Order No. 37 Dt. 22.08.2017
This is a case u/s. 12 of the C.P. Act, 1986.
The complaint case in a nutshell is that she is housewife and permanent inhabitant of Gangarampur Dakshin Dinajpur. She had pain in her abdomen and consulted Dr. R.S. Giri and on his advice she got USG from the Centre of Gangarampur on 28/03/2014. As per report of the USG the right ovary was not visualized separately. A fairly large well defined cystic SOL with multiple septations was seen in right adnexa. For better treatment and expert opinion the complainant consulted Dr. A. Agarwal (O.P. No.1). On 07/04/2014 at Malda Fertility Centre and after consulting all the test report and USG Report, Dr. Agarwal advised the complainant for operation with assurance that he would be able to operate complainant properly. Accordingly, the complainant got admission at Malda Medical Centre under the care of Dr. Agarwal on 11/04/2014.
The O.P. did not conduct fresh USG or CITISCAN to ascertain the exact condition of ovary. In spite of that the doctors operated for deeper and wider and it was due to the reason that the O.Ps did not find any cystic SOL in right ovary after opening abdomen. At the time of operation after opening the ovary of abdomen while the O.P. No.1 did not find any cystic SOL. He called Dr. Samar Das (O.P.-2) and both of them operated for wide and deeper to the already opened area and at last finding no other way they stitched the operated area without treating the cyst just to extract money from the complainant. Somehow the life of the complainant was saved but still now she is lying under bed ridden. She was kept in the said medical home till 18/04/2014 and complained of severe abdominal pain before discharge from the hospital a CITISCAN of whole abdomen was done by the O.P. Nos. 1 and 2 at the nursing home of O.P. No.3. The CITISCAN report revealed that there was actually a large well defined, encapsulated retroperitoneal cystic SOL in right lumber region.
The complainant’s specific case is that the O.Ps of this case was negligent in giving treatment firstly not conducting the fresh USG or CITISCAN before the operation. The complainant have not received any relief and service from the O.Ps but got only physical injury and mental pain and harassment. The O.Ps not only cause injury or mental pain and harassment to the complainant but also slept from performing their duties in rendering proper service. The complainant has lost her ability to work like normal person and he is still bearing the expenditure for the unskillful treatment of the O.Ps and accordingly, the complainant prays for compensation to the tune of Rs.20,000,00/-.
O.P. Nos. 1,2, & 3 has defened the case by submitting written version from their part and denied all the material allegations leveled against them.
The specific case of the O.Ps is that after incision it was noticed that it was not a case of ovarian tumor but a case of retroperitoneal mass ( SOL) and accordingly, the O.P. No.1 being a Gynecologist, called O.P. No.2 the general Surgeon for consultation and they deemed fit to know whether said RPM (SOL), whether it was malignant or the benign. Accordingly, through a sirinj the contents was aspirated from the mass and since it was a time consuming matter to have a report from the pathologist, they closed the incision and asked the patient parties to wait for the pathologist report and it was assured them that it was detected a benign tumor then the same to be extracted by way of operation and the patient and her relatives was remained in contact with the O.P. No. 1 for 2-3 months and thereafter, at the instance of some greedy persons they have filed this false case to squeeze money. The complainant Piu Mohanta and Subhra Mohanta and Probir Sarkar has been examined and they are cross-examined by the O.Ps. On the part of the O.Ps Dr. A Agarwal and Dr. Samar Das and Dr. Laxmi Kanta Dutta were examined and bunch of documents has been submitted at the end of both parties and marked exhibited documents.
On the basis of pleadings of both parties the following points are fixed for determination:-
- Does the complaint come within the purview of Sec.12 of the C.P. Act, 1986 ?
- Was there any medical negligence on the part of the O.Ps
- Was there any deficiency of service towards the complainant on the part of O.P. Nos. 1, 2 and 3?
- Is the complainant entitled to get the reliefs as prayed for?
::DECISION WITH REASONS::
All the points are taken up togetherly for discussion for the sake of convenience and brevity.
Admittedly, the complainant at her own sweet will undergone a treatment for her abdominal pain within the care of Dr. A Agarwal, O.P. -1 on the basis of sonography test for the cyst of her abdomen called SOL and doctor on the basis of a USG report which was done at Gangarampur on 28/03/2014 and the USG was advised to her by Dr. Rajshekhar Giri on 13/03/2014. The complainant visited to Dr. Agarwal on 07/04/2014 and 11/04/14 and she was suggested by Dr. Agarwal to have an operation at Malda Medical Centre on 11/04/2014 and on the same day the complainant was operated a incision of her abdomen was held and the seizure was stitched on the same day and on 18/04/14 she was discharged from the said nursing home. Here necessary charges was recovered from the patient party by opposite parties jointly for rendering medical services towards the complainant and it was conduct of service rendered on payment of charges and as such the said service which fallen within the provisions of C.P. Act 1986 and the complainant is a bona fide consumer. So the case is well maintainable in the Fora and now the Fora has a jurisdiction to determine whether such service falls within the purview of deficiency of service due to medical negligence on the part of the O.Ps.
In a case of medical negligence it is a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Simply lack of care or an error of judgment or an accident is not proof of negligence on part of a medical profession. To prove medical negligence and deficiency of service beside oral and documentary evidences the complainant side based her argument citing the judicial decisions as follows:-
- 2015 (3) CPR 496 (NC)
- 2015 (1) CPR 314 (NC)
- 2013(2) CPR 40(TN)
- 2013 (1)CPR 99 (HP)
- 2013(3)CPR 367(NC).
To counter the rulings cited by the rulings the O.Ps cited separate rulings as follows:-
- 2010 CPJ 29(SC)
- 2005 (3) CPR 70 (SC)
Jacob Mathew Vs. State of Punjab
- 2010 CPJ SC 1
- 1996(2)CPJ 368
- 1996 CCT (2)571
- 1992 (2)CPJ 764 (NC)
After going through all the judicial decisions referred in this case the Fora confirms that in every case of medical negligence the burden of proofs exclusively lies upon the complainant and they have to stand on their own feet and not to take benefit of any lacuna on the part of the O.P.
Generally, doctors should not be found guilty of medical negligence as long as they performed their duties and exercises ordinary degree of professional skill and competence.
The O.P. in this case heavily stand their case over the evidence of O.P.W-3 the medical expert where the O.P.W.-3 in his expert opinion on oath categorically stated that the patient came with an USG report with impression right abdominal complex cystic SOL and accordingly the doctor has rightly gone for operation of the SOL and there was no latches on the part of Dr. Agarwala. On the contrary, there was no medical evidence on the part of the complainant to prove the medical negligence on the part of O.P. Nos. 1 and 2.
After going through all the necessary documents and after appreciating the evidences of both sides it is clearly detected that all the necessary treatments of the complainant was based upon the sole USG report of the complainant where right ovary was not visualized separately. A fairly much well defined cystic SOL with multiple septations was seen in right adnexa. (Ext.-8) (9 pages).
Dr. Rajshekhar Giri a medicine expert advised the patient to have a treatment by any gynecologist. Thereafter, the complainant came to O.P. No.1 being a recognized gynecologist who also on the basis of said USG report confirmed that the patient was suffering with a fairly much well defined cystic with multiple septations in right abdomen. Dr. Agarwal O.P. No.1 did not advise the patient to have any further medical investigation test like blood test CITISCAN or further USG. O.P. No.1 then and then took a decision to go an operation of the abdomen of the complainant and to remove the said SOL immediately on 11/04/2014 at Malda Nursing Home. This promptness on the part of Dr. Agarwal O.P.1 clearly indicates that he was in a haste to operate the patient without fully confirmed about the exact disorder. He incise the abdomen and when he came to know about his fault he took the help of Dr. Samar Das. Dr. Samar Das had nothing to do at that time considering the consequences of the fault of O.P.1, then and then stitched the said incision. From the evidence and medical documents produced on the part of the complainant has amply proved the medical negligence and deficiency of service on the part of the O.P. No.1, O.P. No.2 had come into the picture when the game was over and he had nothing to do in this playground. O.P. No.3 is the nursing home and O.P. No.1 has used the facilities of the said nursing home in exchange of money and nursing home had nothing to do in this matter. The O.P. No.1 before going into operation did not conduct any fresh USG or CITISCAN to ascertain the exact condition of ovary. It was due to that reason the O.P. No.1 did not find any systic SOL in right ovary after opening the abdomen. So the conduct of O.P. clearly establishes the fact he has unnecessarily opened the abdomen of the patient causing severe blood loss unnecessarily and could not provide any relief to the patient for which the service of O.P.W.-1 was sought for by the patient party.Even after discharge from the hospital after such unsuccessful operation on the part of O.P. No.1 no proper advice or medical treatment was given to the patient and in consequence the pain and suffering of the patient gradually increased day by day which compelled her to be bed ridden for months together. Therefore, in our conscious opinion the O.P. No.1 is exclusively liable for the damage he has done to the patient
Piu Mohanta.
So O.P.No.1, exclusively liable to the consequences of his medical negligence and deficiency of service towards the complainant. In merit of the complainant’s case there was so many loopwholes but in spite of that it has apparently indicated the fault of the O.P. No.1 and O.P. No. 1 could not absolve himself for his gross and sheer negligence.
The complainant has suffered severely for such gross negligence on the part of the medical expert but her claim amount of compensation is to much exazarated and excessive one. The O.P. No. 1 later of this surgery has show his medical skill and referred some diagnostic examination of the patient which shows that he came to his senses. Therefore, the amount of compensation should be confined within 200000/- and that shall have to be paid by O.P. No.1. For mental harassment and litigation cost and sufferings another Rs.10000/- should be awarded beside the compensation amount mentioned above. Thus all the points are settled in this way.
The compliant case succeeds.
Proper fee paid.
Hence ordered
that the instant complaint case u/s 12 filed by Piu Mohanta is hereby allowed on contest with cost against all the contesting O.Ps.
The O.P. No.1 Dr. Agarwala is hereby asked to pay Rs. 210000/- to the Complainant Piu Mohanta within a month either in cash or cheque failing which interest @ 6% p.a. will be imposed upon the awarded money after the stipulated period and the petitioner will be at liberty to put the decree in execution.
A copy of the order be given to both the parties free of cost.
