This is a case for medical negligence.
The facts of the case in brief is that the complainant is a Staff Nurse attached to Jorepakri Sub-Centre under Maynaguri BPHC and her husband, Dipak Kumar Roy is an Assistant Teacher of Barnish High School at Barnish. In the year 2007 the complainant became pregnant and she was under the treatment of Dr. Anup Kumar Pal, Gynecologist for better management of her treatment. At that stage the complainant was also suffering from vomiting and pain in her abdomen. So she consulted with Dr. Salil Dutta and Dr. P.K. Barma, Gynecologist of Siliguri and Jalpaiguri. But both of them made an opinion that during the stage of pregnancy this sort of symptoms arises and there would be no such complication after delivery of the baby. On 26.09.08 the complainant gave birth of a Female child by cesarean section under Dr. Anup Kumar Pal at Eveland Nursing Home and released there from on 31.09.07. The complainant and her baby were completely fit thereafter. Subsequently, after 10 days from the date of her discharge from Nursing Home the complainant was suffering from severe pain in her abdomen with vomiting and after taking medicines it was subsided. Again on 24.10.07 such pain was developed in upper abdomen with vomiting. She was consulted with Dr. Pinaki Sarkar, Gastro Physician. Thereafter she was under the treatment of Homeopathy Dr. M.S. Nandy of Siliguri. She was advised for different types of tests including Ultrasonography and on consultation with the report it was opined by the doctor that such root of the pain is Gall Bladder Stone and advised the complainant to undergo Laparoscopic cholisystectomy operation. So, the complainant and her family members consulted with Dr. A.K. Pal, Gynecologist under whom she went under cesarean operation during her pregnancy and it has been opined that no problem would arise for operation in Gall Bladder stone by way of Laparoscopic cholisystectomy. So, the complainant had been to the North Bengal Medical College on 22.11.07 with her all treatment papers before the OP No.1/Dr. Jishnu Sankar Roy Basunia who after thorough examination and on perusing the medical papers made an opinion to undergo Laparoscopic cholisystectomy within a few days thereby the complainant would be recovered completely and advised for several tests and investigations such as Blood Test, TC, DC, ESR, Hemoglobin, USG upper Abdomen, ECG and several other tests and also asked to get admission on 27.11.07 after all clinical tests. She was also prescribed certain medicines by the OP No.1 who always assured that patient would be released within two or three days in good health and no problem would be arose as the operation was a minor one. As per advice of the OP No.1 the complainant made all clinical tests on 27.11.07. Thereafter complainant with her husband had been to the chamber of the OP No.1 at Basu’s Clinic, the OP No.2. So, the complainant got admission on 28.11.07 at 8 p.m. at Basu’s Nursing Home. The further case of the complainant is that her mother-in-law also got admission in the said Basu’s Clinic for some operation under the care of the OP No.1. After getting admission in the said Nursing Home she was uncared and unattended condition till 9.30 p.m. and no doctor visited for examination of her physical health. At about 7 p.m. the mother-in-law of the complainant was taken for operation and after 2½ hours she was taken to her bed. Subsequently, a nurse came to open a channel in her hand but on seeing her nature or work she was under impression being a qualified nurse that the said nurse was untrained one having no experience in this matter. Thereafter at about 9.30 p.m. she was taken to Operation Theater. At that time she noticed that an operation was going on to a boy and the doctor concerned was engaged in stitching at his abdomen. She was pushing an injection and ultimately she became unconsciousness within a few minutes and her sense regained after sometimes. But subsequently she became senseless again. Thereafter when her sense regained she was lying on her bed just beside her mother-in-law. She tried to take her seat but failed to do it due to drowsiness. She was again pushed an injection and ultimately became senseless. On the next day i.e. on 30.11.07 she suffered from a high temperature and vomiting. She was then advised for Blood Test, Bilirubin (total direct and indirect and other test). From the report of the Blood Test it has come to her knowledge that Serum Bilirubin was then 6.5 (direct 5.10 mg, Alk Phosphate 504). On seeing the Blood Test report the OP No.1 made an opinion that Jaundice developed to the complainant after operation for which the complainant had to stay some days in the Nursing Home. Thereafter on 02.12.07 she was again advised for Blood Test and at that time bilirubin percentage was very much higher than the normal level range. The complainant also suffered from abdomen pain and on seeing her physical condition Saline was started but no such improvement was noticed rather it was deteriorated day by day. She was thereafter advised for USG test on 03.12.07. At the time of USG test the OPs No.1 & 2 were present and from their conversation she came to know about the complication of her physical condition. In spite of repeated request about the physical condition the OPs No.1 & 2 did not say anything intimating about her complication or physical condition. As a result of which the complainant became depressed. From the USG report it has come to her knowledge that proximal part of common duct is visualized which shows mild dilatation. Subsequently, on 04.12.07 it has come to the knowledge of the complainant and her husband that another operation is needed for complete recovery and she would be cured within 2-3 days. But after first operation the physical condition of the complainant deteriorated day by day again she was advised for Blood Test for Bilirubin and from the said blood test report it has come to her knowledge about increasing of bilirubin. Even then she was discharged on 06.12.07 with a remark of obstructive jaundice and surgical operation is needed. From the discussion of other doctors including Dr. Sailaja Gupta she had been advised for another operation at North Bengal Medical College but no doctor made any explanation as to why such second operation is needed. So, the complainant and her family members having no other alternative took the complainant in their house with itching pain and high fever. After returning home the physical condition of the complainant became deteriorated and in spite of reporting her condition the OP No.1 did not agree to take any steps before three weeks. So, on seeing the physical condition of the complainant her husband made consultation with Dr. Abhishek Biswas who examined the complainant at Marina Nursing Home, Jalpaiguri and prescribed for Blood and MRCP Test and on perusal the report she was advised for immediate operation. So, the complainant took second opinion from Dr. A.K. Deb on 12.12.07. On examining her she was again advised for immediate operation. Thereafter, the complainant got admission at Mitra’s Clinic when bilirubin range was 13.8 and several tests were done therein. She went under operation on 17.12.07 and by the said operation 9 clips were removed from the place of previous operation, several tubes and pipes were fitted with patient. Thereafter all those pipes were removed from the body of the complainant and she was gradually feeling well. But on 30.12.07 fever with vomiting started. She was discharged from Mitra’s Clinic on 01.01.08. Meanwhile, several types of test including bilirubin were done on different dates on and from 20.12.07 to 30.12.07. She was examined by several doctors meanwhile. After returning home on 01.01.08 high fever with vomiting recurred. Alkaline Phosphate increased up to 1020. OP No.3 made/prescribed some medicines. Ultimately, the range of Alkaline Phosphate was decreased at 470 as it appears from the blood test report dated 10.03.08. Despite under the care of several doctors and taking medicines there was no improvement in her physical condition rather it was deteriorated. She was advised to consult with Gastroenterologist. Without having no other alternative she along with her husband had been to Hyderabad and registered her name in Asian Institute of Gastroenterologist and several tests were done thereon. On perusal the reports she was advised for open surgery and referred to Dr. Reddy. She was advised for ERCP test and Endoscopy and subsequently doctors of Hyderabad advised for open operation and referred to Dr. G.V. Rao who on seeing the physical condition of the complainant advised to come again after two months and after various tests necessary steps would be taken thereon. So, the complainant again on 09.09.08 had been to Hyderabad. Various tests were done as per suggestion of Dr. G.V. Rao and it was suggested for hepatojejerostomy. She took second opinion from Dr. Chetan B Mahajan at Jashoda Hospital, Hyderabad. Some view was also given by the said doctor. The complainant then came back to her place of residence with her husband for making
financial arrangement. Vomiting and lose motion was started again and in spite of taking medicine from Dr. Dipali Bhowmik no improvement was noticed. On seeing her physical condition she was again taken to Hyderabad on 30.10.08 and got admission at Asian Institute of Gastroenterology under Dr. G.V. Rao on 01.11.08. On 12.11.08 PTBD was done for detection of Hepatic duct. Thereafter on 14.11.08 open operation was done and discharged from thereon 25.11.08. Stitches were removed on 28.11.08. She was thereafter under the care of Dr. G.V. Rao after various checkup up to 11.09.09. She became fit and all the complications as faced by her were disappeared and she started her normal life and resumed her duty.
The OP No.1 suggested for cholisystectomy operation and she was assured to be fit within two or three days but no such improvement was noticed due to negligence on the part of the OP No.1 and the operation was not done properly and by the effect of such operation Jaundice developed and due to negligent act liver function dearranged associated with cholangities and itching all over body. Even without caring the physical condition she was discharged by the OP No.1 at the stage of high fever with acute jaundice. No responsible care was taken by the OP No.1 even at the operation or in post operative period as a result of which the complainant’s life was at stake. She was suffered on various ways. No proper care was taken at Basu’s Clinic. Due to negligence and deficiency of service of the OPs No.1 & 2 she sustained all various ways and by the act of the OP No.1 she had to face four major operations within a few months as she was wrongly advised and did not take proper care during the said operation. Ultimately on prolonged treatment and successful operation by the doctors of Asian Institute of Gastroenterology, Hyderabad she was then out of danger and is now living on her normal life although she is now under the treatment of Hyderabad as her treatment is still continuing. She was harassed by the OP No.1 and after getting all such knowledge of further prolonged treatment the OP No.1 asked the complainant’s husband to his home at Hakimpara, Jalpaiguri and handed over two cheques amounting to Rs.20,000/- dated 02.04.08 and Rs.30,000/- dated 24.05.08 totalling Rs.50,000/- with a request not to take any legal steps. The complainant had to sign one declaration prepared by Jagadananda Barman as her husband was in need of money for her treatment. He had to accept those two cheques and compelled to sign over the said declaration at the instance of the OP No.1 with a declaration that OP No.1 would not be liable due to ill treatment undertaken on the complainant. As the OPs did not take proper care from the inception of making treatment to the complainant and on fault on the part of the OPs No.1 & 2 the complainant had to take prolonged treatment up to Hyderabad for her recovery and incurred a lot. Even her life was at stake. The negligence and nature of treatment as made by the OPs No.1 & 2 amounts to deficiency of service. Hence, this case for proper relief with compensation.
The OP No.2/Dr. Ajay Kumar Basu contested the case by putting Written Version denying each and every allegation as made therein with a specific defence that the case is not maintainable.
The defence case is that he is the Proprietor of Basu’s Clinic. The said Nursing Home styled as Basu’s Clinic bears multi specialty supports facilities having no specialized doctors attached to it. As a matter of practice patients approached specialist doctors who in turn advised admission to the Nursing Home so as to avail the support facility available at the Nursing Home. The patient is treated by the specialist doctors and in accordance with the advice of the specialist doctors under whom the patient got admission. The Nursing Home is not responsible for collection and/or payment of the bills of the specialist doctors who treated the patient and raised his professional fees directly from the patient. The Nursing Home does not have any diagnostic facility or pathological Lab or medicine shop. But those are available at the premises and are provided by separate business enterprises. The patients admitted at Basu’s Clinic may or may not choose to avail the services of these enterprises at their own instance.
On 28.11.07 at about 11.05 a.m. one, Smt. Banasri Roy got admission under the instruction of Dr. Jishnu Shankar Roy Basunia for Laparoscopic cholisystectomy operation. All operations were provided as per instruction of the said Dr. Jishnu Shankar Roy Basunia who himself conducted the operation. The OP No.2 being a specialist in Gynecologist and Obstetrician does not have the specialization or expertise in the field of the nature of treatment as made by Dr. Jishnu Shankar Roy Basunia. There was no deficiency or negligence on the part of the Nursing Home concerned. On 06.12.07 the patient was discharged at about 12.30 hours. The infrastructure of the Nursing Home is sufficient for cases and the complainant and her family members are fully aware about it. There are three separate OTs in the said Nursing Home having separated for each other with separate entries. The OT dedicated for Laparoscopic surgery is exclusively used for that purpose and not for other operation. No two operations as alleged by the complainant can take place in any OT nor can any outsider vigil the events inside the OT. The OP No.2 further denied of making any discussion at the time of USG with the patient or the complainant as alleged. The OP No.2 is not aware about any issuance of cheques or handed over to the complainant by the OP No.1. There is no deficiency of service or
negligence on the part of the OP No.2/Nursing Home concerned. Therefore, the case is liable to be dismissed with cost against him.
The OP No.1/Dr. Jishnu Shankar Roy Basunia contested the case by putting Written Version supported by affidavit denying each and every allegation as made therein with the specific defence that he is an Assistant Professor, Doctors of Surgery of North Bengal Medical College & Hospital, Sushrutanagar having qualification of MS in General Surgery from Calcutta University in 2004 and MBBS from the Calcutta University in 1998. On 22.11.07 the husband of the complainant met with him for the purpose of treatment of the complainant together with treatment papers including Pathological test reports. The complainant did not visit on 22.11.07 for which he has no scope to examine her or gave any assurance to recover within a few days after operation. He advised some tests to be done and also advised them to come on 27.11.07 to Basu’s Clinic for Clinical tests and surgery. He wrote a prescription on 27.11.07. He never disclosed either to the complainant or to her husband that the operation in question was a minor in nature and the patient would be released after 2-3 days. He also advised the complainant or her husband to defer the procedure of operation which was not immediate necessary as because the complainant was a breast feeding woman. Necessary medicines, antibiotics were given to manage the infection. Any type of surgery is inherently risk and susceptible to unforeseen complication some of which can be detected only after surgery. The further defence is that on 04.12.07 he told the complainant and her husband that another surgery on the complainant was required. The blood test done on 05.12.07 showed that there was a slight increase in the bilirubin level of the complainant and on 06.12.07 she was discharged in a stable condition. He advised to remove the complications to wait for six weeks before undertaking the corrective surgery. So, he advised to undertake ERCP i.e. Endoscopic Retrograde Cholangio Pancreatographi and USG after three weeks and to report him. The ERCP might have solved the problem if the complainant follows the instructions as advised her. At the request of the complainant two Senior Surgeons of Siliguri namely Dr. D.D. Purakayasthya and Dr. S.P. Gupta were called and examined the patient. Both of them opined for a corrective surgery after 1½ months. The husband of the complainant never contacted after post operation period. On the contrary the complainant underwent a premature surgery which was yielded any positive result consequence of which third surgery was required. The further defence of the OP No.1 is that he has followed the Standard Protocol of treatment in treating the complainant from beginning to the end. He has not charged even one rupee from the complainant or her husband. The treatment was done in a complimentary basis from the very inception. There was no deficiency or negligence on his part. The complainant without waiting for the mandatory period of six weeks from the date of surgery of the Laparoscopic Cholisystectomy operation went under further operation prematurely. In the last week of March, the husband of the complainant approached through his Brother-in-law, Jagadananda Barman as to that complication had arisen due to the said operation he has sustained heavy financial burden in getting the second corrective surgery done and accordingly on humanitarian ground he issued two cheques of Rs.20,000/- and 30,000/- in all Rs.50,000/- in favour of the husband of the complainant. He never compelled the complainant or her husband to put any signature any declaration as alleged. As there is no deficiency of service or negligence on his part the case is liable to be dismissed with cost.
Upon consideration of pleadings of the respective parties the following issues are framed for adjudication :-
- Is the case maintainable?
- Has the Forum got jurisdiction to entertain and try the instant case?
- Is there any deficiency of service on the part of the OPs?
- Is the complainant entitled to get award as prayed for?
- To what other relief/reliefs as prayed for?
Point No.1 & 2.
It is a case of medical negligence against the OPs No.1 & 2. So, it is to be first prove that the complainant is a consumer under the OPs as provided under Section 2(1)(d) of the Consumer Protection Act, 1986 and there was negligence in undertaking the operation like Laparoscopic cholisystectomy done by the OP No.1 held at Basu’s Clinic under the care of the OP No.2. Due to the negligence as alleged on the part of the OPs the complainant had to suffer not only physically but also financially and her life was at stake.
In this regard specific defence of the OP No.1/Dr. Jishnu Shankar Roy Basunia is that on compassionate ground and/or humanitarian ground he paid Rs.50,000/- by two cheques to the husband of the complainant due to complication as arisen by the effect of Laparoscopic cholisystectomy operation. Even the OP No.1 in his evidence/defence categorically stated that he did not receive any rupee from the complainant or her husband as fees towards the treatment of the complainant made by him. So, according to him he has rendered service free of charge. ‘Service’ as defined under Section 2(1)(o) of the Consumer Protection Act, 1986 means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board of lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge of under a contract of personal service.
It is the case of the OP No.1 that the complainant was very well known to him and her treatment was done in a complimentary basis from the very inception. Whereas the complainant in her testimony specifically stated by way of cross examination against the questionnaire put by the OP No.1 that a sum of Rs.12,000/- was paid to the doctor concerned as per the package for three days. But due to failure of the said operation and for the subsequent treatment the money receipt was not issued to her. The OP No.1, the said doctor concerned did not deny it. Rather he has not established his specific defence of personal contract free of service basis by cogent, oral and documentary evidence. There by the testimony of the complainant remains unshaken and free of service without taking any remuneration or any charge is not at all believable. Even nothing has been urged at the time of argument by the Ld. Advocate on behalf of the OP No.1 that free service was given by the OP No.1. Therefore, the contention of the OP No.1 is not sustainable rather service was rendered on consideration,
It further reveals at the time of admission of the complainant in Basu’s Clinic a sum of Rs.5,500/- was given against receipt for admission in charges to enjoy the facilities of the Operation Theater at the time of operation made by Dr. Jishnu Shankar Roy Basunia concerned and there is no denial in this regard.
Therefore considering all the facts and circumstances, it reveals rather proved that service was taken from the OPs No.1 & 2 on consideration. If that be so, when service was availed of on consideration the complainant is a consumer as defined under Section 2(1)(d) & (o) of the C.P. Act, 1986.
Whether service rendered shortfall or not sufficient or negligence having deficiency of service on the part of the OPs NO.1 & 2 it relates with merits of the case and evidence and documents are to be considered. So, it would be considered later on.
Another argument has been advanced by the Ld. Advocate on behalf of the OP that Dr. A.K. Dev is a necessary party s because from the reports or the evidence of the Expert concerned it has come out that hasty operation was undertaken by the Dr. A.K. Dev without waiting for statutory time of six weeks. So, according to them the latches or
negligence took place on the part of the said doctor, Dr. A.K. Dev and there is no latches or negligence on the part the OPs No.1 & 2. It reveals on scrutiny of the record that the complainant has filed the instant case initially against three persons, the OPs No.1 & 2 including Dr. A.K. Dev as OP No.3. But in four corners of the complaint no allegation was made against the said Dr. A.K. Dev and initial report was called for from the expert concerned through HOD, Surgery, North Bengal Medical College & Hospital and subsequently on call a report was submitted by the doctors concerned and thee is no initial allegation against the said Dr. A.K. Dev. Only there is a mention of premature operation as made by Dr. A.K. Dev on 17.12.07 from the date of first Laparoscopic Chole operation as made by Dr. Jishnu Sankar Roy Basunia and there is no further comment of unsatisfactory outcome for which it was referred to Surgeon at Hyderabad based Asian Institute of Gastroenterology at a right time. So, when there is no specific allegation against the said Dr. A .K. Dev by the initial experts report the said Dr. A.K. Dev was not made as party to the instant case. But complainant was given opportunity to examine the said Dr. A.K. Dev as witness to support her case. But such opportunity was not availed of by the complainant.
Under this facts and circumstances, when there is no specific case against the said Dr. A.K. Dev the Forum does not like to make a party to the instant case. More so, the complainant in her evidence did not utter any comment of alleged negligence made by the said Dr. A.K. Dev. Thereby the Forum is of the view that the presence of Dr. A. K. Dev is not necessary. Therefore, the case does not suffer from defect of party.
All the doctors reside or carries their profession within Siliguri thereby it falls within the jurisdiction of this Forum.
Under this facts and circumstances, this Forum is of the view that the case is maintainable having jurisdiction to entertain and try the instant case.
Thus the issues are decided in favour of the complainant.
Points No.3 to 5
The complainant led evidence in terms of the allegation as made by the complainant against the OPs No.1 & 2 and her specific testimony is that she had gathered horrible experience in admitting the said Nursing Home styled as Basu’s Clinic. She was not attended either by the Doctors concerned or by any Nurse of the said Nursing Home for a long time. Even it has also been alleged that the Nurses are not so trained up. She was misbehaved not only by the Doctors concerned but also by the Nurses concerned.
The OP No.1 after thorough examination of all the medical papers even herself she was advised to undertake Laparoscopic cholisystectomy operation with an assurance that she would be recovered within a few days without having any problem. She was advised several other investigations like different types of Blood Test, X-ray, E.C.G. etc. It is within the knowledge of the OP No.1 that a cesarean baby was borne just before the said operation. But on being satisfaction of her physical condition and considering the nature of symptoms as faced by the complainant she was advised for Laparoscopic Chole operation on 22.11.07 and after seeing all those medical test she was advised for getting admission in Basu’s Clinic on 27.11.07. Accordingly she took admission in Basu’s Clinic on 27.11.07. In this regard the complainant made certain allegations with regard to the treatment of her mother-in-law as experienced from the said Nursing Home whose operation was done from the said Nursing Home and on seeing the condition of her mother-in-law she was shocked, panic and tensed. She uttered much but as the nature of treatment alleged to have been undertaken by the doctor in the Nursing Home to her mother-in-law is not subject matter of the instant case for which the Forum does not like to comment in this regard. On seeing the activities with regard to opening of a channel in her hand or on seeing her gesture being a qualified nurse the complainant made a comment that the said nurse is not qualified as alleged. She also alleged different types of experience before taking OT against the said Nursing Home as well as doctor concerned. But the case as alleged by the complainant has clearly been denied by the OP No.2/Dr. A.K. Basu and also other witness, the Administrator of the said Nursing Home. Main allegation of the complainant was against the OP No.1/Dr. Jishnu Sankar Roy Basunia. According to her despite bilirubin was increasing and after such operation on 28.12.07 she was not completely recovered rather she was experienced of itching on her whole body with complication of pain in abdomen and vomiting as before. Even it has been alleged that after operation she was also advised for various Blood Test for bilirubin total direct and indirect, Alk Phosphate and despite increasing of bilirubin with high fever having itching, inflammation, vomiting she was discharged on 06.12.07 with a remark the patient is being discharged with obstructive jaundice to be corrected later on surgically. In spite of repeated request to the doctor concerned even two other Expert concerned who had seen the complainant or consulted by the OP No.1 no satisfactory reply was given by the OP No.1 as to why second operation was needed despite assurance of recovery within two or three days and would not faced any other trouble. After discharge her physical condition became deteriorated as a result of which the OP No.1 was requested through her husband to examine her but it was refused. Ultimately
a second opinion was taken from Dr. A.K. Dev on 12.12.07 who opined for immediate operation. Another opinion was taken from different other doctors and it was confirmed the opinion as made by Dr. A.K. Dev. As a result of which on 17.12.07 Hepatic duodenumstomy was started and it continued 4½ hours 9 clips were removed from the place of previous operation, several tubes and pipes were fitted with her. Gradually she was recovered and all pipes were removed but on 30.12.07 fever with vomiting was started. She was discharged from Mitra’s Clinic on 01.01.08. Blood Tests were done on different dates the percentage of Bilirubin decreased but Alk Phosphate were the same as it had been prior to the second operation. She was examined at the request of the DR. A.K. Dev, Dr. A.K. Sarkar, Dr. Sudip Nath etc. After returning home her trouble was not removed rather several types of complications arose for which she was referred to Hyderabad, Asian Institute of Gastroenterology. Subsequently, from open operation in Hyderabad under the care of Dr. G.V. Rao all those complications were disappeared and she started to live her normal life although she is still under the treatment of Dr. G.V. Rao of Asian Institute of Gastroenterologist.
The complainant was thoroughly cross examined not only by the OP No.1 but also by the OP No.2. She also filed several medical papers.
Prescription dated 25.10.07 issued by one Dr. Pinaki Sarkar that the complainant visited to the said doctor with the history of pain, nausea with burning sensation. She was advised for USG upper abdomen and upper SI Endoscopy. From the medial report dated November 2, 07 issued by BBS Mediscanner there is impression of cholecystitis with cholelithiasis, small miometrial cyst in uterus. Ultimately, the patient visited to Dr. Jishnu Sankar Roy Basunia on 22.11.07. She was diagnosed as a case of cholisystectomy. She was advised for various investigations, blood tests etc. It bears the signature of the said Dr. Roy Basunia. Thereafter she was advised for admission in Basu’s Clinic under the undated signature of Dr. Roy Basunia who should have put dated signatures therein. The said prescription bears three signatures of Dr. Roy Basunia but save and except the date 22.11.07 no other dates were put therein. This is clear irregularity. From the Discharge Certificate issued by Basu’s Clinic dated 06.012.07 it reveals that patient got admission on 28.11.07 and discharged there from on 06.12.07 with the advice of obstruction jaundice to be corrected later on by surgical instrument if needed. It further reveals that Lap Coli was done on 28.11.07. Her Bilirubin was high and it was fluctuated day by day. Report dated 03.12.07 issued by Bosh Echoscan there is impression of features suggest extra Hepatic Biliary obstruction, mild post operative collection in GB
Fossa. According to thecomplainant the complication arises even after Lap Choli operation. Ultimately she was treated by Dr. A.K. Deb. Discharge Certificate issued by Mitra’s Clinic & Nursing Home under the care of Prof. Dr. A.K. Deb at reveals that the patient got admission on 15.12.07 and discharged there from on 01.01.08 with the history of developed jaundice before present operation dated 17.12.07. Liver function deranged associated with Cholangities and itching all over body. After operation patient was discharged in normal condition. She was treated by Dr. A.K. Deb associated with several other doctors Dr. R. Nag and Dr. T.K. Barman. It further reveals on 01.09.08 the patient was referred to Asian Institute of Gastroenterology. Discharge summary issued by Asian Institute of Gastroenterology goes to show that the patient got admission on 01.11.08, surgery was done on 14.11.08 and discharged on 25.11.08. It was diagnosed post Hepatic Duodenostomy, Anastomic Narrowing summary was given as patient has undergone Hepatic duodenum on 17.12.07 for post cholisystectomy bile duct injury. Following surgery patient is having recurring attacks of cholities in every two to three months. Now she has presented with history of fever on and all since 20 days associated with biles vomiting. She was released with several advice and if necessary in case of medical emergency contact Dr. Sanjeev M Patil. It has been further opined that the condition of the patient at the time of discharge was satisfactory. The complainant also submitted several other prescription of various doctors, Medical Reports and receipts showing huge amount was incurred for the process of treatment from the inception from Dr. J. S. Roy Basunia to Asian Institute of Gastroenterology. So, according to her due to long treatment and operation was not successfully with rapture she had to undergo various treatments including second and third open operation up to Hyderabad, Asian Institute of Gastroenterology and there by she became well although her treatment is still going.
In the instant case it has been attacked by the complainant by two ways. (1) Against negligency of Dr. Jishnu Sankar Roy Basunia whose operation was not successfully with an instruction to second operation after six weeks and (2) against the Administration of Basu’s Clinic as she experienced horribly due to the conduct of the associated nurse and other official staffs in Operation Theater successive two operations were held no proper care was taken.
Let us first see defence case of the OP No.2.
The OP No.2 led evidence through one Mr. Bhanu Bhattacharyya, the Administrative of Basu’s Clinic. According to him the Nursing Home does not have specialist doctors but support facilities are available at the Nursing Home. The Nursing Home has Registered nurses as well as RMOs. The said Nursing Home has three OTs
one of which is used for Laparoscopic Operation exclusively having necessary equipments and all the three OTs are separated from each other by brick walls with full equipments. The patient Banasri Roy got admission on 28.11.07 at about 10.05 A.M. under the instruction of Dr. Jishnu Sankar Roy Basunia for Lap cholisystectomy operation. The operation was conducted by the said Dr. Roy Basunia. The patient was discharged on 06.12.07. It has been admitted by the said witness that an amount of Rs.5,500/- was issued from the complainant towards service charges. But it does not include professional fee of Dr. Roy Basunia.
In support of his contention copy of Cash Bills, Medical papers have been submitted.
The OP No.1 also led evidence as OP W No.2 who categorically stated that USG test reveals that complication of Lap Coli operation had occurred during the surgery of the complainant. On 04.12.07 he told the complainant and her husband that another surgery was required. The complainant was discharged in stable condition on 06.12.07. Two senior Surgeons Dr. D.D. Purakayasthya and Dr. S.P. Gupta was called at the request of the complainant and her husband for their opinion and it was suggested for a corrective surgery after 1½ months. Both the witnesses were thoroughly cross examined. The doctor concerned, the OP No.1 categorically stated that generally six clips are required but it may vary according to the clinical condition and anatomic of the Gall Bladder. The corrective measure is Choledocho Jejunostomy which should be done after 1½ months and accordingly the patient was advised to meet with him after three weeks reason of necessary of Jejunostomy has been fully assigned therein. The OP No.1, the Doctor concerned has submitted his educational certificate to show that he possesses the degree of MBBS, Training in Laparoscopic Surgery degree of General surgery.
Now the question is as to whether the OP No.1, the Doctor concerned are negligent in undertaking Laparoscopic cholisystectomy operation and/or whether he has maintained the Standard Protocol of a treatment of a patient with post Lap Coli billiary obstruction whether ERCP was necessary or not whether second surgery was necessary or not.
Initially at the time of admission of the instant case report was called for from Superintendent, North Bengal Medical College & Hospital, Sushrutanagar engaging a competent doctor or Committee of Doctors specialized in the field to which the medical negligence has been alleged Vide Order No.3 dated 29.12.09. Subsequently, report was received from the Medical Board consisting of three doctors – Dr. Bitan Kr. Chattopadhaya, Dr. Saibal Gupta and Dr. Amarendra Nath Sarkar dated 24.03.10wherein on perusal the material documents prima facie it has been detected as bile duct injury. It has further been opined removal of several clips by the second Surgeon, Dr. A.K. Deb is absolutely unscientific as several titanium clips are used normally for the ligature of the cystic dark and the cystic artery in Laparoscopic cholisystectomy. It has been further opined Surgeon at Hyderabad based Asian Institute of Gastroenterologist intervened at a right time for which successful reward was achieved. Subsequently, Dr. Debashish Bhattacharyya, Prof. & HOD of Surgery, North Bengal Medical College was cross-examined by the complainant on several points. It has been opined with regard to necessary of clipping. It has been answered as to that usually three clips are necessary for the Cystic Duct and three clips for Cystic Artery in a Laparoscopic cholisystectomy operation. But more clips may be necessary if any clip can not be applied properly and if there is an accessory duct connecting liver and gall bladder. It has been further opined there is no necessity of clipping CBD and CHD during Lap Coli. But if the junction of CHS and Cystic duct can not be properly visualized or there are anatomical variation the clips can be applied very close to or right on the CHD or CBD and CHD & CBD may be injured or occluded partially or completely.
With regard to Questionnaire No.3 about the stability of the condition of the patient at the time of discharge it has specifically opined on perusal the pathological test of pre-operative investigation as well as post operative test that there was obstructive jaundice due to extra hepatic billiary obstruction as a result of operative injury to CBD and CHD during Lap coli on 28.11.07 resulting in obstructive jaundice. Stable can be detected of clinical examination for which no specific opinion was given by the said doctor. At the same time it has been opined that subsequent investigation like ERCP about three weeks from the date of operation with a Plan to Stent the injured duct if possible so that the stent reaches above the injury side to relief the obstructive jaundice. The said Dr. Bhattacharyya categorically opined that second operation took place on 17.12.07 i.e. 19 days after the first operation as held in Basu’s Clinic by means of Lap Coli operation. In this regard it has been specifically opined that this type of operative injury is a recognized and demanded complication of Lap cholisystectomy as per National and International Statics and can occur in 1 to 2% of patients undergone this operation. At the same time it has opined the complication was very unfortunate for the patient but it can happen during such type of operation under Lap Coli. Against Questionnaire No.6 about valid reason for 3rd surgery at Hyderabad it has been opined that 3rd operation was correct as it was done when the patient developed a complication of the second operation done by Dr. A.K. Deb due to Anastomic narrowing of the Hepatic duodenustomy and resultant recurrent Cholaities and second operation was done prematurely as the inflammatory reaction of an injured CHD, CBD is not accepted put over just 19 days after the first operation. It has further been opined that no attempt of ERCP and stenting was done as advice. On the surgical point of view it has been opined second operation was not adequate. Lastly it has been opined that first operation done on 28.11.07 for the purpose of treating Gall Bladder stone by way of Laparoscopic cholisystectomy such complication arose due to injury to CBD/CHD by inadvertent clipping of those strictures she should have been referred to a Tertiary Care Centre and second operation was done prematurely as a result of which the patient concerned suffered from various complications and ultimately she recovered by way of third operation which was justified and correct procedure.
Let us now consider the case of the complainant on careful consideration of the materials and evidence on record as it whether the OP No.1 & 2 commit negligence in course of the treatment of Laparoscopic Cholisystectomy of the complainant and such negligence amounts to medical negligence.
In an action in negligence the onus of proof normally rested on the complainant. In a case where general duty of care arose and there was a failure to take a precaution and that failure was fallowed by the damage sustained by the complainant in taking such service hired from the OPs in course of Laparoscopic Cholisystectomy operation undertaken by the OP No.1, the doctor concerned at Basu’s Clinic wherein the OP No.2 is the Proprietor.
The complainant led evidence at length about her sufferings a lot resulting with financial loss as well as depriving of her suckling baby in getting breast milk and proper care and caution to her baby.
It should not be lost sight of that the complainant gave birth of a cesarean baby just two months before the operation of Lap Cole i.e. on 26.09.07. After ten days the complainant suffered from severe pain in the upper abdomen and went to the Doctor Pinaki Sarkar and as per advice of USG and other tests and on seeing the test report it was detected such abdominal pain was due to Gall Bladder and advised to undergo Laparoscopic Cholisystectomy operation and thereafter she went to the OP No.1 on 22.11.07 and ultimately operation was done on 28.11.07 and discharged thereafter on 06.08.07 with alleged sufferings as already discussed above.
So the burden of proof lay on the OP No.1 to show first that he was not in breach of any duty and if he fails to prove that he had not been in breach of duty that such damage was not result from the said breach. Accordingly a doctor has duty upon his patient to take precaution which was normal in course of the treatment that he performed.
Negligence means failure to act in accordance with the standards of reasonable competent medical man at the time and if a medical man confirms with one of these proper standards then he is not negligent. There is distinction between an error of judgment and negligence. The true position is that an error of judgment may or may not be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonable competent professional man professing to have the standard and type of skill that the OP held himself out as having and acting with ordinary care then it is negligent. If on the other hand it is an error that such a man acting with ordinary care, might have made, then it is not negligence.
Severe challenge has been made by the complainant that such complication arises only when it has not been performed the operation properly her life was at stake and several operations were done through second operation undertaken by Dr. A. K. Deb and thereafter through third operation from Hyderabad, Asian Institute of Gastroenterology conducted by Dr. G.V. Rao of Hepatica Jejunostomy plus Right Posterior Sectoral Duct Jejunal Anastomosis and filed several documents as reflected above in support of her case and all those documents supports the case of the complainant above hazards as faced by her but by production of those documents only it does not mean that the doctor concerned committed wrong amounting to negligence in discharging his duty.
The OP No.1 in possessing sufficient degree in the line of Lap Chole he has filed all relevant certificates of his educational qualification coupled with training in the said line.
From the discharge certificate dated 06.12.07 issued by Basu’s Clinic it goes to show that the patient was discharged with obstruction jaundice to be corrected later on by surgical intervention if needed. She was also prescribed for medicines together with advice of ERCP to be done after three weeks USG upper abdomen after three weeks.
It has been admitted by the complainant about giving instructions of second operation if necessary after examination of ERCP to be done after three weeks and the OP No.1, the doctor concerned also stated in this regard. But the complainant’s case as well as testimony is that after returning home she faced with similar types of complication, severe pain with vomiting and day to day her physical condition became deteriorated as a result of which the husband of the complainant had to report to the OP No.1 on 08.12.07 but the OP No.1 refused to take any steps before three weeks as advised and the said contention has been denied by the OP No.1 not only in his defence as well as testimony. So when one’s assertion has been denied by the other it requires to be proved by better way i.e. by documentary evidence. No such documentary evidence is forthcoming to prove such contention of refusal alleged to have been made by the OP No.1. It is also not the case of the complainant that despite her visit to OP No.1 she was refused. It has further come out on scanning the evidence of the complainant that after such operation when there is specific advice of further operation supported by other two Expert doctors her husband and her other family members lost faith upon the OP No.1 for which they took second opinion from other doctors and medical papers also support it.
The prescriptions dated 09.12.07 issued by Dr. Abhishek Biswas goes to show that the patient was advised for Urine for Urobillin and MRCP Test which was done on 11.12.07 and on seeing the report the complainant was advised for urgent admit in Nursing Home for exploration by Dr. A.K. Deb on 12.12.07 and ultimately operation was done on 17.12.07 for Hepatico Duodenostomy, tube drain in HRPM nine clips were removed by Dr. A. K. Deb in Mitra’s Clinic and Discharge Certificate supports it. She was discharged on 01.01.2008 with normal condition. So, it is evident that after nineteen days second operation took place made by Dr. A.K. Deb. But it transpires that the complainant was referred to Asian Institute of Gastroenterology for betterment. Clear evidence has come out after the second operation the physical condition of the complainant was not changed as a result of which the complainant had to rush Hyderabad and had been under the treatment of Asian Institute of Gastroenterology and became fit and recovered ultimately. It was diagnosed Post Hepatico Duodenstomy Anastomotic narrowing.
From the Discharge Summary it reveals the complainant got admission therein on 01.11.08, Date of Surgery was 14.11.08 and discharged on 25.11.08. So, it is evident that after near about one year third operation was done at Asian Institute of Gastroenterology, Hyderabad. Meanwhile inflammation and inflammable reaction due to effect of first and second operations were healed up.
Since the complainant had to undergo second operation and thereafter third operation it creates a doubt as to whether the first operation done by the OP No.1 was correct or not. But it is evident from the Expert’s report that there was an intra operative injury to CBD/CHD during Lap Chole on 28.11.07 resulting in obstructive jaundice.
has been further opined that as per National and International Statistics such type of complication can occur in 1-2 % of patients under going treatment and such type of complication may happen and it depends upon various factors. It has been further opined about second operation made by Dr. A.K. Dev was done prematurely as the inflammable reaction of an injured CHD/CBD is not expected to be over just 19 days after first operation. No attempt at ERCP and stenting was done or advised. It further reveals that ERCP and stenting is must before taking correcting procedure but only after at least six weeks. The procedure as adopted by way of a second operation was not adequate from a surgical point of view. In this regard the evidence of Dr. A.K. Dev was essential to establish that the condition of the complainant was so severe for which right procedure to recover the complainant was second operation otherwise the life of the complaiant was in danger. When the Expert concerned categorically stated that the procedure as adopted in second operation was premature and ERCP + Stenting was not done and not advised also. It also creates doubt that proper method was applied by Dr. A.K. Dev in second operation. It is further evident on perusal the medical papers third operation was not done then and there at Asian Institute and took much time for such operation and thereafter it took place only after near about one year from the date of first operation meanwhile inflammation and inflammable reaction was removed.
The only question is whether the OP No.1 was negligent in treating the complainant and operation by Lap Chole was done negligently.
On careful scanning the report of Asian Institute of Gastroenterology coupled with Expert’s report there is no iota of evidence that such Lap Chole was done negligently or not in proper way rather it was opined such type of injury may happen.
Under Section 45 of the Evidence Act which makes opinion of Experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art or as to identity of handwriting or finger impressions the opinions upon that point of persons specially skilled in such foreign law, science or art or in questions as to identity of handwriting or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
To consider the role of the expert it is also to be considered that the expert must be within a recognized field of expertise; that the evidence must be based on reliable principles and that the expert must be qualified in that discipline. It is evident rather established by relevant documents that the OP No.1/Dr. J. S. Roy Basunia holds such qualification to undergo surgery under the Laparoscopic Cholisystectomy operation which has already been held hereinbefore.
Be it noted here that initial Expert’s report was called on from Medical Superintendent cum Vice Principal, North Bengal Medical College & College. Accordingly Board was formed consisting of three doctors namely Dr. Bitan Kr. Chattopadhaya, HOD (Surgery), Dr. Saibal Gupta, MD (Medicine) and Dr. Amarendra Nath Sarkar, associated Professor, Department of Surgery wherein it has categorically opined on perusal the medical papers that there was bile duct injury in course of operation made by the OP No.1 on 28.11.07. It has also been opined that removal of several clips by the second Surgeon, Dr. A.K. Dev was absolutely unscientific as several titanium clips are used normally for the ligature of the cystic duct and cystic artery in Laparoscopic Cholisystectomy operation. The said injury was detected in the early operative period as mentioned in the discharge certificate. Accordingly it has rightly been advised for a later surgical intervention with an advice for ERCP after three weeks. But the patient was prematurely made an operation on 17.12.07 just after 19 days with an unsatisfactory outcome. According to the said Medical Board that such operation should not be undertaken before period of six weeks. Similar view has also been taken by the HOD, Surgery, Dr. Debashis Bhattacharyya by his specific opinion against the questionnaires as put to him.
When Dr. A.K. Dev despite giving opportunity to examine in support of the case of the complainant to prove that immediate second operation is necessary otherwise life of the complainant would be in danger.
On careful consideration of the opinions made by the Medical Board coupled with HOD, Surgery it reveals that second operation was undertaken prematurely and there are sufficient other procedures in the modern science by sending the Tertiary Care Centre to remove the problems by way of other method the second Dr. A.K. Dev without making such type of instruction went under second operation immediately. But no fruitful result was achieved consequence of which she was referred to Asian Institute of Gastroenterology, Hyderabad and ultimately patient got successful result therein. When modern science has several other avenues in order to get recovery of the problems faced by the complainant the second doctor opined such procedure of undergoing operation immediately just after 19 days has not been accepted by the Expert’s concerned. All the Experts categorically opined that the procedure as adopted by Dr. J.S. Roy Basunia was not wrong but such type of problem may recur in a few case as happened in the case of the complainant.
So, it is evident that no opportunity was given to heel up inflammation of internal part of the body after the effect of first operation as a result of which such problem was faced by the complainant by the effect of second operation immediately made by Dr. A.K. Dev.
So, considering the circumstances, when there is error as clips were not set in properly it does not mean that the OP No.1, the doctor concerned with an ill motive to make such operation wrongly and had no possession of sufficient degree and such procedure was adopted wrongly.
There is far distinction between an error of judgment and negligence. The legal position of the negligence has already been discussed above and when the doctor concerned maintaining Standards of all reasonable competency went under operation of Laparoscopic Cholisystectomy operation taking all such care we do not find any justification to hold that due to such error in developing the physical condition after post operative period it means that there was an negligence. But considering the circumstances, in a few case like the complainant such error was committed by the doctor concerned for which he can not be held medical negligent.
With regard to the Nursing Home concerned the complainant led much about the incompetency of the management of the Nursing Home together with nurses concerned in handling the complainant in opening the channel before operation and in Operation Theater successive operation was held and behavior of the staffs and nurses as well as other personnel attached to the Nursing Home concerned was not up to the mark. But in support of her case no documentary evidence has been furnished. The alleged case of the complainant has categorically been denied by the OP No.2 as well as Administrative Officer and their testimonies have not been dislodged by way of cross-examination. So, that management of the OP No.2 was not up to the mark has also not been proved.
Be it mentioned here the complainant claimed to be a staff nurse attached to Jorepakri Sub Centre, Maynaguri BPHC. But in course of cross-examination it has come out that the complainant is an ANM (Auxiliary Nursing & Midwifery). So, the complainant with regard to professional qualification has not come before this Forum in a clean hand suppressing her real status in order to make stigmatize to the Nursing Home concerned on severe allegation as already reflected above. This has also not been proved.
The complainant has also come forward with another story that OP No.1, Dr. J. S. Roy Basunia after admitting his negligence and doing wrong treatment to the complainant issued huge amount of Rs.50,000/- by two cheques to her husband who had to sign in a declaration before court paper categorically stated that in future no allegation would be made against the doctor concerned with regard to his alleged wrong treatment. The case of the complainant has also been denied by the doctor concerned. Mere oral assertion is not sufficient to come to a conclusion that the said sum of Rs. 50,000/- was given by the OP No.1 admitting his fault. If any document or copy of the said document be placed before this Forum truth would come out as to why such sum was given to the husband of the complainant alleging admission of the guilty on the part of the doctor concerned. So, such case of the complainant is not at all entertainable being not proved.
Considering all the facts and circumstances in the light of the reasoning as reflected hereinbefore this Forum is of the view that the complainant has failed to establish the case of the medical negligence against the OPs by cogent, oral and documentary evidence. Therefore, the case of the complainant fails.
In the result, the case fails.
Hence, it is
O R D E R E D
That the Consumer Case No.102/S/2009 is dismissed on contest against the OPs but without cost.
Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.
