: J U D G M E N T :
The brief fact of the case is that the complainant had been suffering from gall bladder problem since 10.04.12. The complainant contacted Dr. Jana i.e., OP No. 1 on 10.12.12. After necessary test and as per advice of OP No. 1 laparoscopic cholecystectomy operation has been done by OP No. 1 at Prantik Nursing Home i.e., OP No. 4 herein. The complainant was released from said Nursing Home on 22.12.12. After operation his lower abdominal pain started, Bilrubin increased day by day as per report of diagnostic centre. Thereafter, Dr. Bhattacharya i.e., OP No. 2 examined the complainant / patient on 31.12.12 at Kolkata National Medical College and Hospital. After examination it was found that the complainant was suffering from Jaundice due to injury of bile duct which was noted at outdoor ticket of the said Hospital doctor. OP 2 doctor also noted “Post Operative Jaundice developed & bile leakage”. Thereafter M.R.C.P. was done. As per report it was clear that there was upper biliary stricture. Doctor (OP 2) advised him for further operation. Complainant became gradually weak day by day. After observing the critical condition of complainant/patient, Dr. OP 2 advised the complainant to contact Dr. i.e., OP 3 herein. The complainant met him & as per advice of OP 3, the complainant got admission at Hospital on 11.01.13 and on 14.01.13 Dr. Roy (OP 3) explored his abdomen & operated again. Thereafter, the complainant / patient was admitted at ITU for eight days. However after such operation the complainant / patient has got back his life. There is gross negligence & deficiency in service on the part of OP No. 1.
The OP No. 1 contested this case by filing written version stating, inter alia, that OP No. 1 doctor advised the complainant to operate the gall bladder. The operation was done at Prantik Nursing Home, Krishnagar. The complainant was admitted on 16/12/2012 and was released on 22/12/2012. It was further submitted by the OP that usually in normal anatomy the position of gall bladder situates at the right side of common bile duct. But in this case the position of the gall bladder was just on reverse side. At the time of operation the said doctor OP 1 found it. OP 1 also stated that this unusual position made the operation much more complicated and immediately after observing the same through monitor, OP No. 1 informed the patient party about the complicacy. At that time this OP though verbally advised the patient party to do the operation after opening the abdomen but they did not agree with the said proposal of said doctor. They insisted to do it through laparoscopy. It is further submitted that in this particular case, the placement of gall bladder was just in reverse position attached with common bile duct and therefore there was every chance for injury in CBD. Being a responsible doctor, he (OP No. 1) referred the complainant to senior doctors as there was a complication after operation. The patient did not turn up till 09/01/2013. This OP had no knowledge what sort of treatments were received. The complainant again came to this OP on 10/1/2013 and without any further delay he was advised to take admission at Saktinagar District Hospital on 10/1/2013 under the care of this OP. The said OP immediately discharged the storage of fluid and referred him again to CNM College and Hospital at Kolkata. The complainant again went to CNM college on 11/01/2013. But thereafter, what happened the OP 1 had no knowledge. There is no negligence, fault and deficiency in service on the part of OP 1, so this instant petition is liable to be rejected with cost.
OP 4 also contested this case by filing written version stating, inter alia, that the complainant was admitted in this nursing home for his treatment under care of Dr. Jana, OP 1 and after operation he was released on the basis of discharge certificate issued by the concerned doctor. OP No. 4 had no other relation regarding treatment provided to the complainant. There is no gross negligence or deficiency in service on the part of OP 4. So OP 4 may be released from this case.
As per order No. 7 dated 29/4/2014 summons / notice has already been served upon pro-forma OP nos. 2 and 3. But they do not appear before the Forum after receiving the same. So the case proceeded exparte against pro-forma OPs 2 and 3.
Now the Forum is to consider the following points:-
- Whether the complainant is to be treated as consumer or not as per
Consumer Protection Act 1986.
- Whether there is any gross negligence or error or mistake or deficiency in service on the part of OPs or not,
- Whether the complainant is entitled to get any relief as prayed for.
We have perused all documents including complaint, written version, written argument filed by both parties.
DECISION WITH RESAONS
Point No. 1: Approaching before the Consumer Forum it is the duty of the complainant to prove himself / herself as a consumer as per Consumer Protection Act, 1986. In the instant case the complainant was admitted in the OP’s Nursing Home & various other Hospitals as per advised of OP’s doctors for the purpose of gall bladder operation & for post operation surgery & to that effect the complainant paid the proper fees, i.e., consideration amount to the OPs doctors. All the doctors & Nursing Home in the instant case are the service providers as per Consumer Protection Act, 1986. So as per status of the complainant & OPs/doctors, the complainant is to be treated as consumer as per Consumer Protection Act, 1986.
Thus, the point No. 1 is decided.
Point Nos. 2 & 3:
In Laxman Balkrishna Joshi Case the Supreme Court held that a person (doctor) who holds himself out ready to give medical advice & treatment impliedly undertakes that:-
- He is possessed of skill & knowledge for that purpose.
- He owes a duty of care and decide whether to undertake the case
- A duty of care in deciding what treatment to give
- A duty of care in the administration of that treatment.
A breach of any of these duties gives a right of action for negligence to the patient.
So a doctor owes to his patient “to bring to his task & reasonable degree of skill & knowledge” and “to exercise a reasonable degree of care.”
Again error of judgment on the part of a doctor, (e.g., wrong diagnosis) would tantamount to negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is bonafide mistake. This may be excusable under certain circumstances. But a mistake which would tantamount will not be pardoned.
In Bolam vs. Frien Hospital Management Committee, the house of lords held that a doctor is not guilty of negligence if he has acted in accordance with a practice so accepted by a responsible body of medical men, skilled in that particular art.
At the time of argument Ld. Advocate for the complainant cited some case laws which are analyzed below:
- AIR 1992 Bombay 478 – Dr. S. Baidya vs. Paulo Joel Vales & Ors. held that professional services rendered by a doctor to a patient treated by him does not appear to come within the purview of a contracts or within the meaning of such explanation as contemplated in the Contract Act & liability best known crude negligence & utmost recklessness displayed by the doctor while treating the patient would not be contractual liability & it would be purely a tortuous liability.
- AIR 2000 Madras 340 – Mrs. Arpana Dutta vs. Apollo Hospital Enterprise & Ors. it was held that doctrine of res ipsa loquitur squarely applies to facts. Concerned Hospitals & doctors both are liable to pay damages suffered by patient. Hospital cannot escape from liability merely by stating that there was no master & servant relationship between Hospital & surgeon who did the operation. Hon'ble Court also held that plaintiff patient undergoing second surgery i.e., correctional surgery plaintiff would be entitled to claim refund of amount paid to Hospital & concerned doctor due to guilty of negligence.
Now we try to explain whether there is any negligence / mistake / error on the part of doctors regarding operation of gall bladder of complainant or not.
As per medical science it is fact that the gall bladder can be operated either by laparoscopy or by open abdomen & both these methods are medically accepted methods as per principles laid down in Bolam case. In this instant case the doctor took the method laparoscopy i.e., micro surgery & now it is to be decided that how far this method is applicable upon the patient / complainant.
In the written version by way of affidavit & in written argument, OP No. 1 Dr. Jana clearly admitted that during operation, OP No. 1, Dr. Jana observed through monitor that the position of the gall bladder of the complainant patient was just on reverse side, i.e., to say that in usual case gall bladder situates at right side of common bile duct, but in this case it was found that the said organ situates at the left side which is very much unusual. Thereafter, the OP No. 1, Dr. Jana verbally suggested to open the abdomen to avoid complication, but the patient party did not agree with Dr. Jana & thereafter Dr. Jana operated the gall bladder by laparoscopy i.e., micro surgery instead of open abdomen. The OP No. 1, Dr. Jana also stated in his written version stating, inter alia, that as the gall bladder was situated in an unusual place attached to CBD therefore, the same sustained injury & the very moment after observing the matter Dr. Jana OP 1 referred the complainant patient to higher institute for getting better treatment. OP No. 1 Dr. Jana also admitted in his written version that there was every chance of injury in CBD as the gall bladder was just in reverse position attached with common bile duct. It is also admitted by OP 1 that during the operation stage, Dr. Jana detected said anatomical problem of the complainant/patient.
As per version of Dr. Jana it is clear that there was a complication in respect of operation of gall bladder. There was an anatomical problem of the patient complainant. All these things were clearly known to the OP No. 1 before actual operation. It is also admitted by OP No. 1, Dr. Jana in his written version that it would be better to do the operation after opening the abdomen instead of laparoscopy i.e., micro surgery. So it is the best opinion or thought of Dr. Jana that for avoiding complication the method of opening abdomen is the best & correct alternative method instead of laparoscopy i.e., micro surgery. Regarding the consent of patient party it is our view that they are totally laymen having no knowledge of medical science. They are not doctors. They are not expert in medical field. When the OP 1, Dr. Jana came to the final decision that the opening abdomen is the best method towards the operation of gall bladder, in this situation we can easily say that why the doctor took the method of laparoscopy i.e., micro surgery instead of alternative method i.e., method of opening abdomen.
Regarding consent of the patient party, no documents were submitted by OP 1. For the sake of argument if we assume that the consent was given regarding laparoscopy, in that situation being a reasonably skillful medical man the OP No. 1, Dr. Jana should take his best decision & method of operation so that the reasonable care can be given to the complainant patient. But he took the wrong method after knowing fully well the actual position of the patient. Again he had a chance to refer the complainant patient to another specialist doctor, at that very moment before operation but in vain.
It is clearly proved from the written version & written argument filed by OP 1, Dr. Jana, that Dr. Jana was well & fully aware regarding chance of injury in CBD in laparoscopy method due to anatomical problem & he also admitted in his written argument that due to unusual position of gall bladder attached to CBD, the same sustained injury. As per our view, at this situation it should be the duty of OP No. 1, Dr. Jana to take the method of open abdomen instead of laparoscopy i.e., micro surgery for avoiding complication & alleged injury of complainant patient. The same view has also been taken by OP No. 1 himself at the time of operation of gall bladder, but at last finally he adopted the method of micro surgery instead of open abdomen by taking mere plea of consent of patient party causing gross negligence, error & mistake on the part of Dr. Jana.
Furthermore that before starting of operation Dr. Jana foresaw the harm/risk/complication. He also foresaw that injury may be caused if the operation would be done by way of laparoscopy. In the instant case due to error/gross mistake & carelessness on the part of OP 1 upper biliary stricture bismuth type 3 has been caused which is clearly revealed from exhibit 16 (MRI report dated 03.01.2013). Exhibit-20 i.e., the report of USG of whole abdomen also speaks for huge intra peritoneal collection & post cholecystectomy CBD injury. These documents are clearly corroborating the fact of the case and gross negligence on the part of OP No. 1, Dr. Jana in the instant case.
We have perused the Exhibit – 37 (letter of Ld. Advocate Sampurna Ghosh). Ld. Advocate clearly stated in the said letter that OP No. 1, Dr. Jana took reasonable care upon the patient regarding his treatment. Dr. Jana also attended & treated the patient to the best of his skill & ability. So there is no negligence on the part of Dr. Jana. But in this respect, it is our view that in written version & written argument once Dr. Jana admitted the complainant’s anatomical problem & unusual position of gall bladder attached to CBD as well as chance of injury of bile duct, the said letter has lost its evidentiary value.
From the detailed explanation above it is our observation that the failure of use the better option or alternative method may amount to negligence.
In Post Graduated Institute Medical Education & Research, Chandigarh Vs. Jaspal Sing & Ors. (2009) 7 SCC 330, it has been held that transfusion of blood resulting in death of patient after 40 days is a case of medical negligence. Here the principle of res ipso loquitor was applied where there is no need of evidence of expert & decision of Fora always depends upon the facts only.
In M/S Spring Meadows Hospital case, the same view i.e., the principle of res ipso loquitor was adopted. In case of use of wrong drugs, wrong gas, wrong treatment wrong diagnosis etc. are the error or mistake on the part of the doctor which will not be pardoned. In the instant case the application of principle of res ipsa loquitur is correct & effective one. So there is no need of expert evidence. Now, we come into conclusion that there is a gross mistake, error, negligence on the part of OP No. 1, Dr. Jana & the complainant is entitled to get relief only against the OP No. 1, Dr. Jana as the OP No. 1 has totally failed to provide reasonable care, proper treatment & diagnosis to the complainant. There is no negligence or deficiency in service on the part of the other OPs. Be it mentioned here that due to best treatment & diagnosis by the OP Nos. 2 & 3, the complainant patient got back his valuable life. It is fact that the complainant at present has no capacity to work hard & has also no capacity to earn sufficient money as he is incapable to work in the field as a farmer. So he is entitled to get compensation against OP No. 1, Dr. Jana.
Complainant, in his complaint has prayed for 9,77,800/- towards treatment, test etc. & Rs. 10,00,000/- towards compensation. Complainant further stated in his complaint that he requested the OP No. 1, Dr. Jana to settle the matter by paying the amount of Rs. 4,00,000/-. But Dr. Jana did not agree with him & as per plaint case, he OP No. 1 was interested to settle the matter out of court by paying of Rs. 2,00,000/-.
Under such circumstances, ld. Forum has come into conclusion that the complainant’s need would be served if he gets minimum of Rs. 4,00,000/- from OP 1, Dr. Jana.
Point Nos. 2 & 3 are thus, decided. So the case succeeds.
Hence,
Ordered,
That the case CC/2013/111 be and the same is allowed on contest against the OP No. 1 with cost of Rs. 10,000/- and dismissed on contest against proforma OP No.4, without cost as well as dismissed exparte against proforma OP Nos. 2 & 3 without cost also.
That the OP No. 1, Dr. Jana is hereby directed to pay Rs. 4,90,000/- plus compensation of Rs. 1,00,000/- plus cost of Rs. 10,000/- i.e., total of Rs. 6,00,000/- to the complainant within 30 days from the date of order, i.d., interest of 10% p.a. shall be charged upon the awarded amount till full realization.
Let the copy of this order be supplied to the parties free of cost.
