For the Appellant           :  Mr. Abinash Kumar Mishra, Advocate &

                                         Mr. Prabir Guha Roy, Advocate

For the Respondents       :  Mr. Partha Sil, Advocate with

   Mr. Tavish Bhushan Prasad, Advocate for R-1 & 2

Pronounced on: 01^st December 2022 

ORDER

DR. S. M. KANTIKAR, PRESIDING MEMBER

1.       The Appellants have filed the instant Appeal under section 19 of the Consumer Protection Act, 1986 (in short “the Act”), against the Order dated 29.10.2013 passed by the State Consumer Disputes Redressal Commission, West Bengal at Kolkata (hereinafter referred to as the “State Commission”) in Consumer Complaint No. 17 of 2010, wherein the State Commission, dismissed the Complaint filed by the Complainants (Appellants herein).

Brief Facts:-

2.       Brief facts are that on 14/01/2004, the Complainant’s husband - Mr. Prabir Kumar Das met with road accident at about 11.15 p.m. On 15/01/2004 he was taken to the Calcutta Medical Research Institute (CMRI)- the OP-2 hospital in an unconscious state with hip injury, facial injuries. He was immediately admitted to ICCU and he remained there for 12 weeks. The Orthopaedic Surgeon Dr. Kanchan Bhattacharyya (OP-1), attached to the hospital was called for the treatment. The patient was gradually improving, and he was able to walk with support, but there was severe pain in his left hip region and he had poor mental alertness. He was discharged from the hospital on 29/05/2004 with the advice for ‘Total Hip Replacement’ (THR) Surgery after two months. He was called for follow-up and kept under constant care of OP-1. But, no satisfactory improvement in the physical or mental condition of the patient OP-1 advised for THR. Therefore, on 08/09/2004, OP-1 readmitted the patient in OP-2 Hospital and the THR surgery was performed by OP-1 on 13/09/04 by putting uncemented cup with two screw and one linear. After THR surgery the patient suffered severe pain in the left hip area but the OP-1 assured that it would subside in due course as it was due to the operation. The doctor prescribed different medicines and extensive physiotherapy. It was alleged that after a month on 13/10/2004 the patient was discharged from the hospital in bed ridden condition with severe pain in left hip region. Further the patient totally lost his ability to get up from the bed without support.  Even though, the Complainant reposed confidence on OP-1 and continued the patient to visit the Opposite Parties till 23/07/2005. It was alleged that on 23/07/2005 OP No.1 gone abroad for a long period ignoring the condition of the patient and without making any alternative arrangement for the treatment in case of any emergency. Being worried with the condition of the patient, the Complainant took her husband (patient) in the 3^rd week of August 2005 to Dr. R. Gopal Krishnan at Apollo Hospital, Chennai. At the first consultation it was diagnosed as severe infection due to loosened acetabular cup. The patient was advised immediate operation for removal of the uncemented implanted cup by OP-1 to save the patient from amputation. The decision of Dr. Gopal Krishnan was affirmed by Prof. Dr. P.V.A. Mohandas of MIOT Hospital, Chennai. On 18/10/05 the patient was operated for removal of Implant and discharged on 12/11/2005. After the operation the pain subsided, but the other symptoms remained unchanged like restricted movement, the patient could not get up from bed without help and he was completely confined to bed with mental depression. Therefore, on medical grounds due to his disability he was terminated from the service on 10/12/2006. Thereafter, the Complainant contacted Dr. N. B. Sen Chaudhuri on 12/09/2009. He affirmed the failed previous operation and suggested revision surgery THR in two stages. He also informed that such revision surgery was not possible in India, therefore suggested to get it done from Orthopaedic Surgeon Prof. Dr. Wolfang Schwageral at Vienna, Austria. The   estimated cost was about 55,000 UK pounds [approx. Rs. 40,14,000/-]. The Complainant further submitted that her husband being an Executive Engineer of the Government of West Bengal drawing handsome salary was terminated from service due to his disability. His normal retirement was due on 31/05/12 and due to premature termination suffered severe financial loss. Being aggrieved the Complainant filed a Consumer Complaint before the State Commission and prayed compensation of Rs. 96,22,252/- and Rs. 8,000/- to Rs.10,000/- per month for physiotherapy, medicines, and regular charges of doctors. 

3.       The OPs filed their written versions and denied their negligence during the treatment. It was submitted that the Complaint was barred by limitation. The Patient was operated for THR on 13.09.2004 and was discharged from OP-2, Hospital on 13.10.2004, and thereafter the patient was last treated by the OP-2 on 23.07.2005. The Complaint was filed on 25.03.2010 nearly after 5 years.

4.       After hearing both sides and on perusal of the material on record, the State Commission opined that the Complainant has failed to prove the allegation raised in the petition of complaint against the OPs, therefore, dismissed the complaint.

5.       Being unsatisfied by the impugned Order the Appellant-Complainant filed the instant Appeal.

6.       We have heard the learned Counsel for both the sides and perused the material on record.

7.       The learned counsel for Complainant submitted that as per the opinion of Dr. Sen Chaudhuri, OP-1 was negligent who failed to discharge his duty as per the reasonable standards. The OP-1 ought to have been more careful while conducting THR a major operation and it should be avoided when the patient's condition was not suitable. The patient was required to be mentally/neurologically in stable condition before the surgery. The OP-1 failed to consider other available options like (a) Arthrodesis or Fusion (b) Girdle stone arthroplasty. Thus, the State Commission wrongly upheld the vague version of OP-1.

8.       The learned Counsel for the Opposite Parties argued that the patient expired on 12.06.2015 during the pendency of the present Appeal. Therefore, the present proceedings have been abated with death of Patient as it was a tortious liability of personal injuries. The said injury was not a cause to his death. Therefore, the patient’s wife has no locus standi to file the instant appeal.

9.      We have gone through the medical literature on THR surgery. It is evident from the treatment record that the OP-1 performed the operation on 13.09.2004 after taking opinion from specialist doctors. It was performed as per the reasonable standards. The complication was detected subsequently in August, 2005, i.e. after about 11 months of the operation. Moreover, the patient was taken to Chennai and on 18/10/2015 the implant was removed. Dr. R. Gopalkrishnan and Dr. Mohandas at Chennai have not commented about any wrong procedure or timing of THR performed by OP-1 or any deficiencies from the OP-2 hospital. 

10.     In our considered view, the allegation of the Complainant about infection in the operated area cannot ipso facto be attributed to the surgery done by OP-1. There was huge gap of 11 months, could not attribute to the proximal cause due to the THR operation. We further note that the OP-1 left for abroad and during his absence he was treated by Dr. T N. Sarkar after 23.07.2005. Thus it was not deficiency in service from the hospital.

11.     We have perused four Expert Evidences filed on behalf of the OP-1. The experts were namely Dr. Samar Kr. Mukherjee, Dr. D.P. Bakshi, Dr. Tapan Kumar Maitra and Dr. Deb Kumar Mukherji.

All experts have deposed that the OP-1 has treated the patient as per existing standard medical norms and there was no negligence on his part. They have also opined that THR was 1^st choice and one of the alternative mode of treatment in the present case.

12.     In the catena of judgments, the Hon’ble Supreme Court laid down the law what constitutes medical negligence. In Jacob Mathew’s case[1], it was held as under:

"When  a  patient  dies  or  suffers  some  mishap,  there  is  a  tendency to blame the doctor for  this.  Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case  in  his  professional  career but surely  he  cannot be  penalized for  losing  a  case  provided  he appeared in it and made his submissions."

13.     In another case, Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Ors.[2], whereby Hon’ble Supreme Court held in paragraphs 32 and 34 of judgment as below:

32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[3], this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. This Court held as under:

“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”

34. Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others[4] held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence.

14.     Recently, in the case of Dr. (Mrs.) Chandarani Akhouri & Ors V Dr. M. A. Methusethupathi & Ors.[5], the Hon’ble Supreme Court held in para (27) that:

27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

15.     Based on the discussion above and the precedent of the Hon’ble Supreme Court, we do not find any negligence from the treating doctor OP-1 and no deficiency from the OP-2 Hospital. It was accepted standard of reasonable duty of care during the THR Surgery. Accordingly, the reasoned Order of the State Commission is affirmed. The instant Appeal is devoid of merit, and the same stands dismissed.

There shall be no Order as to costs.