Ld Advocate for the parties are present. Judgement is ready and it is pronounced in open Commission in 7 pages in 4 seperate sheets of paper. 

By – SAURAV CHANDRA, MEMBER

1. Brief facts of the Complainant’s case are that the Opposite Party No.1 is a Medical Surgeon and Opposite PartyNo.2 is a Nursing Home in which the Complainant got admitted for treatment under Opposite Party No.1.

2. The Complainant was suffering from abdominal pain since March, 2018 for which he visited for treatment to the Op.No.1 on 15.05.2018 and as per his advice he had done USG on the same day impression of which detected “Left-sided small reducible indirect inguinal hernia with mesenteric flat/omentum as contents.”

3. Thereafter, as advised by the Op No.1 for surgery of the said Hernia, the Complainant took admission in the nursing home of the Op No.2 on 18.05.2018 and discharged on 20.05.2018.

4. The Complainant alleged that the Operation Theatre (OT) of the Op No.2’s nursing home was not properly sterilized and is without proper medical system as well as due to the medical negligence of Op No.2, the Complainant was infected and suffered from pain in the operated portion by releasing ‘Pus’ as well as “Cough” for 3 months.

5. Subsequently, the Complainant was treated by Dr.Ashfaque Ahmed on 17.06.2018, Dr.Pradip Bhattacharyya of Mediland Nursing Home on 20.06.2018, SSKM Hospital on 18.07.2018, Dr. Ashok Sengupta of Apollo Glenegles Hospitals on 25.07.2018 and Dr.Malay Kumar Barman of Haldia SebaSadan Nursing Home on 11.08.2018 respectively and ultimately Dr.Barman had drained out the said ‘pus’ from the operation area.

6. Lastly, the Complainant was admitted at Manipal Hospital on 24.09.2018 and discharged on 26.09.2018 where he diagnosed, infected inguinal ‘Mesh’ and due to medical negligence of Op No.1 & 2 such complications arisen, which ultimately operated on 25.09.2018 with a remark “incision and drainage of left inguinal abscess and Mesh Removal.”

7. The cause of action of this case arose on and from 19.05.2018 when the initial operation was done by the Op No.1 in the nursing home of the Op No.2.

The Complainant, therefore, prays for directing the ops :-

1. To pay the Medical Expenses of Rs.2,00,000.00 for the Medical Negligence of the Ops.

2. To pay Compensation of Rs.7,50,000.00 for Medical Negligence of the      Ops.

3. To pay Litigation Cost of Rs.25,000.00 to the Complainant for conducting the case.

4. Any other reliefs.

8. Notices were duly served upon the Op No.1 & 2. The Ops being represented by its’ Learned Counsel have contested the case by filing Written Version against the Complaint. While resisting the claim of the Complainant, the Ops in its’ Written Version stated inter alia that this complaint is not maintainable in its present form and in law and also has no cause of action, hence liable to be dismissed.

9. The Op No.1 advised the Complainant to take admission for Hernia Operation but, not specifically advised the Complainant to take admission at the Nursing Home of Op No.2 which the Complainant took at his own choice/discretion and where the Op No.1 successfully completed the operation with proper medical system in a sterilized OT.

10. The Op No.1 further submits that the Complainant was discharged with completely cured condition on 20.05.2018 and was advised to review again after 7 days. Therefore, the Op No.1 completely denied the allegation in the Complaint under Paragraph No.10 and 11. Moreover, he added during discharge the Complainant was satisfied with the operation and there was no complaint for suffering from ‘Cough’.

11. The Op No.1 cited excerpts from  Five Medical Journals which are self explanatory in support of their contentions :-

1. Two Major Advantages of Mesh Repair - 26^th Edition of Medical Journal of Bailey and Love’s Practice of Surgery (Page No.957 to 958) and 9^th International Edition of Farquhar Son’s Textbook of Operative Surgery (Page No.213).

2. Use of Mesh become Common Place Worldwide - 5^th Edition of General Surgery Operation by R.M.KRIK (Page No.76).

3. Endogenous Infection is an infection in which the source is from the patient’s own body (i.e. Skin, Teeth or wound infection) - 8^th Edition of Parker’s Textbook of Microbiology (Page No.639) and International Edition of Surgery – Basic Science and Clinical Evidence (Page No.815).

4. Any implanted Mesh may become infected. The infection is difficult to eradicate as bacteria may be in a protected environment where there is poor Antibiotic penetration - 9^th International Edition of Farquhar Son’s Textbook of Operative Surgery (Page No.213).

5. An infected mesh almost always has to be removed completely - 9^th International Edition of Farquhar Son’s Textbook of Operative Surgery (Page No.214).

12. The Op No.1 states, till 11.08.2018 neither any complaint was made for passing of ‘pus’ from the operated area although the Complainant treated by so many doctors and in hospitals as stated in Paragraph No.5 above, nor the Manipal Hospital mentioned anything in it’s Discharge Summary except removal of ‘Mes’ which is very natural. There was no advice and opinion from any medical institution which proves that the Op No.1 had wrongly done the operation. Hence, there was no negligence on the part of the Op No.1 and Op No.2 as all precautions, ethics and norms have been properly maintained during the hernia operation.

13. The Op No.2 also denied the statement made in complaint about the improper medical system and unsterilized Operation Theatre (OT) by mentioning the valid permission from the Govt. Authority after inspection of the healthy and hygienic condition of the Operation Theatre (OT) to run the nursing home of the Op No.2.

14. The Op No.2 submits that the Complainant was discharged with completely cured condition on 20.05.2018 and was advised to review again after 7 days. Therefore, the Op No.2 completely denied the allegation in the Complaint. Moreover, he added during discharge the Complainant was satisfied with the operation and there was no complaint for suffering from ‘Cough’. On 02.06.2018, when the Complainant came to the Op No.1 for routine check up, he didn’t complain any pain or swelling in the operated area. Thereafter, when the Complainant came to the Op No.1 for check up as per the prescription dated: NIL, for suffering cough and pain in his abdomen, he didn’t complained anything about the pain in the operated area and for which the Op No.1 referred to the Pulmonologist / Chest Physician for cough. Again on 01.08.2018, the Complainant visited the Chamber of the Op No.1 for check up with a complaint for Left side swelling and right side pain in the inguinal region and cough tied significantly, the Op No.1 suggested for Hot Compress 3 to 4 times per day and continuing Scrota Support.

15. The Op No.2 narrated the actual fact in the Written Version as follows:- the patient as advised by the doctor for admission as indoor patient for operation and admitted accordingly. He was given pre-operative as well as post-operative precautions, care and medicines as prescribed by the doctor. The patient was admitted and discharged in all time with cure condition. At the time of discharge, all papers relating to the treatment and bill was handed over to the patient party and acknowledging the same as per to the norms. There was no lacuna on the part of the nursing home authority in rendering proper medical treatment during his admission period. The patient being misguided filed this case without any sufficient cause. Moreover, all precautions and all ethics, norms have been properly maintained in performing the operation for Hernia and during rendering the service, no negligence on behalf of the nursing home authority was caused. Therefore, no proof which will be evident from the medical report was found.

16. Under the above circumstances Op No.1 & 2 prayed for dismissal of the present case with exemplary cost for harassment and imputation of goodwill amounting to Rs.5,00,000.00 and Rs.1,00,000 respectively.

17. Points for determination are:

I.   Is the case maintainable in its present form and in law?   

II.  Is the Complainant entitled to the relief(s) as sought for?

18. Decision with reasons

1. Both the points I and II, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.

2. We have carefully perused the Petition of the Complainant, Written Version of the Ops, Additional Written Version of the Op No.1, Examination in chief, Questionnaire, Reply along with all supporting papers and documents.

3. Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that Complainant is a consumer having grievances against the Ops 1 & 2 as such the case is maintainable in its present form and in law.

4. We have heard the submissions made by the both sides and perused the documents on record. The complainant alleges negligence of OP No.1 in treating him. It appears after careful scrutiny of the medical records that complainant went to the OP No.1 with the groin pain in Lower Abdominal and Op No.1 suggested him for USG. Accordingly the complainant did the USG on the same day i.e. on 15.05.2018. It appears from the USG Report “Left-sided small reducible indirect inguinal hernia with mesenteric flat/omentum as contents.”On perusing the report of USG done by Dr.Pritam Das, Consultant Radiologist of Rukshi Diagnostic Centre, Op No.1 examined and advised for surgery for which the Complainant opted to admit the Nursing Home of the Op No.2 on 18.05.2018 at his own choice and decision for conducting the operation.

5. The Op No.1 successfully completed the operation for Hernia of the Complainant on 19.05.2018 in the Nursing Home of the Op No.2 and duly discharged satisfactorily on 20.05.2018 with an advice to review again after 7 days. Subsequently the complainant felt post-operative problems and makes the Ops responsible for that post-operative complaints like passing of ‘Pus’,‘Cough’ and ‘Mesh’ on the ground of medical negligence by the Op No.1 and improper medical system with unsterilized Operation Theatre in the Nursing Home of the Op No.2

6. Thereafter, the Op No.1 met with several medical practitioners and hospitals i.e. Dr.Ashfaque Ahmed on 17.06.2018, Dr.Pradip Bhattacharyya of Mediland Nursing Home on 20.06.2018, SSKM Hospital on 18.07.2018, Dr.AshokSengupta of Apollo Glenegles Hospitals on 25.07.2018 and Dr.Malay Kumar Barman of Haldia SebaSadan Nursing Home on 11.08.2018 respectively and ultimately Dr.Barman had drained out the said ‘pus’ from the operation area on 17.08.2018 after observing the USG Report dated: 09.08.2018 of Dr.T.KMaity C/o. Amar Dyuti X-Ray Clinic.

7. Lastly, the Complainant was admitted at Manipal Hospital on 24.09.2018 and discharged on 26.09.2018 where he diagnosed, infected inguinal ‘Mesh’, which ultimately operated on 25.09.2018 with a remark “incision and drainage of left inguinal abscess and Mesh Removal.”

8. After carefully observing the prescriptions, medical records and reports of the complainant we do not find any suggestion/advice of the Op No.1 for admitting the Complainant in the Nursing Home of the Op No.2. The complainant voluntarily took admission in the op-2 Nursing Home.

1. It appears that the Op No.1 duly operated the Hernia in the Nursing Home of the Op No.2 on the basis of USG report of Dr.Pritam Das, Consultant Radiologist of Rukshi Diagnostic Centre. So, Op No.1 cannot be said that that he is negligent in conducting the operation of the complainant. We also do not find any evidence for improper medical system with unsterilized Operation Theatre in the Nursing Home of the Op No.2. If the said Nursing Home of the Op No.2 was below standard i.e. unhealthy, unhygienic and particularly unsterilized Operation Theatre, they didn’t get the necessary approval/permission of the Government Authority to legally run the Nursing Home after periodical inspection from the Health Department. Moreover, the Op No.2 duly taken care and all precautions of the Complainant during Pre-Operative and Post-Operative period by  providing medicines as prescribed by the Op No.1, all treatment papers and documents including Discharge Summary and Cash Bill etc. Apparently from the records of the Complainant no element of negligence on the part of the Ops was found.

10. Therefore, Op No.2 admittedly the owner and Proprietor of the Mamata Nursing Home can’t be held liable for negligence on medical treatment. The complainant has failed to prove by cogent evidence that Mamata Nursing Home was negligent in operating the Complainant. The Complainant has merely alleged that the Operation Theatre of the Op No.2’s Nursing Home was unsterilized and without proper medical system which cannot be taken as deficiency of service and does not prove any negligence of the Op No.2’s Nursing Home as well as Doctor Op No.1 who conducted the operation of the complainant only on the basis of the USG Report of Dr.Pritam Das, Consultant Radiologist of Rukshi Diagnostic Centre.

11. It is also revealed from the medical report of the Complainant, on 02.06.2018, when the Complainant came to the Op No.1 for routine check up, he didn’t complain of any pain or swelling in the operated area. Thereafter, the Complainant came to the Op No.1 for further check up as per the prescription dated: NIL, for suffering cough and pain in his abdomen, he didn’t complained anything for pain in the operated area and for which the Op No.1 referred to the Pulmonologist / Chest Physician for cough. Again on 01.08.2018, the Complainant visited the Chamber of the Op No.1 for check up with a complaint for Left side swelling and right side pain in the inguinal region and cough tied significantly, the Op No.1 suggested for Hot Compress 3 to 4 times per day and continuing Scrota Support.

• Moreover, till 11.08.2018, the Complainant neither made any complaint to any doctor about his pain in the operated area, rather the Complainant was treated for Cough by the various medical practitioners and hospitals i.e. Dr.Ashfaque Ahmed on 17.06.2018, Dr.Pradip Bhattacharyya of Mediland Nursing Home on 20.06.2018, SSKM Hospital on 18.07.2018, Dr.AshokSengupta of Apollo Glenegles Hospitals on 25.07.2018 respectively. The USG Report of KUBP and Prostate made by Dr.T.KMaity of Amar Dyuti X-Ray Clinic didn’t opine about the ‘pus’ in the operated area. The Manipal Hospital also did not diagnose anything about the release of ‘pus’ from the operated area. Similarly, no doctor opined that due to negligence of the Ops, infection was caused.

13. As per the various Medical Journals cited by the Op No.1, the following observations are well settled :-

1. ‘Mesh’ is required to remove naturally after certain period of surgery.
2. Endogenous infection is the source of patient’s own body i.e. Skin, Teeth or Wound Area.
3. Infection was caused by host response to a Foreign Body.
4. Infection may be caused by environment.

•   The above settled observations lend support to the versions of the ops. The op-1 conducted the operation with due care and diligence having requisite professional knowledge for the purpose. A mere averment in a complaint 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 hard and cogent evidence to prove the caseof medical negligence against a doctor or nursing Home. Here, in the instant case complainant has failed to discharge his such onus of producing cogent evidence.No such document has been produced before this Commission which will speak for the medical negligence of the Ops against which the Complainant had to incur huge expenses amounting to Rs.2,00,000.00.The Hon’ble Supreme Court has spelt out duties of a doctor in AIR 1969 (SC) 128 that the ”Skill of medical practitioners differs  from doctor to doctor. The very nature of the profession is such  that there may be  more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability and with due care and caution.  Medial opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient sill does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence”. Hence, in the light of the above guideline of the Hon’ble Apex Court the Ops can not be held liable for any medical negligence as alleged by the Complainant. The complainant is not entitled to get any relief.

• Accordingly, both the points are disposed of.

16. Thus, the complaint case  does not succeed.

        Hence, it is

O R D E R E D

That, the instant Complaint Case No.119 of 2019 be and the same is dismissed on contest. No order as to cost is passed.

Let  a copy of this judgment be supplied to each of the parties free of costs. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

        File be consigned to record section along with a copy of this judgement.