By : SMT BANDANA ROY, PRESIDENT

          The case of the complainant herein in brief is that she came to the chamber of Dr. M. Hossain at Contai to check up her pregnancy. Dr. advised her for USG test. As per such advice the complainant came to the chamber of Radio Diagnosist Dr. S. Bag and prepared the report of USG .  On the very date she came to the chamber of Dr.  Hossain with the report who advised her for D/E domb and the abortion of premature death of baby inside the uterus. As such the complainant came to the nursing home of OP no.2 on 27.01.15 and the OP No.1 Dr. M Hossain without any proper investigation of blood and other clinical test completed the operation of the complainant at 11.00 AM on the same day. The complainant disclosed her blood sugar problem but the doctor ignored and made the operation. The complainant alleged that the Operation theatre along with other arrangement of the Nursing Home of the OP No.2 as well as the instruments of operation were all unscientific and not suitable for operation to a blood sugar patient. The OP no1 prescribed medicines after the operation and the complainant took the dose as per advice of the doctor but was feeling several problems in her body and also severe post-operative pain in her abdomen. On consultation the doctor again advised to take the same medicine. Till 31.01.2015 when the complainant again came to Dr. M Hossain with several physical problems, he gave only a sleeping pill and some antacid but the condition of the complainant was deteriorating day by day for which she consulted another physician Dr. Tathagata Das. Dr. Das checked the condition of the patient and advised her for consultation with Radiologist Dr. Sunit Kumar Jana and the result of that test was Hepatomegaly, inflammatory Mass in pelvis. Thereafter as per advice of Dr. Das the complainant went to Apolo Gleneagles Hospital, Kolkata and got there admitted on 08.02.15 under Dr. Arnab Basak. Dr. Basak  at Apollo Gleneageal Hospital completed treatment of the complainant from 08.0215 to 20.02.15 and discharged her. The complainant is suffering from mental agony and also they had to incur heavy amount of money for the treatment, harassment and negligent act of the OP No.1 and OP No.2.

Under the above premises, the complainant has filed this complaint before this Forum for proper reliefs.

          Both the Opposite parties entered into appearance by filing joint written version. They denied all the material allegations made against them in the complaint petition. It is the specific case of the OPs that OP no. 1 treated the complainant lastly on 31.901.2015 and thereafter she got treated at different institutions by different doctors.  It is contended by the OPs that Dilatation and Curettage treatment (D/E) is the universally accepted medical procedure and the most appropriate treatment for Intra uterine Embryonic Demise which is completely an Outpatient procedure. This patient never got admitted in the Nursing Home of the O P No.2. It is also contended by the OPs in their written version that the D/E procedure as adopted by the OP no.1 involves Dilatation of the cervix and surgical removal of the part of lining of the uterus and / or contents of the uterus by scraping and scooping. It is a therapeutic gynecological procedure as well as the most often used method for first trimester abortion.  It was successfully done by OP No1 at the minor OT of OP no.2. It is also contended that the procedure adopted in the operation need not any test of blood sugar etc.  The OPs averred that the complaint made by the complainant before one Kontai Kreta Suraksha Samity was completely different from that of the present complaint before this Forum. In the prior complaint the complainant or her husband averred that “there were remains inside the uterus which caused post/aortal sepsis” but here the averments are completely different. OPs would like to state that from the subsequent treatment papers and discharge certificate of the patient it is crystal clear that the OP no.1 had done curettage properly as findings of USG done by Dr. Sunit Kumar Jana on 07.02.15 which establishes that uterine cavity is empty and subsequent USG done by Apollo Hospitals on 09.02.15 says Endometrial echo line is central in position, endometrium is thin, the cervix appears normal and this report is consistent with the report of OP No.2.

           It is further contended by the OP no 1 that they treated the patient to the best of his ability and skill and they had no deficiency of service in the treatment and so, the complaint is liable to be dismissed.

           The points for consideration in the case is whether the complainant is entitled to get any relief or reliefs as prayed in the complaint petition.

Decision with Reasons

          We have perused all the documents filed by the complainant in support of her contention. Annexure A is the prescription suggested by the OP no.1 and Annexure B is the copy of report of USG Clinic dated 23.01.15. Admittedly the complainant visited the chamber of OP no.1 on22.01.15. Admittedly the complainant had complain of amenorrhea of about 3.5 months and that past history of laparoscopic myomectomy.  OPs stated in paragraph 7of their written version  that examination of urine for HCG of the complainant was found positive It was also stated that there  she was carrying several prior test results and reports of her which reflected otherwise normal condition. In para 8 of the written version OP s stated that the complainant came in the chamber of the OP no.1 on 23.01.15 is a blatant lie. OPs alleged that  the patient came to the chamber of the OP no.1 only on 27.02.15 along with USG report dated 23.01.15 done by one Dr. S Bag MBBS MD (Radiologist) and the impression  of the said report was IUED ( Intra Uterine Embryonic Demise)  at about 8 weeks 06 days of gestation. According to the OPs the Dilatation an Curettage treatment is the universally accepted medical procedure and the most appropriate treatment for IUSD which is completely an outpatient procedure.  Ops stated that OP no.2 did not keep all records of treatment including records of operation theatre as alleged in the complaint petition are false and concocted statement of the complainant.

          The complainant alleged that she is a high diabetic patient but the OP no1 without investigating the limit of blood sugar operated the complainant and for that reason the complainant suffered serious physical injury. On the other hand the OPs submitted that the procedure adopted by the OP no1. Involves dilatation (widening/opening ) of the curvix and surgical removal  of the part of lining of the uterus  and their contents of the uterus by scrapping and scooping . OPs further stated that it is a therapeutic gynecological procedure as well as the most often used method for first trimester abortion.

          We have gone through the Annexure A carefully and it appears that OP 1 suggested some medicines to the complainant including acidities but OP 1 did not suggest to test the blood sugar of the complainant though Ops admitted in para 10 of their written version that procedure of abortion was widening and opening of the cervix and surgical removal of part of lining of the uterus. It is a common law that before any surgery doctors must prescribe the test of blood of the patient. The complainant alleged that the complainant stated to the OP no.1 that she is a patient of high blood sugar but in spite of that her blood sugar was not checked before using the dilation method by th4e OP no.1. It is a common procedure that even if the patient is not diabetic then also report of blood sugar  and other testsare required before cutting any part of the body. Admittedly there is no treatment record   of the OP no.2 which is illegal. 

          Ld. Lawyer for the OP no.2 argued that as it is a simple procedure of operation no treatment course is required to be written or keeping records of the same in the nursing home.

          This argument cannot be sustained and the argument of the OP no.1 is admittedly illegal.

          It is very much established that the complainant is a blood sugar patient but the doctor as OP no.1 ignored the said matter without seeking any test report from the complainant. The complainant alleged that the operation theatre of the Nursing Home and the doctors’ instrument was quite unscientific and unhygienic for a blood sugar patient. Though OPs challenged this allegation but they could not provide any cogent evidence to show that the instruments of the OP no.2 were scientific. The complainant admittedly went to Dr. Tathagata Das on 06.02.15 along with the past investigation reports and all clinical impressions. He duly examined the complainant and from Annexure C it appears that he prescribed medicines and complainant also went to Susrut Imaging Clinic where she made USG of whole abdomen. It appears impression in that report   Annexure D which suggested complainant suffering from hepatomegaly an inflammatory mass in pelvis. On 24.01.15 the complainant made USG of uterus of adnexa. The impression was gravid uterus contains a gestational SC with an Embryo of maturity 8 weeks 3 days. It was suggested to follow up scan after two weeks. It appears from the documents that the complainant did various tests and from Annexure H it appears that she was also a patient of thyroid.  From the discharge summary Annexure I it appears that the date of discharge was 20.02.15 and final diagnosis was PELVIC ASESS FOLLOWING POSTABORTAL SEPSIS, 2. TYPE II DIABETES MELLITUS – POOR GLYCEMIC CONTROLL AND 3. HYPOTHYRODISM. From the discharge summary it also appears “ Mrs.Moulisa Sikdar , 29 Years old lady , post-operative day 12 of dilatation and curettage on 27.01.15. presented with the complaints of lower  abdominal pain since 28.01.15. She also had complaints of frequent urination since 28.01.15 which was associated with passing mucoid stool for last 5 days. She was consulted to a local practitioner, received medical management but symptoms not settled. Now she has been admitted for evaluation and management. On admission, relevant investigations were sent. USG (whole abdomen) was suggestive of echogenic collection in pelvis (one in pouch of Douglas and the other one anterior to uterus). Hence,  she underwent diagnostic laparoscopy followed by aspiration of pelvic absess with adhesiolysis with enterolysis and peritoneal lavage under general anesthesia on 10.02.15. she was also referred to Dr. Sudhir Ray  for her glycemic control and his advice followed. Postoperatively, she was started TPN. She passed stool on the 4^th post-operative day and oral feeding was started thereafter. TPN was withdrawn gradually. Now she is being discharged in a clinically stable condition with following advice…

          In the case of Mathew Jackob Vs. State of Punjab  and another reported in (2005) 6SCC 1 : 2005(3) CPR 70 (SC) the Hon’ble Appex Court while  dealing with negligence hold “ Actionable negligence consists  in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty  of observing ordinary Care and skill, by which neglect the plaintiff has suffered injury to his person or property….the definition involves three constituents of negligence : (1) a legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope  of the duty (2) breach  of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for damage is a necessary ingredient of this tort.

          Both the complainant and OPs are examined and cross-examined. The complainant in her cross-examination denied that she was careless in respect of her pediatric treatment due to which problems as mentioned in the final discharge certificate  of Apollo Gleneagles Hospital i.e  poor glymic control  was noticed.  It may be mentioned that this Forum called for Expert reports and reports submitted by Dr. Malay Patra, Dy. CMOH, Dr Aditya Chatterjee, ACMOH Tamluk, Dr.Shib  Sankar Dey, MO (Ortho) and Dr. Amiya Bhusan Sarkar MO (Gynae) . Said doctors stated in the report that the proprietor of Charu Chandra Nursing Home where the patient was operated n OPD basis did not maintain any record  and they observed that (1) No routine investigations are advised by Dr. Hossain except USG. (2)  No advice for follow up visit was given. (3) the patient was diagnosed Hepatomegaly and inflammatory mass pelvis by Dr. Tathagata Das and he referred the patient  to Apollo Gleneagles Hospital Kolkata  She was diagnosed as a case of pelvic abscess following post abortal sepsis and (4) the documents of OT  are not available from the proprietor of the Nursing Home. The opinion of the physicians was that the patient was suffering from a case  of intra embryonic demise at about 8 weeks  6 days gestation. The patient was operated by Dr. M Hossain following USG without investigation of Blood for Sugar.  The patient was operated by Dr. M Hossain following USG without investigation of blood for sugar. The authority of Charu Chandra Nursing Home the OP no.2 must maintain all records of treatment including records in operation theatre. The complications which arose following D & E could have been avoided if routine investigations were done.

          To nullify this report nothing has been filed on behalf of the OPs that there was no negligence on their part for the treatment of the patient.

          PW-2 the General Manager of the Appolo Hospital deposed in this case.

          OP nos. 1 and 2 deposed individually.                          

          We have perused the Annexure I and it appears that the patient was admitted on 08.02.15 in Appolo Gleneagles Hospital under Dr. Arnab Bosak for gynecological treatment. Dr. Bose mentioned that  Diagnosistic  laprospic follows  by aspiration of pelvic abscess  and drainage of gynecology. Dr. after proper investigation mentioned in the report that the complainant’s case is “post curetetal sepsis” and started with adhesiolysis with enterolysis and peritoneal lavage done under general anesthesia. The Senior Consultant of Apollo Hospital Dr. Basak completed the complainant’s proper treatment from 089.02.15 to 20.02.15 in the said hospital and discharged the complainant with proper advise and prescribed some medicine in his prescription. The said discharge summary of Apollo hospital is Annexure 1 in the case.

          From the written argument of the OPs it appears that  the OPs have stated  that the complainant filed this case only to harass and impleaded the OP No.2 Nursing Home by hook or by crook; they have alleged  that the dilatation and curettage treatment is the universally accepted medical procedure and the moist appropriate treatment  for instar uterine Embryonic Demise, which is completely on outpatient procedure.  The OPs   have filed  literature  on  Harrison’s Internal medicine and tried to impress upon this Forum that healthy patient of any age undergoing elective surgical procedure without coexisting medical conditions should not require any testing unless the degree of surgical stress may result in unusual changes from the baseline state.

          We are not agreeable with the submission made by the ld lawyer for the OPs as in the case it is very clear that the complainant suffered abdominal pain seriously after the operation was done. We cannot brush aside the reports submitted by the CMOH and other doctors who have opined that if the blood sugar was investigated then the result would have been different in that case. We may add that a pregnant woman facing the most dire circumstances must be able to count on her doctor to do what is medically necessary to protect her from serious physical harm. Gynecology is the branch of medicine dealing with the female pelvic and urogenital organs, in both the normal and diseased states. It encompasses aspects of Contraception, Abortion and in Vitro Fertilization. Covering the full age range, it is closely related to Obstetrics, while involving aspects of both surgery and phychiatry.                          

 Ld. Lawyer for the OPs. Argued that there is no necessity of keeping any records of Nursing Home regarding this type of case. In this regard we find from the COMMON GUIDELINES FOR NURSING HOME AND HOSPITALS regarding their Role and Liability - the mandatory and legal requirement of maintaining the medical records and handing over a copy of the same for a small fee on request from the patient or his/her ward within 72 hours of such a request being made has been explained. Here an attempt is made to list out the records which are required to be maintained.

1. For OPD patients records of examination, tests and medicines prescribed and treatment suggested with the patient identity number along with the  and time of examination.
2. Record of admission: Name and address of the patient, contact number, telephone number, nature of illness, name of the doctor under whose care patient is admitted, fees received, date and times of admission etc.
3. History of the disease as given by the patient or his/her attendants, the name of the ward to which his/her being admitted etc.
4. Medicines and tests prescribed and the reports of the tests.
5. Names of the consultants and other doctors who examined the patient and their diagnosis.
6. Valid informed consent obtained in writing for treatment or surgery,
7. If surgery is performed the notes of the Anesthesiologist, notes or surgery and post-surgery notes, blood transfused etc.

      h.  Daily progress charts of the surgeon and other doctors,

1. Nurses diary indicting details of temperature, pulse, BP, sugar, medicines and injections administered etc.
10. Observations of external consultants.
11. In case of ICU, CCU, etc additional records are required to be maintained,
12. In labour cases labour progress records, obstratricians and nurses records, pediatric records etc. have to be maintained.
13. Some hospitals and Nursing Home keep vedio records of high risk surgeries.

So, the argument of the ld lawyer for the OPs that the OP No.2 has no liability in keeping the documents of the patient is not sustainable and for the aforesaid reasons the OP No.2 Nursing Home has not only made unfair trade practice but also committed an criminal offense. So, we think that the OP No.2 has the maximum liability to pay the compensation to the complainant for her physical problem. In view of the aforesaid discussions we think that the OP should pay the maximum compensation.

The complainant has prayed for hospital bill of Rs. 3,32,000/- and other fees totaling Rs. 9,00,800/-for compensation. The complainant has produced the bills to show that she has incurred Rs. 3, 32,000/- for her treatment.  The evidence as reproduced above leads no doubt that OPs 1 and 2 were deficient in discharging their duties. Admittedly they did not investigate the blood sugar label of the patient and for the hasty operation  the pelvic abscess was formed in the abdomen or private parts of the complainant which is admitted by the experts in their opinion. Hence we are of the view that it is a case of gross medical negligence by which the complainant suffered and spend a huge money after admitting herself in the Apollo Gleneagles hospital. But considering the stable condition of the complainant now the purpose of justice will be proper if we impose compensation of Rs. 3,00,000/- and also an amount of Rs.  20,000/- to the complainant as litigation cost.

Hence, it is

O R D E R E D

That the complaint case being No 86 of 2015 be and the same is allowed in favour of the complainant on contest against the OPs.

The OP No.1 is directed to pay Rs 1.00,000/- and the OP NO.2 is directed to pay a sum of Rs. 2,00,000/- to the complainant within 30 days from the date of this order together with  a sum of Rs. 20,000/- as litigation cost at the rate of Rs. 10,000/- each within one month from the date of this order failing which the OPs shall be liable to pay Rs 200/- per diem as punitive charge which would be  payable to Consumer Welfare Fund.

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