1. These are a set of two appeals filed against the Order of MP State Consumer Disputes Redressal Commission passed in CC No.27 of 2002. First Appeal No.369 of 2006 is filed by the Complainants, Phool Chand and his sons against OP Dr. Maya Pathak and others. The counter appeal No.422 of 2006 is filed by the OPs against the Complainant. Initially, Mr. Akash Telang Advocate, appeared on behalf of the appellant/complainant, Phool Chand, on a few occasions. However, in subsequent proceedings the complainant has remained un-represented, despite fresh notices. The OPs have been represented by Dr. Amarnath Gupta. Even on 7.9.2011 i.e. the last date of hearing, no one appeared on behalf of the Complainant. The representative of the OPs was heard.
2. The case of the Complainants before the State Commission pertains to alleged negligence in the post-operative treatment of Mrs. Ganeshi Bai Soni, wife of Complainant No.1 and mother of Complainant Nos.2, 3 and 4. She was 57 years of age, substantially overweight (146 kilo grams), suffered from hypertension and was for sometime suffering from breathlessness and swelling in the feet and the abdomen. On the basis of sonography and CT scan she was diagnosed to have a cyst in the ovary. The operation for removal of the cyst was performed by OP-1- Dr. Maya Pathak at OP-2 hospital on 20.5.2000. The examination of the cystic growth, the uterus and other fluids taken out in the surgery ruled out any possibility of cancer. The presence of any bacterial infection was also allegedly not found.
3. About 10-12 days after the surgery, 1/4th of her stitches were removed. It is alleged that OP-3 had advised against removal of remaining stitches. However, despite it, another 1/4th stitches were removed on the next day itself, which was explained to the Complainant as necessary to allow the pus to drain out. The pain in the stitches and oozing from the wound of surgery continued to increase despite regular dressing and medication. It is alleged that the patient was discharged from OP-2/Ayushman Hospital on 16.6.2000, without her consent and despite her condition of increased pain.
4. Therefore, she had to be admitted on the same day to Sanjeevni Hospital. The pathological examination report of 4.7.2000 showed that infection of staphylococcus bacteria had sat in. Condition of the patient deteriorated gradually and the infection spread to her whole body. On 19.7.2000 she was put on the ventilator by OP-3 and finally died on 22.7.2000 in Sanjeevni Hospital.
5. According to the death certificate, Smt. Ganeshi Bai Soni died due to septicemia. The case of the Complainant was that bacterial infection, which eventually spread to whole body, was caused by failure of the OPs to keep a close watch on the nature of the discharge and lack of proper treatment to arrest spread of bacterial infection.
6. In response to the above, OP-1/Dr. Maya Pathak and OP-2 took the stand that the question of sending samples of discharge from the wound to an outside pathological lab did not arise as Ayushman Hospital itself had a well equipped pathological lab for all routine tests and bacteriology studies. The lab is headed by a qualified pathologist, with postgraduate qualification. According to the OPs, the first dressing of the wound was done on 24.5.2000 and the wound was found to be healthy. The analysis of urine sample of 26.5.2000 revealed presence of e-coli but there were no other clinical symptoms and the patient was already receiving ciprofloxacin. Mild infection of the wound was first noticed on 31.5.2000, which was treated with local antiseptic medication and antibiotics. The drainage decreased gradually and the drain was removed on 5.6.2000.
7. The affidavit of OP-1 also shows that on 07.6.2000 pus was noticed, for the first time. Culture and sensitivity test revealed klebsilla infection, but there was no sign of systemic spread of infection. According to OP-1, pus cells are dead leucocytes, which will be present in any discharge from inflamed tissues. According to OP-1, on 16.6.2000 the patient was stable and was discharged on the request of her husband.
8. The State Commission noted that along with large ovarian tumor removed in the surgery 20.5.2000, total hysterectomy was also performed on the patient. The report of the next day i.e. 21.5.2000, did not indicate any infection while the report 5 days later of 26.5.2000 showed that e-coli infection had already set in. The Commission has referred to the Bed Head Ticket (BHT), according to which the patient had been complaining since 4-5 days after the surgery about pain in the abdomen and stitches. The affidavit of OP-1 itself refers to mild infection of the wound being noticed on 31.5.2000 and presence of pus on 7.6.2000. But the discharge from the wound was sent for culture and sensitivity analysis only on 10.6.2000.
9. The BHT also refers to the patient complaining about pain and burning around the urinary area on 4.6.2000 and discharge from the wound on 5.6.2000 also burning in the abdomen on 7.6.2000 when OP-1 advised pus culture and sensitivity test. In this background, the Commission has not accepted the claim of the OPs that the patient was discharged on own requests. It has noted that the discharge certificate also does not mention that it was on request and against medical advice. The Commission has concluded that heart and renal failure, which eventually became the cause of death, were actually caused by spread of septicemia. Had the patient been given timely and proper treatment for the bacterial infection which caused septicemia, it would not have spread to the whole body and would not have caused systems failure. The Commission has observed that if the persistent complaint of the patient, about pain in the stitches, had been properly got investigated, the bacterial infection could have been checked. OP-3 observed mild infection on 31.5.2000, but the analysis of discharge was done only one week thereafter.
10. OP-1 has claimed that the doctors were successful in keeping the infection at bay for more than six weeks after the surgery. This in itself implies that there was no shortcoming in precautions taken or in following the protocols. This is not borne out from the facts, as submitted by the OPs themselves. In the appeal memorandum of the OPs reference has been made to specific dates, in relation of the developments in the condition of the patient. It is accepted that mild infection of the wound was noticed on 31.5.2000. Details also show that on 5.6.2000 the drainage was removed as it had got blocked and the wound was partially opened, to allow free drainage. On 7.6.2000, pus from the wound was noticed for the first time. The culture and sensitivity report of 9.6.2000 indicated the presence of klebsiella bacteria infection. Between 10.6.2000 and 15.6.2000 the patient is mentioned to have had mild fever. It is thus clear that on 16.6.2000, when the patient was discharged from OP-2 hospital, the wound was in an infected state, discharge from it was high, bacterial infection had set in and the patient was running temperature. It needs to be added that the OPs themselves accept that secondary suturing of the wound, with reinsertion of the drainage tube, was done only on 23.6.2000. This shows that the patient was discharged with an open wound and in a condition that required her to be admitted to another hospital on the same day.
11. These details regarding the condition of the patient are enough in themselves to raise serious doubts about acceptability of claim of the OPs that the patient was discharged on request. The State Commission has pointed out that there is nothing in the discharge certificate to show that it was against medical advice or on the request of the patient. We therefore are in full agreement with the conclusion of the State Commission on this point.
12. It is claimed by the appellants that the culture report of 26.6.2000 and blood report of 29.6.2000 showed that the bacterial infection had been cured and the culture was found to be sterile. However, the report of 4.7.2000 indicated the presence of Staphylococcus Aureus, which is described by them as the most opportunistic bacteria. On 7.7.2000 the patient complained of vomit and pain in the abdomen. Therefore, complete blood profile was ordered by OP-3 Dr. Ravi Gupta, which revealed sign of infection in the blood. The blood report of 19.7.2000 showed that it was septicemia. The patient was shifted to Chirayu hospital where she died on 22.7.2000.
13. The main ground of challenge against the impugned order that the State Commission has failed to apply the Bolam test, which is applied by Supreme Court of India in cases of medical negligence. In Martin D’Souza Vs. Mohd. Ishfaq 2009 (3) SCC 1, the Bolam test has been summarized by the Apex Court as follows:-
“From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of a polymath and prophet.”
14. It follows from the above that a professional man may be held liable for negligence on one of the two findings; either that he did not possess the requisite 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. The standard to be applied would be that of an ordinary competent person, exercising ordinary skill in that profession.
15. In the case before us the question is not about lack of professional skill or qualification of the OPs. The question is whether they exercised their professional skills with reasonable competence. The evidence produced before the State Commission shows that they did not, as is evident from the fact—
a. that the patient was discharged on 16.6.2000 with an open surgical wound;
b. that the investigation reports, prior to her discharge, which was available with the Ops, showed that the surgical wound was infected with klebsilla bacteria and pus was oozing from it;
c. that the OPs were aware that the patient being an obese person, likelihood of discharge from the wound was much more due to what was described by them as fat lysis;
d. that for six days before her discharge the patient was running fever, which was a clear clinical symptom of uncured infection;
e. that no evidence was led before the State Commission to show that the infection had healed before her discharge;
f. that it was not a case where the patient had left against medical advice;
g. that in the professional assessment of the OPs, the patient was a high risk patient, in view of her obesity and no physical activity of the last two months. There was therefore need to be much more careful in her case. But sadly, she died not due to any of the anticipated complications but due to bacterial infection which finally led to septicemia.
16. We are therefore in agreement with the conclusion of the State Commission that had bacterial infection been controlled in a timely manner it would not have led to septicemia which eventually caused the death of the patient. The appeal of the OPs is therefore dismissed for want of merit. The appeal of the complainant for enhancement of the quantum of compensation is dismissed for want of substantiation of the claim. In the result, the impugned order of the MP Consumer Disputes Redressal Commission is confirmed. The parties shall bear their own costs. | 
