Hon’ble Mr. Subhas Ch. Guin, Member.
The alleged medical negligence on the parts of the O.Ps has dragged the Complainant, before the Commission, who is a resident of Village & P.O. Kamakhyaguri, Dist- Alipurduar and housewife by profession. The Complainant, Smt. Jhuma Talukdar visited the chamber of Dr. Bikash Misra, B.S. Road, P.O. & Dist- Cooch Behar(O.P. No.1) with a complain of her abdominal pain on 17.06.16 who advised her for some tests on examination and admission in Jiban Deep Nursing Home, P.O. & Dist- Cooch Behar(O.P. No.2). Accordingly, she got admitted in O.P. No.2 Nursing Home on 20.06.16 under O.P. No.1 doctor. On 21.06.16 as per advice of the O.P. No.1, the USG of abdomen was done by Devi Diagnostic Centre. The said USG report revealed that the Gall Bladder was partially contracted, wall was thickened and multiple(3-5mm sized) calculi were present with impression chronic cholecystitis with cholelithiasis. The Complainant was told by the O.P. No.1 that she had stone in Gall bladder which required surgical procedure with a package of Rs.21,000/- for the same including charges of the O.P. No.2 nursing home. On payment of Rs.21,000/- the O.P. No.1 performed laparoscopic surgery on the Complainant on 23.06.16 so negligently that he did not trace out the Gall Bladder and subsequently explored the abdomen of the Complianant which caused injury to her common Bile Duct(CBD in short). Thereafter, the O.P. No.1 discharged her on 28.06.16 without repairing the injury of the CBD but he did not give money receipt for the said amount on demand with a plea that no money receipt was given for package money. In the discharge certificate dated 28.06.16 the O.P. No.1 mentioned names of two doctors namely Dr. T. Bhowmik and Dr. D.K. Khanra with whom he consulted for the said surgery but none of the said two doctors put their signatures or any endorsement in the said discharge certificate. Moreover, Dr. T. Bhowmik is not a specialised doctor in surgery and Dr. D.K. Khanra is a specialised doctor in anesthesia. So, the claim of the O.P. No.1 to have consultation with two doctors did not have a leg to stand on. On reaching home, the abdominal pain and distress of the Complainant was aggravated for which she again visited the chamber of the O.P. No.1 on 01.07.16 who advised her to get admitted in O.P. No.2 nursing home with diagnosis of acute gastritis and functional disorder(Mental disorder). The Complainant got admitted on 01.07.16 in O.P. No.2 nursing home and was discharged on 05.07.16 but no improvement in condition was noticed by her. In the discharge certificate, the O.P. No.1 mentioned the name of another doctor named Dr. T.K. Chanda with whom he consulted. Thereafter, the Complainant went to Subham Hospital, Cooch Behar where she was admitted on 07.07.16 under Dr.B. Das who advised her to get CT scan of whole abdomen done(plain and contrast). The CT scan report of Subham Hospital revealed that moderate free fluid was seen, located collections were seen in the right anterior perihapatic space and right subhepatic space and in the right paracolic gutter. The impression of CT scan was Ascites and intra abdominal collections. Some others tests were also done as per advice of Dr. B. Das who referred the Complainant to North Bengal Medical College, Siliguri on 10.07.16 after consulting all those reports. The Complainant paid Rs.33,000/- to Subham Hospital on discharge from the hospital. After taking advice from well wishers, the Complainant visited the chamber of Dr. Tarun Paul of Ritari Health Care Pvt. Ltd., Cooch Behar on the same day i.e. 10.07.16 without going to North Bengal Medical College, Siliguri for further treatment and got admitted in Ritari Health Care Pvt. Ltd., on 10.07.16 under Dr. Tarun Paul who made a preliminary diagnosis of post operative CBD injury with gross Billious peritonitis. Accordingly an urgent USG of whole abdomen was done as per advice of Dr. Paul by specialist Dr. P. Sanyal. The USG report of Dr. P. Sanyal confirmed the diagnosis of Dr. B.Das who told the Complainant that she needed further operation urgently for toileting the collection to save her life. So, he performed the operation for toileting of abdominal collection (Bilious) followed by T-Tube drainage of the injured CBD to prevent further collection of bile in the abdomen. On 16.07.16, the Complainant was discharged from the hospital with advice to take some medicines and to review after 5 days and was told by the Dr. T. Paul that her CBD injury would be repaired after 6 weeks as she was not in good health now. Again on 17.10.16 the Complainant was admitted in Ritari Health Care Pvt. Ltd under Dr. T. Paul who performed choledocho- Duodenostomy which was inevitable to overcome the complications arising out of CBD injury. The Complainant was discharged by Dr. T. Paul on 27.10.16 with advice to take some medicine and to review after 5 days. The Complainant paid a total sum of Rs.98,000/- to Ritari Health Care Pvt. Ltd including doctor’s fee, nursing home charge and charge of medicine. Thereafter the Complainant visited the chamber of Dr. T. Paul for review on 01.11.16 and 06.12.16 when the said doctor examined her and found her fit with no complain. She had been leading a peaceful life since then. So, the services rendered by Dr. T. Paul was very much satisfactory to the Complainant and she had no grievance or complain against Dr. T. Paul as such he had not been made party to this case. On the other hand, the O.P. No.1 Dr. Bikash Misra performed the operation in a negligence manner and with no skill causing CBD injury and discharged the patient without taking any measure for CBD injury for which the Complainant had to suffer mentally, physically and financially. To redress he grievances against the O.Ps, the Complainant filed this case before the Commission and prayed for a direction to the O.Ps to pay a total sum of Rs.2,62,000/- for loss incurred due to wrong and further treatment and for mental agony and physical sufferings and cost of litigation.
O.P. No.1 in his defence plea denied each and every allegations labelled against him. He asserted that he was a surgeon with reputaation having Master Degree in surgery and was practicing at Cooch Behar with unblemished carrier. The Complainant was admitted in O.P. No.2 nursing home on 20.06.16 with diagnosis of chronic cholecystitis with cholelithiasis by Dr. Basudev Haldar, M.D. (Radio Diagnosis) and pre-operative tests and check up were done by the O.P. No.1 for performing Laparoscopic Cholecystectomy and said procedure was performed on 23.06.16 by the O.P. No.1 after taking consent of the patient as well as husband of the patient.
During the said procedure the surgical team consisted of Dr. D.K. Khanra, M.D. (Anesthesia), Dr. T. Bhowmik, MBBS and the O.P. No.1, Dr. Bikash Misra who ventured for Laparoscopic Cholecystectomy but could not find the Gall bladder and they searched for abnormal sites of gall bladder also. They dissected those area near CBD and common Hepatic Duct (in short CHD) which was mentioned in the discharge certificate dated 28.06.16 of the O.P. No.1. After consultation with the above mentioned team they decided to open and see the abdomen to eliminate any visual error in laparoscopic surgery. The O.P. No.1 also advised in his discharge certificate for further getting the USG done from another centre to be confirmed whether there was any gall bladder or not. The Complainant further got admitted at O.P. No.2 nursing home on 01.07.16 with complain of abdominal pain and was under the treatment of Dr. Bikash Misra and Dr. T.K. Chanda who advised her to get an USG test done. Again an USG of the whole abdomen was done at Star Imaging Centre, Cooch Behar on 02.07.16 where the impression was non-visualisation of GB?(absent), Mildly prominent falciform ligament, No intra- abdominal collection of fluid and was normal, no CBD injury or other abnormalities was found. But the Complainant did not file this USG report before this Commission. Hence it proved that the Complainant did not file this case with clean hand. Thereafter, the Complainant was admitted in Shubham Hospital, Cooch Behar for pain in her abdomen on 07.07.2016 under Dr. B. Das where a CT scan was done on 08.07.2016 wherein impression was Ascites and intra abdominal collection and she was discharged on 10.07.2016 from the said Hospital. The O.P. No.1 also argued that the Complainant was operated at Ritari Nursing Home by Dr. T. Paul who diagnosed her as a post operative injury case and operated the same as mentioned in his discharge certificate but had the CBD injury been done by the O.P. No.1 at the operation then the patient would have collected 1 to 1.5 liter of bile per day from the first operation done on 23.06.2016 whereas the USG report done on 02.07.2016 showed no collection of fluid. The USG done by Dr. P. Sanyal reported significant intra peritoneal biliary collection and others were normal. The terms others were normal meant detected no CBD injury. The O.P. No.1 also stated that the Complainant made a story about the other two doctor member of the team who were not surgeon and so they were not made party to this case. Their experience in MJN Hospital for more than 10 years in the department of surgery was sufficient to eyewitness whether gallbladder was present or not. The Complainant filed a discharge certificate issued by Ritari Health Care Private Limited in which CBD injury was mentioned by Dr. T.Paul’s OT note but no such supportive and specific investigation was produced by the Complainant or by Dr. T. Paul. So, the direct and specific investigation of CBD injury at the time of operation done by the O.P. No.1 on 23.06.2016 was not found in any post operative investigation. So, the statement made by the Complainant in her petition that the O.P. No.1 Dr. Vikas Mishra performed the operation in negligent and unskilled manner which caused injury to the CBD of the Complainant and discharged her without taking any measure for the said CBD injury for which the Complainant had to suffer mentally, physically and financially was not admitted by the O.P. No.1. So, the Complainant is not entitled to any sort of compensation whatsoever and the complaint petition is liable to be dismissed.
The O.P. No.2 denied the case through written version and argument wherein they denied major allegation. The basic defence case of the O.P. No.2 is that they are a Nursing Home having better equipments and infrastructure within the district which was provided to the Complainant at the time of treatment. The O.P. No.2 followed the advice of the attending doctor and supply medicine to the Complainant as prescribed by the doctor i.e. O.P. No.1. The Complainant got admitted in their Nursing Home twice one from 20.06.2016 to 28.06.2016 and other from 01.07.2016 to 05.07.2016 wherein the Complainant was advised by the O.P. No.1 doctor to get an USG of upper abdomen done which the Complainant got it done at Star Imaging Centre, Cooch Behar on 02.07.2016 but she did not produce the said USG report before this Commission. So, she did not file this case with clean hand, against the O.P. No.2. The O.P. No.2 stated that the Complainant had suppressed the money receipt given by them. There was no medical negligence on the part of the O.P. No. 2 in treating the Complainant and they had not practiced any unfair trade with the Complainant. So, the Complainant is not entitled to any sort of compensation for the same which will lead the complaint petition to be dismissed.
The allegations by the Complainant and its counter by the O.Ps with documentary evidences filed by both parties require ascertainment of the following points for proper adjudication of this case.
Points for Consideration
- Whether the Complainant is a consumer under the C.P. Act?
- Whether there is any deficiency in service or medical negligence on the part of the O.PS?
- Whether the Complainant is entitled to get any relief as prayed for in her complaint petition?
Decisions with Reason
Point No.1.
The discussion on this point is required because both O.Ps claimed in the written version that the Complainant is not a consumer under the C.P. Act 2019. The Complainant Smt. Jhuma Talukdar proved some documents to discard their claim. She filed discharge certificate from Jeeban Deep Nursing Home(Annexure-1) with signature of Dr. Bikash Misra (O.P. No.1) wherein she was admitted from 20.06.16 to 28.06.16 under the said doctor and was treated by him. Thereafter she was admitted in the same nursing home (O.P. No.2) from 01.07.16 to 05.07.16 and was treated by same doctor(O.P. No.1) (Annexure-1).
It is also admitted fact by the O.Ps in their evidences that they treated the Complainant for the abovesaid period. So it is proved that the Complainant has availed of the service of both O.Ps for a consideration which has been paid by her. Therefore, the Complainant becomes a consumer under section7(ii) of C.P. Act 2019.
So, this point No.1 is answered in affirmative and decided in favour of the Complainant.
Point No.2.
The Complainant, Smt. Jhuma Talukdar was under the treatment of Dr. Bikas Misra(O.P. No.1) from 20.06.16 to 26.06.16(Annexure-1) when the O.P. No.1 doctor with a team of other two doctors performed laproscopic surgery for cholecystectomy as diagnosed in USG done on 23.06.16 in Devi Scan Centre, Cooch Behar(Annexure-2) by Dr. Basudev Haldar with impression of chronic cholecystitis with cholelithiasis. The O.P. No.1 doctor could not trace out the Gall Bladder in the abdomen of the Complainant although he is a reputed surgeon of the locality having master degree in surgery and took decision of opening the abdomen on consultation with other team members which also yielded the same result. Thereafter, the O.P. No.1 discharged the patient from the hospital with some medication and some advice which include to repeat an USG test from another centre. Again, the Complainant was admitted in the O.P. No.2 nursing under Dr. Bikas Misra on 01.07.16 when her abdominal pain and distress was aggravated on reaching home after discharge from the hospital first time. This time she was discharged from the hospital on 05.07.16 with diagnosis of AC. Gastritis and functional disorder as mentioned in the discharge certificate(Annexure-3). The O.P. No.1 doctor advised her some medication and to consult a phychiatrist and gastro enterologist. During her stay in the hospital under O.P. No.2, the Complainant had undergone an USG test at Star Imaging Centre, Cooch Behar on 02.07.16 the Original copy of the same was filed by the O.P. No.1 before the Commission. If the USG test of the Complainant was done at centre mentioned above, the original copy would have been kept by the Complainant herself. As the same was filed by the O.P. No.1, there might be some foul play in it. So, the reliance cannot be placed on the same.
On the other hand, we can rely on other two test report of the Complainant, one is USG report of Devi Diagnostic Centre, Cooch Behar(Annexure-2) and other is scan report of Subham Scan, Cooch Behar(Annexure-5) filed by the Complainant to substantiate her claim of deficiency in service of the O.Ps.
The USG report of Devi Scan Centre dated 21.06.16 reveals that multiple calculi were present in Gall Bladder lumen having impression chronic cholecystitis with cholelithiasis. On the basis of that USG report the O.P. No.1 attempted to operate the Gall Bladder stone on 23.06.16 but could not succeed.
On the contrary the scan report of whole abdomen dated 08.07.16 of Subham Scan reveals(Annexure-5) & (Annexure-6) that the Gall Bladder is operated, moderate fluid is seen, loculated collections are seen in the right anterior periticpatic space, in the subhepatic space and in the right paracolic gutter with impression Ascites and intra-abdominal collections.
This test was advised by Dr. B.Das at Subham Hospital & Diagnostic Centre Pvt. Ltd., Cooch Behar who later diagnosed the patient with agenesis of Gall Bladder and post laparatomy perihepatic collection in his discharge certificate dated 10.07.16(Annexure-4). Therefore, the diagnosis indicates the collection of fluid in the abdomen which in caused due to injury to CBD during operation done by the O.P. No.1 on 23.06.16. Being referred to North Bengal Medical College, Siliguri by Dr. B. Das on 10.07.16 the Complainant visited the chamber of Dr. T. Paul, MS, of Ritari Health Care Pvt Ltd., for better management without going there. The Complainant had undergone an USG test on 10.07.16 by the advice of Dr. T.Paul which also revealed significant billious intraperitoneal collections(Annexure-8) Dr. T.Paul treated the Complainant with diagnosis post operative CBD injury following cholecystectomy done elsewhere with gross billious peritonitis by through tolileting and T-tube drainage of the collection which was mentioned in the discharge certificate dated 16.07.16(Annexure-12). Again, the Complainant was admitted in Ritari Health Care Pvt. Ltd., on 17.10.16 under Dr. T. Paul wherein choledocho- Dnodcnostomy was done with diagnosis CBD stricture following CBD injury during clolecystectomy and discharged on 27.10.16(Annexure-17) following which the Complainant is leading a healthy life. It is evident that CT scan report of whole abdomen of the Complainant dated 08.07.16(Annexure-5 & 6) and USG report of whole abdomen on 10.07.16(Annexure-8) show presence of fluid in the abdomen which are done after the operation whereas USG report of whole abdomen dated 21.06.16 which is prior to operation shows no such fluid in the abdomen which is indication of the collection of fluid after operation which is due to CBD injury during laparoscopic surgery. Generally laparoscopic surgery involves making a handful of small incisions and then inserting small surgical equipment and a camera inside the abdomen. With laparospic surgery, the surgeon is not able to directly see the area of operation but instead is able to view things on a screen after the camera is inserted internally. One of the risk is that an unintended structure gets injured, punctured or lacerated.
In the subject case, the O.P. No.1 doctor being a reputed surgeon and well aware of the risk of laparoscopic surgery did not care for any injury/ puncture or laceration inside the abdomen which might happen after the procedure especially when the Complainant visited his chamber with tremendous abdomen pain and distress. He diagnosed her with functional disorder and mental disorder and advised her to see a gastroenterologist and psychiatrist. On the contrary, doctors treating the Complainants after the O.P. No.1 doctor diagnosed her with CBD injury with peritoneal biliary collection. One of the treating doctor who is a surgeon had undone surgery for toileting the collection and repairing the CBD injury after ward which enabled the Complainant to lead a normal life. This act of the O.P. No.1 tantamounts to deficiency in service and medical negligence.
Ld. Advocate for the O.P. No.1 filed a case law of Nationl Consumer Disputes Redressal Commission, New Delhi reported in (2021) CJ455(NC), Eldo David Vs Dr. Denny P. Kuttikkat and other wherein O.P. No.1 doctor was held liable for negligence and deficiency in service partly by the District Commission which was later set aside by the State Commission with some findings in favour of the O.P. No.1 doctor. The Hon’ble National Commission also upheld the decision of the Hon’ble State Commission on filing the revision petition by aggrieved Complainant with some observation that after laparoscopic appendicitis the infection or abscess in the peritoneal cavity was not due to any negligence or any short coming during the procedure and in the given facts and evidence on record it is difficult to establish medical negligence/ deficiency on the OP hospital/doctor. So the revision is dismissed. Here, in the case stated above, the intra abdominal abscess was found after laparoscopic appendicitis which was detected by the doctor in other hospital. So, neither the O.P. No.1 doctor nor the hospital(O.P. No.2) was held liable for second time operation of the patient after laparoscopic appendicitis. But in the subject case there was no infection or abscess which was detected by the other doctor. Other doctors detected the billiary collection which is due to CBD injury done during laparoscopic surgery by the O.P. No.1 doctor. Therefore, this case law does not bear on the present case.
It is also admitted by the O.P. No.2 that the Complainant was admitted in his nursing home from 20.06.16 to 28.06.16 and again from 01.07.16 to 05.07.16. During her stay at the nursing home, the O.P. No.2 followed the advice of the attending doctor and supplied the medicine prescribed by the doctor to the Complainant with great care. The diagnosis of the patient and test and medicine prescribed by the attending doctor cannot be controlled by the nursing home. There was no evidence filed by the Complainant to prove deficiency in service against the O.P. No.2. Therefore, allegation of deficiency in service against the O.P. No.2 is not established.
On the basis of some intricate questions raised by the Complainant relating to medical jurisprudence which demands for an opinion of medical expert, opinion was sought from board of expert doctors of MJN Hospital, Cooch Behar by the Commission. The main three points as mentioned in the medical board report are appended below:
- Injury to CBD can be fatal, CBD can be healed up with proper treatment.
- Injury to CBD during operation does not necessarily cause disappear of Gall Bladder.
- Precautions like proper pre-operative investigation and intra-operative identification of surrounding anatomy needed.
Considering all aspect, the Commission is of the view that there is deficiency in service/ medical negligence on the part of the O.P. No.1 only. Therefore, this point is answered in affirmative and decided in favour of the Complainant.
Point No.3.
The above point is decided in favour of the Complainant as such the Complainant is entitled to get relief for her suffering physically, mentally and financially. Therefore, this point is also answered in affirmative and decided in favour of the Complainant.
In the result, the instant case succeeds on contest.
Hence, it is
Ordered
That the instant case No.CC/31/2017 be and the same is allowed on contest with cost against O.P. No.1 and dismissed against O.P. No.2.
Therefore, the O.P. No.1 is directed to pay Rs.1,52,000/- to the Complainant towards medical expenses, Rs.50,000/- for mental pain, agony and physical sufferance and Rs.10,000/- for cost of litigation. The O.P. No.1 is further directed to pay a total sum of Rs.2,12,000/- to the Complainant within 30 (thirty) days from the date of this order failing which the awarded sum shall carry an interest @ 6% per annum from this date to till its realisation.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
