Date of filing : 07.02.2018

Judgment : Dt.26.3.2019

Mrs. Sashi Kala Basu, Hon’ble President.

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Maya Roy under section 12 of C.P.Act aginst the opposite parties namely (1) Dr. Ashim Chakraborthy and Principal Officer, N.G.Nursing Home alleging deficiency in rendering service on their part.

            Complainant’s case in short is that on 5.4.2017 due to pain in her lower abdomen, she was taken to M.R.Bangur Hospital and after she was admitted, on clinical examination, it was detected that the pain was due to gallbladder stone. However, she was discharged on 8.4.2017.  Thereafter again she had pain and was admitted at M.R.Bangur Hospital and after three days, she was discharged. She was, thereafter, asked to go to S. S. K. M. Hospital but at S. S. K. M. Hospital she was admitted on 2.5.2017 and discharged on 8.5.2017. On 11.5.2017 her condition became worst and so was taken to the chamber of OP No.1 who on examining the relevant documents, insisted for her admission at O.P. Nursing Home. So, she was admitted at OP No.2. On 12.5.2017 relevant clinical examination of the Complainant was done under the advice of OP No.1 and on 13.5.2017, Complainant was operated by the OP No.1 along with his teams in order to remove the  gallbladder stone at OP Nursing Home. Complainant was discharged on 17.5.2017. But, again on 21.5.2017 Complainant had unbearable pain along with profuse bleeding. So, she was brought to the chamber of OP No.1 who prescribed some medicines but on 25.5.2017 due to pain when Complainant was taken to OP No.1 he advised doing T. Tube Cholongiogram at ‘Medwin Pathological Centre’ and advised her to contact one Mr. Bera. At Medwin Pathological Centre, such test was done but physical condition of the Complainant was unchanged and was deteriorating.

            Due to unbearable pain, Complainant was again taken to the chamber of OP No.1 who then intentionally referred her to o ne Dr. Dipankar Sarkar who advised for some clinical examinations including ERCP. On 2.6.2017 ERCP was done and from the ERCP reports, it transpired that there was a CBD Stone but said Doctor Sarkar could not extract the said CBD stone as it was too large and he opined that the same would have to be done after three months because such major open surgery could not be done on account of open surgery done by OP No.1  earlier. Ultimately she had to go to S.S. K. M. Hospital on 14.8.2017 and was examined by the Dr. D. K. Sarkar who advised for some examinations. After doing such examination, Complainant was admitted at S. S. K. M. on 21.8.2017 and was operated by said Doctor on 25.8.2017 wherein said gallbladder stone was extracted and thereafter she was discharged on 11.9.2017. So, it is evident that OP No.1 with some dishonest intention did not extract the said gallbladder stone when he had conducted the operation. On the contrary by induction of T. Tube Drainage system, OP No.1 has tried to shield his such illegal acts. So, due to the rash and negligent act of the Opposite Parties, Complainant has suffered mentally, physically and financially. So, as there has been deficiency in service, present complaint has been filed for directing OPs to pay Rs.12,00,000/- towards mental and physical sufferings and Rs.6,00,000/- for deficiency in service.

            Complainant has annexed with the complaint petition, prescription issued by the Doctor OP No.1 on 11.5.2017, discharge certificate dt.17.5.2017 issued by OP No.2, final bill and some money receipts, another prescription dt.21.5.2017 and 25.5.2017, prescription of 30.5.2017 by Dr. Dipankar Sarkar, report of ERCP of IRIS Hospital, discharge certificate dt.11.9.2017 of S.S.K.M., medical documents by other doctors of hospitals prior to operation by OP No.1 and the copy of legal notice and reply sent by OP.

            Both the opposite parties have contested the complaint by filing separate written versions denying and disputing the allegations made against them.

            OP No.2 has contended that the case is bad for non-joinder of M. R. Bangur Hospital, Calcutta Medical College and S. S. K. M. Hospital as well as Dr. Dipankar Sarkar. OP No.2 had extended it best possible services to the Complainant in order to get her cured completely and there has not been any collusion and connivance between the OP No.1 and OP No.2 as alleged by the Complainant. There has not been any deficiency in service and the present complaiant is filed only for the purpose of extracting money. Thus the OP No.2 has prayed for dismissal of the case.

            OP No.1 has contended that on 11.5.2017 when the Complainant was brought to the chamber of OP No.1, her condition was so acute that being a doctor he advised her admission on perusal of the clinical reports of Govt. Hospitals and other private institutions. He suggested OP No.2  Nursing Home as same is well equipped for any type of emergency medical treatment, operation and post operative care including ICU. Complainant was operated on 13.5.2017 with his team of specialist very carefully and operation was done successfully and after satisfaction in all aspect she was discharged on 17.5.2017. At the time of operation, stone ascertained by Pathological test was extracted very carefully without disturbing the other organ there and found no remaining portion of stone existed at that time. Complainant or any other person related to her, never divulged any grievance against the OP Doctor before her discharge from the said nursing home. So, OP No.1 has not committed any deficiency in service and so he has prayed for dismissal of the complaint against him.

            During the course of evidence, both the parties have adduced their respective evidence by filing affidavit-in-chief followed by filing of questionnaire and reply thereto.

            All the parties have submitted brief notes of arguments supporting their case as stated in the petition of complaint and in  written versions filed respectively.

            OP No.2 has also relied upon decision of Hon’ble Apex Court in Civil Appeal 3971 of 2011 and also order passed by Hon’ble National commission in Consumer Case No.656 of 2015.

            So, following points are required to be determined :-

            (1)  Whether Complaint is maintainable in its present form?

(2) Whether there has been deficiency in rendering service on the part of the OPs?

(3) Whether the Complainant is entitled for the relief as prayed for?

Decision with reasons

Point No.1

It has been contended by both the OPs that this case is bad for non-joinder of necessary parties. According to opposite parties, M. R Bangur Hospital, Calcutta Medical College, S. S. K. M. and Dr. Dipankar Sarkar are necessary parties in this case but they have not been made parties.

            On perusal of the record, it appears that Complainant was examined and treated in the above mentioned Hospital and Doctor, and it was detected that Complainant was suffering from gallbladder stones but it is specific claim of the Complainant that operation to extract the gallbladder stone was done by OP No.1 at OP No.2 Nursing Home but  in spite of the operation OP No.1 did not extract the stones, which was ultimately removed by an operation at S. S. K. M. Hospital by Dr. D. K. Sarkar. So, apparently complainant has no grievance against others and as such they could neither be necessary party or a proper party. According to her there has been deficiency in service on the part of OP No.1 the Doctor who operated the gallbladder stone because he was negligent and he did so in collusion with OP No.2, the Nursing Home where the operation was conducted.

The decision cited by OP No.2 of Hon’ble National commission in CC 656 of 2015 speaks of mis-joinder of parties as in that case, claim of the complainant No.2 ;to 14 fell beyond the pecuniary jurisdiction of the Hon’ble National commission and only claim of Complainant  No.1 was maintainable. So, the case was dismissed for misjoinder of parties, giving Complainant No.1 to file fresh complaint. Said case law has no application in the given facts and circumstances of this case. In such view of the matter, we find that the present complaint is maintainable in its present form.

The Point No.1 is thus answered accordingly.

Point No.2 & 3

Both the points are taken up together for a comprehensive discussion. Admittedly, Complainant was examined at first at M. R. Bangur Hospital, Kolkata Medical College and Hospital and at S. S. K. M. Hospital between the period from 5.4.2017 to 8.5.2017 and during  this period it was detected that Complainant was suffering from acute abdominal pain due to gallbladder stone. It is also an admitted fact that on 11.5.2017 she was taken to the chamber of OP No.1 as her pain became worst and on perusal of the reports of the above mentioned Govt. Hospital, OP No.1 asked Complainant to get admitted immediately at N G. Nursing Home/OP No.2. So, she was admitted and on 12.5.2017 relevant clinical examination was done and thereafter on 13.5.2017 under the supervision of OP No.1, operation was done in order to remove gallbladder stone. She was discharged on 17.5.2017.

Bone of contention is that according to Complainant OP No.1 failed to extract the gallbladder stone and that caused the Complainant to go through severe pain and bleeding.

Since this case is entirely based on documents, it would be appropriate to highlight the relevant medical documents filed by the Complainant that as per discharge summary issued by OP No.2 operation was done on 13.5.2017 ‘Right subcostal incision cholecystectomy and Choledocholithotamy. T. Tube drainage’.

OP No.2 has also filed the documents wherein it is also stated that “Open Cholecystectomy”. It indicates that gallbladder stone was removed through an incision on the right side.

As per discharge certificate Complainant was discharged on 17.5.2017. Her stitches were removed on 21.5.2017.

Three of the Medical documents  are relevant for determination of the dispute of negligence.

Firstly, prescription by OP No.1 dt.11.5.2017, discharge summary dt.17.5.2017, prescription dt.21.5.2017 and recording of  “T.Tube Cholangiogram” by OP No.1 on 25.5.2017. Complainant was sent to Mr. Beera at Medwin Medical Service.

Secondly : Prescription/document dt.30.6.2017 by Dr. Dipankar Sarkar who recorded that the patient was referred by OP No.1 and problem mentioned ‘T. Tube Drainage’. He advised admission and the report of ERCP specifies that as per Doctor Dipankar Sarkar – “After billiary papillotomy, attempts made by ballon to extract the CBD stone and could not be extracted as the stone was too large. A 10F, 5cm stent deployed across the stone”.

Thirdly, Discharge certificate/summary of S. S. K. M. Hospital dt.11.9.2017. It reads type of surgery “Removal of stone and stent” “CBD exploration F/b T. Tube placement done”. It is also recorded under the head of clinical notes that “F/U/C of cholecyspatomy Choledochalithotomy done on 13.5.2017 outside at Nursing Home. Clearance not achieved. ERCP stenting done outside. Re-exploration of CBD done at S. S. K. M. Hospital on 25.8.2017. Clearance achieved”.

Complainant’s specific claim is that OP No.1 should have extracted the gallbladder stone but did not extract is evident from the subsequent document and due to his said rash and negligent act she has suffered enough pain and there has been bleeding. It is claimed that she also has suffered financially.

OP No.1 in his written version in Para 8 has stated “It is pertinent to mention here that at the time of operation OP No.1 with his team extracted the stone which was ascertained by pathological test for the whole quantum of the stone was extracted very carefully without disturbing the other organ there and also found after operation no remaining portion of the stone existed at that time”.

So, as per above mentioned statement of OP No.1, he had extracted or removed all the stones and there was no stone left. But, it is somehow strange that he remained silent about the report of Dr. Dipankar Sarkar to whom patient was referred by him (OP No.1). Copy of all the documents relied upon by the Complainant was served upon OPs but neither OP No.1 nor OP No.2 stated anything on those reports.

I have already highlighted above the ERCP Report by doctor Dipankar Sarkar that he found CBD stone but could not extract it as it was too large. Complainant has also claimed that Dr. Dipankar Sarkar told her that it could only be removed after three months because it was too large and physical condition of the complainant would not permit such open surgery on account of open surgery done by the OP No.1.

It has to be borne in min d that the OP No.1 had conducted the surgery on 13.5.2017 and doctor Dipankar Sarkar’s report is dt.2.6.2017. So, it is not that there has been huge gap of time. On the contrary, within 15 days of operation by OP No.1 it was detected that a large stone still existed. In our humble view, it negates the claim of OP No.1 that there was no stone left or existed after surgery by him.

The document of S. S. K. M. Hospital dt.17.9.2017 further strengthens the said view about existence of gallbladder stone, as it is categorically stated that “Operation done on 13.5.2017 outside but clearance not achieved”. It is only after the surgery on 25.8.2017 at S.S.K.M. Hospital said stone was removed and clearance was achieved. So, the claim of the Complainant about negligence on the part of OP No.1 cannot be ruled out. In this context case of V. Kishan Rao VS Nikhil Super Speciality Hospital and Another reported in (2010)  5 S.C.R. may be cited wherein it has been held by the Hon’ble Apex Court that “Expert evidence is not required in all Medical Negligence Cases. Expert evidence is necessary when Fora comes to the conclusion that the case is complicated or such that it cannot be resolved without assistance of expert opinion. Fora cannot follow mechinical or straight jacket approach. Each case has to be judged on its own facts.”

In view of the legal proposition, in the above mentioned Division Bench Decision of Hon’ble  Apex Court, the argument by OP that no expert opinion filed in this case, will be of no consequence.

The case law in Civil Appeal No.3971 of 2011 cited by OP No.2 will not be applicable in the given facts and circumstances of this case as in that case, Complainant’s specific claim was that she had not given her consent to the doctor to perform conventional surgery. She claimed that she had given her express consent in writing to perform only ‘laparoscopy surgery’ but the Doctor instead of performing ‘laparoscopy surgery’ proceeded to perform conventional surgery and in that process he removed her gallbladder and for such reasons a clear case of negligence on the part of the doctor was made out entitling the Complainant to claim compensation.

Further in the said civil appeal, surgery in question was conducted on 8.8.1996 whereas the second surgery by which the removal of stone which had slipped in CBD was done in June, 1997 after 11 months. It has been observed by the Hon’ble Apex Court in para 14 that “respondent No.1 failed to prove with the aid of any medical evidence that the stones which were noticed in the second surgery performed after 11 months, were the same stones which the Appellant failed to remove from the gallbladder”.

In this case in hand, it is already highlighted above that within 15 days of operation in question, Doctor to whom Complainant was referred to by OP No.1, found existence of a large stone but OP No.1 remained silent about the said report of Doctor Dipankar Sarkar who in his report has stated categorically that there was a CBD stone but could not extract it as it was too large and the physical condition of the Complainant would not permit an open surgery on account of open surgery done by OP No.1.

Even in the case of Dr. s. Jhunjhunwala VS Mrs. Ddhanwanti Kumar & Anr i.e. Civil Appeal 3971 of 2011, at para 22 it has been held that “A professional may be held liable for negligence on one of two findings; either he was not possessed of the requisite skill which he professed to have possessed, or , he did not exercise with reasonable competence in the given case, the skill which he did  possess”.

In this case, it is evident that Doctor OP No.1 did not exercise with reasonable competence, the skill which he did possess and thus liable to pay the compensation. However, only allegation made against OP No.2 is that it had colluded with OP No1 but there is no such document or material in support of such claim of the Complainant regarding collusion between OP No.1 and OP No.2. Thus the complaint is liable to be allowed against OP No.1 and dismissed against OP No.2.

In the given facts and situation of this case, an amount of Rs.2,00,000/- in total would be justified along with the litigation cost of Rs.10,000/-.

These points are thus answered accordingly.

            Hence

                               ordered

            CC/56/2018 is allowed on contest against OP No.1 and dismissed against OP No.2. OP No.1 is directed to pay Rs.2,00,000/- as compensation to the Complainant within two months from the date of this order. OP No.1 is further directed to pay Rs.10,000/- as litigation cost within the aforesaid period of two months in default the entire sum shall carry interest at the rate of 10% p.a. till realization.