By : SMT. BANDANA ROY, PRESIDENT
The case of the complainant in brief is that she was suffering from pain in abdomen and she visited Dr. S. Panigrahi for consultation and said Doctor advised the complainant for USG test. OP No. 1 is the doctor who is MBBS MS (Cal) attached with the OP No. 4, Maa Sarada nursing Home and OP no. 2 and 3 are the proprietors/owners of the OP No. 4 Nursing Home. Further case of the complainant is that as per advise of said doctor S. Panigrahi she went to Susurut Imagine Clinic, Contai on 11.08.15 for USG test of her whole abdomen. Dr. S. Jana the consultant Radiologist examined the complainant and prepared the report regarding the USG of whole abdomen. The complainant visited Dr. Panigrahi with the report for its examination and doctor suggested the complainant to consult with a surgeon regarding her treatment. Thereafter the complainant consulted with the OP No.1 Dr. S. Kala and he examined the complainant and the USG report. After such examination he prescribed that the patient had been suffering from apprentices and gallbladder stone and he advised for some bio - chemical examination, blood examination, urine and other relevant examinations on 15.08.15 and after all such examinations, the OP 1 suggested for operation of the complainant on the next date on 16.08.15. Accordingly the complainant was admitted by her son Himadri Giri for appendicitis and gall bloodier operation at OP no.4 Nursing Home under the treatment of OP No.1. After the operation OP no.1 removed the gallbladder from the abdomen of the petitioner and also operated the appendicitis. The complainant alleged that at the time of said operation the OP no.1 and other staff of OP no.4 were very casual in attitude in the OT and they were joking in between themselves and they had gross negligence during the operation period. The complainant further alleged that the operation by the OPs was not proper service and they did not provide proper treatment to the complainant. Quality of medicine was very low and the OPs did not follow medical science properly. After seven days of the operation one untrained sister of OP 4 removed the leuplast from the stitched portion and found that all stiches were opened position due to infection and said portion was damaged due to lack of service and proper treatment. Due to infection said portion got damaged due to lack of service and proper treatment. As a result this type of crisis occurred. Further allegation of the complainant is that after operation the OP no.1 did not dress the stitched up portion of the abdomen till 23.08.15 and on 27.08.15 the OP no1 and staff of OP no.4 for the second time stitched said portion of the abdomen of the complainant and discharged her on 28.08.15 from the OP no. 4 Nursing Home. The complainant informed the OP No.1 regarding the post operation problems and illness but the OPs were not ready in listening anything from the complainant and lastly they discharged the complainant from the nursing home on 28.08.15 with ill health condition. After being discharged from the Nursing Home the complainant informed about her health condition to the OP-1 on 08.09.15, 18.10.15 and other several times and visited his chamber for checkup and informed him regarding the illness, physical condition, swelling in abdomen etc but the OP No.1 disclosed that the position of the operated portion was OK and took no steps or did not examine the portion or did not give any further advice. The complainant being dissatisfied with the behavior and activities of the OPs due to her ill health condition consulted Dr. S Patra MBBS MS, (Cal) on 01.11.15 and said doctor advised the complainant for USG examination. The petitioner got her USG test done on 02.11.15 at Sushruta Imagine Clinic, Contai under Dr. Sunit Kumar Jana and he prepared report regarding USG of upper abdomen with parietal swelling. After completion of the USG test the complainant consulted with Dr. S. Patra and after examining her and the USG report said doctor declared that the complainant had been suffering from Incisional Hernia and he advised for proper treatment. Thereafter on 06.01.15 the complainant visited the doctor of Surgery at SSKM hospital, Calcutta and doctor suggested the disease as Incisional Hernia and advised for various examination/test for operation. On 20.01.16 Prof. Dr. M.L. Saha of OPD Department, SSKM Hospital examined the petitioner and on 27.01.16 pre anesthetic assessment was done by the Doctor. On 16.03.16 the claimant/petitioner got admitted for Harnia operation at SSKM Hospital and operation was done on 18.03.16 and she was discharged from SSKM Hospital on 213.03.16. According to the complainant due to negligence and deficiency of proper treatment she faced such critical problem and she became victimized as a result of such kind of mal - treatment made by the OP No.1 in the OP no.4 nursing home. The petitioner paid total Rs. 14,000/- on 22.11.15 to OP no. 4 and got money receipt no. 923 dated 22.11.2015. For Redressal of the grievance the complainant’s husband lodged a complaint before the AD of CA & FBP Purba Medinipur on 04.03.16 against the OPs but they have not taken any steps in the matter. Rather on receipt of the letter from office of the AD of CA & FBP, the OPs through their lawyer one Santanu Hota threatened the complainant and created pressure for withdrawing the complaint from the office of the AD of CA & FBP.
The complainant has lastly filed this petition of complainant against the OPs praying for reliefs as prayed in the therein for the unnecessary harassment, wrong treatment and deficiency of service and lack of post-operative treatment by the OPs.
The OP no.1 Dr. Snehansu Kala has contested the instant complaint case by filing written version. He has stated in the written version that he is a surgeon being qualified MBBS MS (Cal) and is rendering his qualified and experienced medical service to numerous patients since long. The specific defence of this OP is that as per medical science an incisional hernia is another most common and utmost known complication which involves the incomplete healing of a surgical wound. Among the most known causes of an incisional hernia, the following factors are well known and those are-
- Poor wound are by the patient herself,
- Infection,
- overexertion,
- poor lifting techniques,
- Internal pressure from hard coughing or staining)
- obesity,
- Pregnancy and
- Having bowel movement etc.
The OP no1 was always eager to show his deep feelings and sympathy towards his patients and there was no sort of medical negligence on his part in treating the complainant.
The OP no. has prayed for dismissal of the application being vexatious and imaginary.
The OPs No.2, 3 and 4 also jointly submitted written version and alleged that there was no medical negligence and deficiency of service in the operation of the complainant on the part of these Opposite Parties. These OPs have prayed for dismissal of the complaint petition with costs. The OPs have stated that in such type of major operation there may be chance of secondary infection which depends on so many factors such as how she maintains hygiene, her immunity power was built up and the patient should have maintained the instructions of the doctor. The incision hernia may occur to any person in this type of major operation. The nursing home or the para medical staff should not be blamed for this unfortunate event.
All the parties have also filed separate written notes on arguments.
The points for consideration in the case is 1) whether the application is maintainable and 2) whether the complainant/petitioner is entitled to get the reliefs as prayed for ?
Decision with Reasons.
Both the points are taken up together for consideration for the sake of convenience and brevity.
We have carefully gone through all the reports filed by the complainant and the written version of the OP No. 2,3 and 4 supported by affidavit.
Ld. Advocate for the OPs referred several decisions in support of the case of the OPs amongst those 2014 (3) CPR 430 (NC), wherein it has been held that post operative complications do not always show medical negligence; (2009) (3) CPR 257 (SC) wherein it has been held that Consumer Protection Act, 1986- Section 21 (1) and 23 Medical Negligence, onus lies largely on the complainant . This onus can be discharged by leading cogent evidence – It is the obligation of the complainant to provide facta probanda as well as facta probentia. (2007) (CPJ) 235 (NC) wherein it has been held Consumer Protection Act 1986, Section 2(1)(g) Medical Negligence –Surgery—Alleged negligence caused due to post-operative services—Complaint—compensation awarded—Hence Appeal—Complainant discharged on 24.04.1996—Further, complainant never approached any phys8cianor doctor for treatment until 01.08.1=96 –Report dated 01.08.96 showed infection healed up—Said report misread by State Commission—Incorrect conclusion drawn—No expert evidence produced by complainant for alleged negligence—Onus lies on complainant to prove same—Order of State Commission unsustainable.
We have carefully gone through all the cited decisions referred by the OPs.
The complainant alleges negligence of OP no.1 in treating her. It appears after careful scrutiny of the medical reports that complainant went to the OP no.1 with pain in the abdomen and OP no.1 suggested her for USG of whole abdomen. Accordingly the complainant on 11.08.15 did USG of whole abdomen. On perusing the report of USG of whole abdomen of Dr. S. K. Jana Consultant Radiologist of Susurit imagine Clinic, the OP No.1 conducted the operation of the complainant. It appears from the report of that doctor Jana - cholithiasis. Dr. Jana also found gall bladder of the complainant is normally distended, wall is of normal thickness, Multiple mobile calculi are in gall bladder. OP no 1 examined the report and admittedly the OP No 1 conducted the operation of complainant and removed the gall bladder from the abdomen of the complainant. According to the complainant thereafter she felt post-operative problems and she makes the OPs responsible for that post-operative complaints. Thereafter she met with one Doctor S. Patra MBBS MS ( Cal) on 01.11.15 and said consultant advised the petitioner for USG examination. On 02.11.15 the complainant made USG at Sushruta Imagine Clinic and Dr. Sunit Kumar Jana. From the said USG report it appears that complainant was suffering from incisional hernia and he advised for proper treatment. On 06.11.15 doctor of SSSKM Hospital Calcutta suggested operation, the complainant got admitted in SSKM Hospital on 16.03.16 and operation of the complainant was done on 18.03.16 and she was discharged on 23.03.16 from the SSSKM Hospital.
After carefully going through the medical reports of the complainant it appears that one Dr S. K. Jana though made the USG of whole abdomen of the complainant but his diagnosis report was not correct; he found only stuff in the gall bladder and also appendicitis and on the basis of that report OP no.1 conducted the operation of complainant and removed the gall bladder and also operated the appendicitis. So, OP no1 or OP Nos. 2 to 4 can not be said that they were negligent in conducting operation of the complainant because actually the report of Sr. SK Jana was partly correct. We do not find any negligence of the OPs in this regard. The same Doctor S K. Jana conducted the USG test of whole abdomen of the complainant with parietal swelling. He on 02.011.15 found gall bladder is not demonstrated (H/O – Operation) high resolution sonography shows large ventral hernia along incisional line at right hypothendrium. Harnia sack contains gut loops. Dynamic sca shows presence of cough impulse. The impression was 1) Absent Gall Bladder and 2) Large Incisional Hernia.
It appears that this Doctor at the time of USG test of whole abdomen of the complainant made the report was otherwise and when he conducted the USG of the upper portion of abdomen his report shows large incisional hernia. So, whatever negligence has been done was done by Dr. S.K. Jana who is not a OP in this case. OP No. 2 and 3 admittedly the owner and proprietors of the Maa Sarada Nursing Home though can not be held liable for negligence ion medical treatment. The complainant has failed lto prove by cogent evidence that Maa Sarada Nursing Home was negligent in operating the complainant. The complainant has alleged that staff of the OP No.4 Nursing Home were very much casual and were joking at each other at the time of operation which cannot be taken as deficiency of service and does not prove any negligence of the doctor OP no. 1 who conducted the operation of the complainant only on the basis of the report of Dr S.K.Jana. The negligence can only be framed against Dr. S. K .Jana who prepared the report Of USG of whole abdomen of the complainant, but complainant failed to make him a party OP in this case. So, though complainant is entitled to get compensation against that doctor but as the complainant has not made him party in this case, no relief can be granted to the complainant.
Hence, it is
O R D E R E D
That the CC No. 99 of 2016 be and the same is dismissed on contest.
No order as to cost is passed.
Let copy of this judgment be supplied to each of the parties free of costs.
