replacement (TKR) with KOTZ Modular Implant. A total estimate of Rs. 3 lakh was intimated to the Complainant. It was alleged that the order for prosthesis (implant) from M/s Howmedica - the Opposite Party No. 4 was delayed because of the faulty internal administration of TMH. The supplier did not supply the required Prosthesis within the stipulated time because TMH did not clear previous dues of the supplier. The prosthesis having different measurement was requisitioned. Though the Prosthesis was available at discounted price with the help of Cancer Patient Aid, but TMH refused to accept it. It was further alleged that the patient was admitted in February, 1999 but the surgery was delayed to 15.09.1999, which caused additional expenditure due to increased higher price for prosthesis and the patient had undergone one more dose of Chemotherapy which was harmful for the patient. The Complainant further alleged that both the operative teams i.e. Cancer Surgeon and Plastic Surgeon were not present during the surgery which has a norm in such surgical process. The Plastic Surgeon too came to the Operation Theatre after two hours of the knee replacement surgery only on getting an emergency call. He expressed his dissatisfaction for such delay and told that it may cause infection to the operative wound. The plastic surgeon also expressed displeasure that there was no water available in the Operation Theatre for hand scrubbing; therefore he had to go to another Operation Theatre. It was further alleged that the Prosthesis was not implanted properly which caused damage to the blood vessels and profuse bleeding. It was the carelessness and deficiency in service of treating doctors due to which the patient developed infection at operated site. Thereafter, the doctors at TMH again advised to replace the Prosthesis with free fibula grafting with additional dose of Chemotherapy. It was alleged that though, the Surgeons at TMH were aware that further treatment would not yield any positive result, yet, they asked the Complainant No. 2 to deposit additional Rs. 1.5 lakh for Surgery and Rs. 2 lakh for post-surgery Chemotherapy. However, the patient's father did not agree and he returned to Therubali. On 08.03.2000, the patient got admitted in nearby Christian Hospital, Bischam at Cuttack. The infected Prosthesis was removed on 15.04.2000, however the severe wound infection persisted. It was alleged that after removal of the Prosthesis, it came to light that different size of prosthesis was used during surgery at TMH. It was bigger in size, did not fit in to the patient, which caused damage to the vessels and caused further delay in reconstructive Plastic Surgery. The Prosthesis bears different numbers, and nowhere the name of the manufacturer or the place of its manufacture was mentioned , thus it gave the suspicion that the Prosthesis used was of an inferior quality. As a life saving measure, the Doctors at Christian Hospital, Cuttack (Opposite Party No. 5) carried out amputation of the leg. She stayed in the Hospital from 08.03.2000 to 20.06.2000 but could not recover from infection and expired on 08.12.2000. Being aggrieved by alleged deficiency of service and medical negligence of the treating doctors, a Consumer Complaint No. 57 of 2001 was filed against the Opposite Parties Nos. 1 to 4 before the State Commission, claiming compensation of Rs. 19, 90,400/- with interest at the rate of 18% p.a. jointly and severally.;

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