SMT. BANDANA ROY, PRESIDENT

            In short, complaint case is that on 29.07.2016 wife of the complainant felt uneasy due to pain at her abdomen. At that time he called the nearest local RMP Gopal Das  for treatment of his  wife, but Gopal Das did not start any treatment nor did he gave any medicine . However, he suggested for USG of whole abdomen of wife of the complainant. On 31.07.2016 USG was done at Nimtala Tamluk  and as  per report of the Radiologist,  Bhabani Bhattacharya., it was reported that Gallbladder is small, thick-walled, contracted and contains multiple calculi inside and other ingredients are normal. After that report the complainant took her wife to Dr. Aloke Shee on 31.07.2016 who treated the patient and advised surgery of gallbladder within one month. In the meantime, the OP No.2 came to their house for collection of money on other heads and hearing the problem he asked the complainant to get her wife admitted at his nursing home. The OP no. 2 also promised to give the treatment free of cost by dint of RSBY card of the patient. On 07.08.2016 wife of the complainant was admitted in the nursing home of the OP no. 2 under Dr. Dibyedu Halder. On 08.08.2016 said doctor completed operation of wife of the complainant  and she was discharged  on 14.08.2016  and  the complainant paid Rs. 9,500/-  as per their bill.  On the same day, returning home wife of the complainant again felt pain in her abdomen and it was reported to the OP No. 2 over telephone.  Till 16.08.2016 the same medicine continued as per advise of OP No.2 but the pain did not subside. Lastly again the complainant made contact with RMP Gopal Das who suggested for another USG test of whole abdomen. Thereafter the complainant came to the nursing home of the OP no. 2 again on 19.08.2016 under OP No.1  who prescribed some medicine. But the pain was not relieved, for which on 24.08.2016 the complainant got her wife admitted at RRB Memorial Hospital at Tamluk Salgechia and made treatment under Dr. T. Banerjee who prescribed medicines.  On 25.08.2016  one Dr. D. Roy of RRB Memorial Hospital again advised for USG  and other tests. The complainant followed it and on 30.08.2016 he made the said tests. On 31.08.2016 Dr T. Banerjee suggested for microsurgery of the ERCP urgently. On 05.09.2016 his wife was discharged after operation but she was referred to SSKM Hospital at Kolkata for better treatment. She is still under treatment.

            According to the complainant his harassment with regard to treatment and current physical condition of his wife is due to the negligent treatment and operation by the OPs and so, the complainant has filed this case against the OPs claiming the reliefs as per complaint petition.

            The Ops appeared and contested the case by filing two written versions, one by the OP no. 1 and another by the OP no. 2 the nursing Home concerned. Both of them prayed for dismissal of the complaint on different grounds.

            It is the specific averment of the OP no1 that  wife of the complainant was  admitted in the Nursing Home of OP no. 2 under his treatment.  On 19.08.16 she came to him for further treatment but  the doctor did not found any complication  and he prescribed the same medicine. She was operated by the OP no.1 on 08.08.16 after due clinical examination, and supporting UGS report done on 31.07.2016.  All the risk of the operation was explained to the patient party and they gave their consent. Post operative condition of the patient was uneventful . On 14,.08.2016 the patient had been discharged with oral medications. On 19.08.17 she came to the OP no1 who found nothing discomfortable. All her sutures were removed and she was advised to take bath with soap and water. Thereafter no communication was made by the patient party with the OP no.1.  Neither they came with the biopsy report.

            Under the above grounds, the OP no.1 has stated that he had no negligence in the matter of medical treatment and/or operation of the wife of the complainant.

            OP No. 2 Nursing Home contended in their written version that for getting RSBY facility  the complainant got his wife Parulbala Maity admitted in their nursing home under the treatment of Dr. Dibyendu Haldar, the OP no.1. The operation was uneventful, normal operation was done by the OP no.1  in presence of antitheist, nurses and other expert staff of the OT. The complainant paid Rs. 9500/- as he had no RSBY card facility.  The OP no.1 prays for dismissal of the complaint case.

Point to be considered in this case is whether the case is maintainable and (2) whether Complainant is entitled to the relief(s) sought for by the complainant.

Decision with reasons

            Both the points are taken up together for consideration for the sake of convenience.

            We have carefully perused the affidavit of the complainant, the written versions and all  the documents filed by  the parties, affidavit in-chief of the complainant, questionnaires  by the OPs and also the reply thereto filed by the complainant and heard the submission of the ld advocate for the complainant.

            The OP no.1 admitted  that OP no.1 is a surgeon doctor but not a doctor of the OP no.1 , Sister Nibedita Seva Sadan Nursing Home. It is also admitted that the OP no1 has operated wife of the complainant on 08.0.8.2016 after clinical examination and on perusal of the supporting UGS report done on 31.07.2016.  The USG report suggested small thick walled, contacted Gall Bladder with multiple calculi, CBD was not dilated and there were no calculi inside. He also consulted the supported prescription of Dr. AK Shee dated 31.07.2017, who is not a party in this case. It is not denied that consent for the operation from the patient party was taken.  Pre operative prophet lactic antibiotic was given and the patient was sent to the OT.  OP No. 1 stated that on 08.08.17 under spinal anesthesia, open cholecystectomy done with Kocher’s  sub costal incision.  Calot’s Trangle identified and carefully dissected. Cystic duct and Cystic artery legated together with silk ties and gall bladder dissected out from liver bed and delivered. Wound checked and haemostasis achieved. No 18 Ryle’s tube drain given and incision closed in layers with 1-0 sicryl, skin closed with 2-0 monofilament nylon. But this procedure, what has been stated by the OP no.1 doctor  in his written version is not reflected in any report, as filed in the case record.  OP No. 1 did not file any specific document except a diagram attached with the written version. From this diagram the procedure which has been stated by the OP no1 cannot be understood.

            The complainant has stated that after the operation, his wife repeatedly felt pain in her abdomen .The complainant stated that the OP no.2 insisted him to admit his wife  in the nursing home of the OP no.2 under treatment of the  OP no.1 Dr. D. Haldar. The complainant paid Rs. 9500/- as cost of the operation at the time of discharge of his wife. The complainant informed  the OP no.2 about the pain felt by his wife over phone and in reply the OP no. 2 suggested the complainant to continue the same medicine.  On 15.08.2016 pain of wife of the complainant  aggravated at noon which was also informed to the OP no.2 over phone and they  advised  to take the medicine  till 16.08.16. Then on 19.08.16 the complainant went with his wife to the OP no1 who prescribed the same medicine.  But according to the complainant his wife felt same pain in her abdomen and the complainant informed the OP 2 the same over phone and OP no 2 again told the complainant to take medicine regularly.

              From the copy of the discharge certificate filed by the complainant it appears that his wife Parul Maity was suffering from acute cholecystitia with choletikisata and she was admitted in the nursing home on 08.08.16. Doctor gave some suggestions in the discharge certificate  and told the patient to review on 19.08.16. On 19.08.16 doctor suggested medicines but according to the complainant his wife’s pain did not decrease and for that reason on 24.08.16 the complainant admitted his wife at RRB Memorial Hospital at Salgechea, Tamluk under Dr. T.Banerjee. Dr. T. Banerjee suggested some tests for the patient. On 25.08.16  Dr. D. Roy of RRB Memorial Hospital suggested the complainant for USG and other tests of his wife. The complainant did that as per advise of Dr. D. Roy on 30.08.16. Dr. T. Banerjee visited  wife of the complainant at the Nursing Home on 31.08.16 and suggested micro surgery  of ERCP urgently.  Thereafter on 05.09.2016 Dr. T. Banerjee  discharged the patient from the Nursing Home and referred the patient to SSKM Hospital for better treatment.  Thereafter wife of the complainant came to Dr. Sibasish Maity of RRB Memorial hospital who also suggested complainant for microsurgery of ERCP of his wife as early as possible for her better treatment.  He also suggested the complainant for admission of her wife at RG Kar Medical College and Hospital, Kolkata. On 15.09.16 the complainant ‘s wife was taken to Medical College and Hospital  and she was treated there  and doctors there suggested for USG  of whole abdomen.  Thereafter the complainant ‘s wife was admitted  to Anandaloke Hospital, Salt Lake, Kolkata and as per report of ERCP  it was found CBD STONE – EXTRACTION DONE, BILLIARY LEAK – STENTING DONE. They also advised the complainant for removal of biliary stent after two months. Complainant was treated there  till 28.09.16.  From then the wife of the complainant was under treatment of Dr.Sibasis Maity.  

            According to the complainant  the OP no1 operated his wife with medical negligence and as a result Gall Bladder – CBD injured and infection of complainant’s wife  body started in the gall bladder area. For that reason she is living with a critical situation of injury and OP no 2 willingly harassed  and humiliated  the complainant on the issue and did not give any co-operation  to the complainant though the complainant had fulfilled  their demand.

            According to the OP no.1 wife of the complainant was all along normal after the post operative period. OP no.1 tried to impress this Forum by arguing that if the initial USG  was done on 31.07.16 suggested CBD calculi, doctor OP no1 would have  suggested the patient  to undergo ERCP first  followed by cholecystectomy and if there was any ‘ biliary fistula’ during the operative procedure, patient might hvave developed “Biliary spilage” and would not survive till 19.09.16. Besides that he also stated that if the patient directly communicated to him and showed her histopathology report then he would if suggested her to consult a gastroenterologist/Onchologist.  It has been argued from the side of the  OP No 1  that none of the relatives of the patient  stated that they tried to contact him and he refused to see them. It is also alleged that from the note of Anandaloke Hospital it was revealed that the patient underwent SRCP on 19.0-9.16 and  A MRCP done on next day showed sub-phrenic collection which clearly  indicates  that the biliary fistula occurred post EFCP  during the extraction of DBD calculi, not in post-cholecystectomy period. The OP no.1 also argued that in every 200 cases of  cholecystectomies, 1 – 4 cases of CBD injury occurs. No one can predict the outcome of their performance beforehand. Early detection and management is the only option. Drainage of bile juice outside the body is also practiced and in most cases all fistula heal within 8-12 weeks . In  this case the patient was comfortable throughout the post operative period and never complained of any troublesome symptoms to the OP no.1 which did not allow him to detect  any post operative  complications and to start any intervention.

            According to the OP no. 2 an uneventful normal operation was done by the OP no.1  in presence of anesthetist, efficient nurse and other OT staff. The patient was comfortable in the OP no. 2 nursing home from 14.08.16 under the care and treatment of OP no.1 the complainant paid Rs. 9500/- as cost  of operation as Parul Maity was not entitled to get RSBY card facility.

             We have also perused the affidavit-in-chief filed by the complainant and the questionnaires and reply thereto filed by the complainant.

            The following question of OP No.1 and answers thereto by the complainant are relevant to mention here :

            Question No. 3   Is it true that  after USG report received from USDC Nimtala on 31.07.16  it is found  Gall baldder is small thick-walled contracted and contains multiple  calculi inside and the other ingredients are normal. ?

Answer :  USG report dated 31.07.16 was as (i) calculus cholecystitis (2) normal CBD 3. Bilateral Kidney’s Appear Normal and 4. No free fluid seen in the abdomen.

Question No  5 : have you taken any opinion except OP no.1  after showing USG report   - If yes, what opinion was given by said doctor.  ?

Answer : After operation  by the OP no.1  there USG were done on 25.08.2016.08.2016 and on 31.08.2016.

Question No. 6: Is it true that Gall bladder calculi and CBD calculi is different part of Human body ?

Answer :  It is known to me.

Question No.7: It is true that USG and EFCP is different diagnostic method for identification of actual disease ?

Answer : Yes

Question No. 8. Can you say in how many nursing homes and hospitals your wife was treated and give the name of such institutions ?

Answer  : There Nursing Homes, Nibedita Nursing Home, RRB Tamluk, Anandalok Hospital Kolkata and RG Kar Hospital.

Question No . 11. Is it true that there was no adverse opinion by other doctor’s in regard to such operation as result CBD calculi was found ?

Answer  Yes.

Question No. 12 :  it is not at all true that due to medical negligence and wrong operation by the OP no.1 you suffered  mental agony and loss ?

Answer :  due to medical negligence  of Ops my wife died.

We have also perused the discharge certificate of Anandalok Hospital. It appears that date of admission of wife of the complainant in the hospital was 18.09.16 and she was operated and discharged  on 28.09.2016. As per said report condition of the patient was stable.  Advise on discharge was normal diet, same medicine and removal of dilatory stent  after two months.   From the report of ERCP - indication  - Biliary leak/post chole (Ca G).  Pupila is normal. CBD is dilated with filing defect in distal CBD. There is extravasations of contrast from mid-CBD . IHBRs are not dilated.  PD is not evaluated.  Procedure  : Selective  CBD cannulation done. Sphioncterotomy done. CBD  sweeped with balloon  stones extracted. A 10 ft.  plastic stent placed in CBD  across the leak.  Impression: CBD stone – Extraction done . Biliary Leak –stenting done.

            The complainant alleged that for their carelessness and negligence in operation of his wife’s gall bladder his wife suffered seriously and they are also suffering mentally.   It appears that the problem of wife of the complainant started after the operation and that had not been properly explained by the OP No.1., It is settled law that error of judgment in prescribing a line of treatment by a qualified doctor cannot be an act  of negligence but if the doctors prescribed medicine or administers a treatment which by all standards  could not have been given , then such a situation does not tantamount to an error of judgment. A physician would not assure a patient of full recover in every case. The Surgeon can not and does not guarantee  that the result of the surgery  would invariably  be beneficial, much less  to the extent of 100 per cent   for the person operated on.  The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence.  This is all what the person approaching the professional can except. Judged by this standard a professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisites 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 the present case, it is clear that OP no.1 could not remove all the stones though operated the abdomen of the wife of the complainant. As a result  she repeatedly had been suffering pain in the abdomen and had to take treatment of different doctors and she had to take guidance of different doctors and ultimately it was found that all the stones from the gall bladder of the patient had not been extracted out.  

            There is no report of biliary stent which was found after the second operation. No such document has been filed by the complainant or by the OP no.1 to show the professional qualification of the OP no.1 doctor. But is clear that OP no.1 operated the wife of the complainant and he had no reasonable skill which a patient can except regarding operation and his surgery on wife of the complainant appears to be not beneficial for her. No literature has been filed by the OP no. 1 when the complainant is alleging negligence and the negligence is found apparently, then the OP no.1 should prove by cogent evidence that he was not negligent.

           The complainant has prayed for a compensation of Rs. 19,70,000/- from the Ops  due to harassment and litigation charge of Rs. 10,000/- for conducting this complaint case.  But we do not find any reason for imposing such a huge amount payable by the OPs.  It reveals from the questionnaires that subsequently wife of the complainant died but it is not proved by any cogent evidence that due to the treatment of the patient by the OP no1, wife of the complainant died.

           Under this circumstances, we do not come to any positive conclusion on this point as there was no evidence  to the effect  and there is also no statement on the death of wife of the complainant.  But however, we are of the view that an amount of Rs. 50,000/- as medical expense of the wife of the complainant should be given to the complainant.

           In view of the aforesaid discussion we  hold that the complainant is entitled to get a part relief in the case.

                       Both the issues are answered accordingly.

                       Hence, it is

O R D E R E D

That CC/ 336 of 2017 be and the same is allowed on contest in part against the   OPs.

             Both the OPs are directed to pay jointly or severally, an amount of Rs. 50,000/- to the complainant as compensation and a sum of Rs. 10,000/- as litigation cost within one month from the date of this order, failing which they would be liable to pay an interest@ 9% per annum on the total awarded amount till final realization, failing which the complainant will  have the liberty to put this order into execution.

            Let copy of the judgment be supplied to all the parties free of cost.