08/08/16

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

This Appeal is directed against the judgment and order passed by Learned District Forum, Howrah in CC 35 of 2012 dismissing the complaint on medical negligence. 

The case of the Complainant/Appellant, in short, is that she has one daughter and one son.  At the time of delivery of the second issue at OP No.2 Sneha Nursing Home the OP No.1 was the Consultant Doctor.  At the time of delivery of the male child being the second issue on 15/03/11 the concerned doctor, that is, OP No.1 advised the Complainant for undergoing ligation operation.  The Complainant’s husband paid the necessary charges and the operation was done.  Thereafter on 11/03/12 the Complainant again became ill and consulted the OP No.1.  The OP No.1 after examining the Complainant diagnosed that the Complainant was a patient suffering from B. coli and prescribed medicines accordingly.  Such finding was made without any pathological test.  After taking the medicines prescribed, the condition of the Complainant became worse and the matter was brought to the notice of OP No.1 who further advised to continue the medicines as prescribed on 11/03/12.  On 12/03/12 and 13/03/12 after taking the medicines the condition of the Complainant became serious and she was taken to Shree Jain Hospital, Howrah and admitted in ITU.  After necessary investigation it was detected that the Complainant became pregnant and there was huge bleeding internally and the Complainant had to go high risk operation.  The Complainant had to incur huge expenditure for the operation which was conducted and ultimately it was detected that the ligation of one out of two tubes was operated earlier and the pregnancy was formed in the second tube.  There was incomplete ligation operation earlier and more or less one and half kg of clotted blood was taken out.  There was negligence on the part of the OP No.1 who failed to exercise reasonable care and skill.  The mode of treatment of OP No.1was wrong and wrong medicines were prescribed on improper diagnosis.  The Complainant at the age of 28 years became victim of improper treatment for which she is still in bedridden condition.  There was deficiency in service on the part of the OPs.       

The Learned Counsel for the Appellant/Complainant has submitted that there was ligation operation on 15/03/11 and one year later the Complainant again conceived.  It is contended that the same doctor who did the ligation operation, prescribed medicines on 11/03/12 when the Complainant approached OP No.1 at the time of severe illness.    It is submitted that at that time no diagnosis was done and no advice was given for undergoing any test.  It is submitted that thereafter the condition of the Complainant became serious and she was admitted in Shree Jain Hospital where it was diagnosed that there was ruptured ectopic pregnancy. 

The Learned Counsel for the Respondent has submitted that O.T. notes were not produced before the Learned District Forum and for one year after ligation operation there was no pregnancy.  It is submitted that it is not a case of medical negligence and the Learned Counsel has referred to the decision reported in I (2008) CPJ 460 (NC) [Lakshmi vs. Director of Medical Services].

We have heard the submission made by both sides and perused the papers on record.  It appears that the ligation operation was done on 15/03/11 and after one year the Complainant again conceived and she consulted OP No.1 for his illness.  The prescription dated 11/03/12 issued by OP No.1 shows that some medicines were prescribed, but no advice was given to the Complainant to undergo any test.  It is the specific case of the Complainant that after taking medicines her condition became worse and the OP No.1 advised the Complainant to continue the medicines prescribed.  On 12/03/12 and 13/03/12 the condition of the Complainant became serious and she was taken to Shree Jain Hospital where the USG was done on 14/03/12.  In the USG report it was clearly mentioned “Tube & Ovary – Ruptured ectopic pregnancy and corpus luteum.”  In the decision reported in IV (2013) CPJ 74 (NC) [St. Stephens Hospital vs. Roshni Devi & Ors.] it was held that where necessary tests were not conducted, there was wrong diagnosis and reasonable care and precaution were not taken and the negligence has been proved.  It is evident from the prescription dated 11/03/12 issued by OP No.1 that there was no diagnosis and no medical test was advised. Even when the Complainant reported her continued illness after taking the prescribed medicines, the OP No.1 advised her to continue the same medicines.  Immediately thereafter the Complainant was taken to Shree Jain Hospital where USG was done showing that there was ruptured ectopic pregnancy.  Under such circumstances, it is clear that no diagnosis was done and improper medicines were prescribed for which the condition of the Complainant became serious.  It shows that the OP No.1 failed to exercise standard skill and care while prescribing medicines for the Complainant.  Herein lies the negligence on the part of the OP No.1.  The Doctrine of Res ipsa loquitur is squarely applicable in the circumstances of the case.  The allegation of medical negligence against OP No.1 of the complaint has been proved.  But so far as OP No.2 Nursing Home is concerned there is no specific allegation against OP No.2 and on perusal of the materials on record, we are of the view that that there was no deficiency in service on the part of the OP No.2 Nursing Home. 

Having heard the Learned Counsel for the parties and on perusal of the papers on record, we are of the considered view that the Complainant is entitled to get compensation of Rs.2,50,000/- and litigation cost of Rs.25,000/- from OP No.1. 

The Appeal is allowed.  The impugned judgment is set aside.  The petition of complaint is allowed against OP No.1 and dismissed against OP No.2 of the complaint.  The OP No.1 of the complaint is directed to pay compensation of Rs.2,50,000/- and litigation cost of Rs.25,000/- to the Complainant within 45 days from the date of passing this order failing which simple interest @ 8% p.a. shall accrue on the aforesaid amount from the date of default till realisation.