DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM

WEST TRIPURA : AGARTALA

 

CASE NO:  CC – 138 of   2017

 

Smt. Supriya Malakar alias Supriya Das,

W/O.-Sri Biswajit Das, D/O.-Sri Narayan Ch. Malakar,

Resident of Milanchakara, Road No.2, Srinagar,

P.S. A.D. Nagar, Agartala,

Dist.-West Tripura. …....…..…......Complainant.

 

           -VERSUS-

 

1. Dr. Ela Lodh,

MD FICOG, FICMCH, FICS(USA),

Consultant Obstertrician & Gynaecologist,

Krishnanagar, Advisor Chowmuhani,

Agartala, West Tripura.

 

2. Mrs. Shefali Sarkar,

Sarkar Clinic and Nursing Home,

Hari Ganga Basak Road,

Agartala, West Tripura. …........... Opposite Parties.

 

 

 

__________PRESENT__________

 

 SRI A. PAL,

PRESIDENT,

  DISTRICT CONSUMER 

 DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SMT. DR. G. DEBNATH

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

C o u n s e l

 

For the Complainant : Sri Purushatam Roy Barman,

  Sri Kawsik Nath,

  Smt. Aradhita Debbarma,

  Advocates.

  

For the O.Ps : Sri Sankar Bhattacharjee,

  Advocate.

 

 

JUDGMENT   DELIVERED   ON:  27.08.2018.

 

 

 

J U D G M E N T

This case arises on the petition filed by Supriya Malakar  U/S 12 of the Consumer Protection Act. Petitioner's case in short is that she was diagnosed with right ovarian cyst by Dr. Mrs. Swapna Datta on 06/08/2006 & advised her to remove the cyst through surgical procedure accordingly complainant attended the chamber of  Dr. Ela Lodh Opposite Party Gynecologist on 21/08/2006 for surgical operation to the remove the ovarian cyst. Opposite Party Dr. Ela Lodh agreed to perform  surgery after going through the USG (Sonography) report of lower abandonment. Operation fees was paid and she performed surgery on 27/08/2006 to remove the right ovarian cyst. Complainant paid Rs.15,000/- with the charges of Nursing Home. It was told  that the cyst was removed only without removing the right ovary. But in the month of the January, 2017 after about 11 years Complainant suffered abdominal pain and she undergone USG in Mediland Diagnostic Centre at Agartala then Apollo Hospital, Chennai. The Apollo Hospital gave USG report of the complainant  & observed that right ovary not found left ovary was there. On 15/06/2017 ovarian cystectomy was done by the Apollo Hospital and it was reported right ovary is absent. Complainant was shocked when  it is discovered that due to medical negligence right ovary was removed by the Dr. Ela Lodh. So she is claimed  compensation Rs.11,30,000/-  in total. 

 

2. O.P. No.1 Dr. Ela Lodh filed written statement denying that the right ovary was never removed by her. She has been working  as Gynecologist Diagnostic Obstetrician for last 50  years &  she always exercise skill and care at the time of surgery.

 

3. O.P. No.2 also filed Written Objection and stated that Discharge Certificate issued correctly on the basis of Operation note. The claim is  liable to dismissed.

 

4. On the basis of contention raised following points cropped up for determination.

  (I) Whether the right ovary of petitioner was removed by the O.P. No.1 at  the time of surgery long back in the year 2006?

  (II) Whether petitioner is entitled to get compensation for  medical negligence of O.P.?

 

5. Petitioner side produced Legal notice, Medical Prescription, Discharge Certificate, USG report on 06/06/2017 & 05/01/2017. Petitioner also produced the original copy of Sonic Health Research Centre. Statement on  Affidavit of Mrs. Supriya Malakar also produced. 

 

6. O.Ps. also produced statement on Affidavit of Dr. Ela Lodh & Shri Sushanta Chakraborty both were cross examined. 

 

7. On the basis on evidences we shall now determine the points. 

FINDINS & DECISSION:

8. In this case medical negligence was discovered after eleven years of operation on the basis of the U.S.G. Sonography report of Apollo Medical Hospital. But The Doctor concerned or the Laboratory technician who did the U.S.G in the Apollo hospital were not produced to prove the total absence of right ovary. The Sonography report of Apollo hospital is not conclusive proof. It differs with Sonography report of Mediland Diagnostic Centre. In the report of Mediland Diagnostic Centre right ovary in enlarged condition found on 05-01-17.  Again USG was done in Sonic Health & Research centre on 07-04-2018. In that report right ovary was not visualized. 

 

9. In this regard Ld. Advocate for the petitioner referred the decision of Our Apex Court vide 2011 SCC page 53. In that case our Supreme Court held that in case of medical negligence patent & latent negligence when discovered is to be taken into consideration  while determining point of limitation. In this case alleged medical negligence took place in the year 2006. Patient was O.K. & there was no complication. Patient had no doubt about the success of operation. In the statement on affidavit she repeated the complaint petition. But she did not tell any thing about the latent  effect of operation. 

 

10. Supriya Malakar in her statement on affidavit stated that she came to know about the mischief of service for the first time in the month of June, 2017. She underwent the operation in the year 2006 and the latent effect she understood after lapse  of 11 years. The case is barred by limitation. Therefore, learned advocate for petitioner referred the decision of the Supreme Court, V.N. Shrikhande Vrs. Anita Sena Fernandes in (2011) 1 SCC page -53. In that case for 9 years the respondent neither made any contact with any doctor after surgery. In that case our Supreme Court held that why she wait for 9 years. The long silence on her part militates against the bonafides of the respondent's claim for compensation and the Discovery Rule can not be invoked for recording a finding that the cause of action accrued to her in November 2002. 

 

11. In this case also petitioner did not say that she suffered any pain or sufferings after the operation for last 11 years. What damage was caused to her also not explained. So Discovery Rule after period of 11 years also not applicable in this case. 

 

12. O.P. surgeon Ila Lodh had the required skill for doing operation. She had also wide experience. There is no evidence to show that she did not exercise due care or caused any damage. There is also no evidence to show that petitioner did not undergo any operation during this 11 years in between 2006 to 2017. She posses the skill and knowledge for the purpose. The skill of the medical  practitioner differs from doctor to doctor. Our Supreme Court held that courts would indeed be slow in attributing negligence on the part of a doctor  if he perform his duties in the best of his ability and with due care and caution. 

 

13. In Dr. Laxman Balkrishna Joshi Vs. Triambak Babu Godbole & Anr. (1969)1 SCR 206 our Supreme Court held that as long as doctors acts in a manner which is acceptable to the medical profession and the court find that he has attended the patient with due care skill then the doctor can not be held to be guilty of negligence. 

 

14. In this case medical negligence of O.P. Dr. Ila Lodh not proved at all. So she is not under liability to pay any compensation. Both the points are decided accordingly.

 

15. In view of our above findings this prayer is dismissed. Parties are to bear their own cost.    

 

 

    Announced.

 

 

 

 

 

 

SRI A. PAL

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA.

 

 

 

 

SMT. DR. G. DEBNATH,

MEMBER,

 DISTRICT CONSUMER DISPUTES 

REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA SRI  U. DAS

MEMBER,

 DISTRICT CONSUMER DISPUTES 

REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA