Date of Filing: 18.03.2015. Date of Disposal: 12.10.2022.
Complainant :Borjahan Mondal, S/O Siddique Ali Mondal, 127, B.C. Road, Bagan Bari, Barabazar, P.O. & P.S. & Dist. Burdwan, Pin-713101.
-VERSUS -
Opposite Party : 1. Dr. Kanchan Mukherjee, Ex-House Surgeon, B.M.C.H. Burdwan & Eden Hospital, Kolkata, having its chamber at Khosh Bagan, Masjidtala, P.O. & P.S. & Dist. Burdwan, Pin 713101.
2. Mother Land Nursing Home, Khasbagan, Masjidtala, P.O.& P.S. & Dist. Burdwan, Pin-713101 represented by its Proprietor.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
: Mr. Atanu Kr. Dutta. - Hon’ble Member.
Appeared for the Complainant :Sri Debdas Rudra Ld. Advocate.
Appeared for the Opposite Party :Sri Deb Krishna Sinha Ld. Advocate.
FINAL ORDER
On 18.03.2015 the complainant Borjahan Mondal has filed this complaint u/S 12 of the Consumer Protection Act, 1986, against the OP Nos. 1 & 2.
The case of the complainant, in brief, is that Munia Khatan, W/O of the complainant was taken to the doctor at Bankura Hospital having presumed to be conceived as at that time they were residing at Bankura for his service. The doctor of Bankura Hospital treated her and told that his wife and he are going to be parents and pregnancy started on and from 28.02.2014. Thereafter, the complainant has decided to treat his wife Munia Khatun under Dr. Kanchan Mukherjee (OP No.1) at Burdwan. So, the complainant and his wife came back to their residential house at Burdwan. On 28.05.2014 they visited the chamber of OP No.1 and the OP No.1, after the clinical examination, prescribed some medicines and advised for some pathological tests. After pathological tests, on 28.05.2014 they went to the chamber of the OP No.1 and OP No.1 doctor examined all the reports and prescribed some medicines and advised the complainant to review after one month. OP No.1 also told the complainant that there is nothing to be worried and everything is O.K. After being highly satisfied with the remarks of the OP No.1, they came back home and purchased all medicines and followed up the said medicines as per the direction of the OP No.l. In the second time, Munia Khatun was taken to OP No.1 on 26.06.2014 for regular check-up. The doctor examined the patient and prescribed again some medicines and assured them that there is nothing to be worried and advised to come again after one month for medical check-up. On 31.07.2014 OP No.1 examined the patient and advised for U.S.G of lower abdomen of the patient and prescribed some medicines. On 31.07.2014 some pathological tests and U.S.G were done and on that very day in the evening the reports were shown to the OP No.1 and the OP No.1 doctor advised for another U.S.G test after 10 days and told them that the result is O.K. and there is nothing to be worried about. On 15.08.2014 again the U.S.G was done and showed the said report to the OP No.1. After examining the said report, the OP No.1 told the complainant that the baby in the womb was expired at the age of 8 weeks 1 day and advised for immediate abortion. Then the complainant and his wife became very much shocked to hear the unexpected words from the OP No.1. Since pregnancy she was under regular treatment under the OP No.1 and observed all the pathological tests and followed up all the medicines as per direction of OP No.1. Then they wanted to know how the baby in the womb was expired in spite of having regular treatment, but the OP No.1 did not give any positive answer. Subsequently, the complainant without any delay to save his wife from the danger, admitted her in the Mother Land Nursing Home (OP No.2.) for immediate abortion under the observation of OP No.1. On 15.08.2014 OP No.1 operated the abortion of the wife of the complainant. Surprisingly, after the operation, huge bleeding started and the patient Munia Khatun suffered from pain and almost to die and the complainant requested the OP No.1 to stop the bleeding and also to get relief of his wife from pain but the OP No.1 doctor told him that there would be some bleedings after operation in usual and the patient has to bear the pain. Everything would be normal and also assured the complainant that there was nothing to be worried about. But the said bleedings and the pain was continuing and the life of the patient was in danger. So, the complainant, without any delay, brought his wife to the Chamber of Dr. B. N. Sarkar on 17.08.2014. Dr. Sarkar examined the patient and prescribed for U.S.G test along with some other pathological tests. Then on 18.08.2014 the U.S.G was done. Dr. B. N. Sarkar examined the U.S.G and said that earlier operation of abortion which was done by OP No.1 was incomplete and so there was a risk of life of the wife of the complainant. At this stage, to save the wife of the complainant from danger Dr. B. N. Sarkar advised the complainant to admit his wife in the H. K. Nursing Home on 19.08.2014 for operation for the second time. Further operation was done by Dr. B.N. Sarkar. Ultimately, she became free and got relief from bleedings as well as pain.
It is also stated by the complainant that due to medical negligence and carelessness on the part of the Op No.1, the complainant and his wife have to loss their child and they were deprived of being parents which clearly indicates deficiency in service and unfair trade practice on the part of the OP No.1. For the acts of the OP No.1, Mrs. Munia Khatun has been suffering from great mental pain, agony and harassment. The complainant has incurred medical expenditure of Rs.50, 000/- towards treatment, operation as well as medicines and pathological tests
The cause of action has arisen on and from 28.02.2014.
Upon this background, the complainant has prayed for a direction to the OPs to pay a sum of Rs.50, 000/- which was incurred by him as cost of treatment including the operation, medicines and pathological tests and Rs.50, 000/- as compensation towards mental pain, agony and harassment due to medical negligence and carelessness of the OPs. The complainant also prayed for Rs.25, 000/- as litigation cost.
OP Nos. 1 & 2 have contested the case by filing Written Versions denying all the material allegations contending inter alia that the complainant has no cause of action to file the present case and that the case is not maintainable in its present form and that the case is barred by law of limitation, waiver, estoppel and acquiescence and that the complainant is not a consumer under the OP and as such the complaint case is liable to be dismissed.
The specific case of the OP Nos.1 is that Mrs. Munia Khatun. W/O of the complainant on 28.05.2014 for the first time came to the Chamber of this OP at Khosbagan, Burdwan with the complaint of Anoyexia , weakness and missed menstrual period and he examined her , diagnosed her as early pregnancy case and advised her for urine (pregnancy test) and other relevant investigations and pregnancy test was positive on 29.04.2014 and other reports were normal and except the patient had negative Blood Group, a risk factor in pregnancy. Some medicines were prescribed by him for the patient and advised the patient to come after one month or any time, if they think necessary. On 26.04.2014 against this OP examined the patient and considering the situation, prescribed some medicines which are not harmful to cause foetal death. And other medicines for better pregnancy outcome were also given. In paras 14,15,16,17, 18 & 18,20, 21 various steps for medical treatment by this OP no.1 and various medicines on various stage of pregnancy outcome have been mentioned there. The OP further submits the explanation in gist and to the point as follows:-
- No harmful medicines were used by OP or prescribed by OP that proven to be able to cause of foetal-death.
- Patient was immunized against Tetanus.
- Relevant Investigations were done.
- The step of O.T. procedure to terminate non-viable pregnancy after report confirmed by expert doctor.
- Patient party was also advised to attend Burdwan Medical College & Hospital, if required. They had option.
- Anti D gammaglobulin prescribed to patient as the month was Rh Negative that was very important.
- OP’s personal phone number was given to them for contact at any time.
- There was a delay from the patient party not from the side of the OP’s.
- The OP was not negligent and deficient in service towards the patient but had nothing to do for the early pregnancy loss.
Upon this background, the OP No.1 claims for the dismissal of the case.
The specific case of the OP No.2 is that this OP is a Nursing Home which is running in the strength of the necessary permission granted by the C.M.O.H, Burdwan and there is no allegation from any corner and/ or authority against this OP No.2 Nursing Home. The treatment of a patient which is provided at the choice of the patient party and different doctors refer the patients to be admitted in this Nursing Home and treatment is done as per advice of those doctors under whose control or supervision the patient is admitted. The Nursing Home Authority has nothing to do with this. They only provide sufficient accommodation and necessary medical assistance to the patient as per advice of the doctor. In the present case, the complainant has not complained against such facilities provided to the patient. Moreover, there are R.M.O and trained nurses in the Nursing Home for 24 hours and as such deficiency or negligence in service on the part of this OP upon the complainant party or the patient does not arise all. On the contrary, the party deprived the Nursing Home authority as well as the doctor from their proper remuneration fees and/or cost towards medicines, bed charges and other necessary charges. So, the allegation of unfair trade practice as made out by the complainant in this complaint also does not stand in the eye of law. Those allegations have been made by the complainant only for the purpose of this case. In the above facts and circumstance, it is clear that no relief has been claimed against the OP No.2 and no negligence or deficiency in service performed against the patient or any unfair trade practice had been adopted on the part of the Nursing Home (OP No.2). It is further stated that the complainant has filed this complaint only to squeeze money by an illegal way from this OP. As such the instant complaint is liable to be dismissed with exemplary cost in favour of the OP No.2.
Decision with Reasons.
In order to prove the case, the complainant has filed evidence-on-affidavit by himself and filed Xerox copies of some documents, i.e. the papers of medical treatment and the report of pathological tests. OPNo.1 filed questionnaire to the said evidence of the complainant and the complainant filed reply to the said questionnaire. On the prayer of the OP Nos. 1 & 2 their Written Versions have been treated as evidence-on-affidavit on their part and the complainant filed questionnaire to the OP No.1 and OP No.1 filed reply to the said questionnaire.
MSVP SSKM Hospital, Kolkata submitted his Medical Report dt. 21.02.2017 vide his letter No. SSKM/MSVP/ 0209/2017 dt. 27.02.2017.
Now we like to discuss the case with reference to the evidence, principle of law etc. regarding medical negligence and how far it has been proved.
Principle of Law
No.1. A medical man is possessed of skill and knowledge for the purpose of medical advice and medical treatment.
2. He has a duty to take care in deciding what treatment to give or duty to take care of administration of the medical treatment.
3. A breach of such duty gives a right of action for negligence to the patient and the damages are caused.
4. A medical practitioner was not to be held liable simply because things went wrong from mis-chance or mis-adventure through an error of judgment in choosing one reasonable course of treatment in preference to another.
5. The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England (4th edition, Vol. 30, Para-35).
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis, it must be shown
(i) that there is an usual and normal practice; (ii) that the Defendant has not adopted it; and (iii) that the course in fact is adopted is one, no professional man of ordinary skill would have taken , had it be acting with ordinary care.
6. The Principles of Bolam and Bolitho Case are applied in the Indian Cases also though there are many criticisms by the Indian Judiciary in some cases. In the land mark of Bolam case, it was held,
“In the ordinary case, which does not involve any special skill , negligence in law means a failure to do some act which a reasonable man in the circumstance would do, or the doing the same act which a reasonable man in the circumstances could not do and if that failure could attract negligence”.
Put simply, it states that the defense could not be considered reasonable, if the body of doctors or supporting witnesses were not capable of withstanding logical analysis.
Management Procedure
According to the fact of the case, the management procedures are- (1) appropriate advice regarding the pregnancy of the patient should be given. (2) the clinical investigations should be done, (3) According to the nature and clinical investigation reports, the medical treatment should be given to the patient. (4) Appropriate advice regarding care of the patient and reasonable step to observe the patient’s condition must be given. (5) the advice of the doctor should be followed by the husband and wife positively. (6) During surgery the clinical procedure and observation, according to the Medical Science must be followed by the doctor concerned. (7) Pre-operative management and post-operative management procedure should be followed and in pre-operative stage, the doctor examine the patient, record findings, diagnosis of the disease, prescribe investigations and explain the possible treatment and its natural outcome, pre-caution in use of drugs and the doctor also gives common advice to the patient . The doctor also prescribes some medicines according to the relevant fled of medicine, the doctors also disclose the expected chance of success and failure, risk and benefit of the procedure and the complications, if arises, in the particularly surgery and procedure of anaesthesia . The consent of the patient should be taken. Some routine investigations should be made by the doctor concerned during the stage of abortion, and he himself takes caution in respect of instruments of surgery, hand-gloves and other cautions so that the bacterial infection may not come. In the missed-abortion the doctor concerned should take caution by taking care of doses and medicines in time. After abortion the management that is U.S.G. H.C.G test and diagnosis should be made.
In the instant case, the missed-miscarriage is involved, when the fetus is dead and retained inside the Uterus for a variable period; it is called missed miss-carriage for fairly fetal demise. It has already been stated that during surgery of missed-miscarriage the doctor should be cautious to the effect that the complications with missed-abortion must be looked into and tried to remove the said complications by clinical method.
Evidence and Discussions.
We have already mentioned in the body of the final order that both sides adduced their respective evidences including the documentary evidence and the opinion of the expert.
Ld. Advocate of both sides did not argue in details by pressing the above mentioned management procedure except the complaint case and case of the Written version with reference to the documentary evidence.
In this instant case, the complainant being the husband of the patient has lodged the complaint and the patient i.e his wife Mrs. Munia Khatun herself did not lodge the complaint or did not come to adduce evidence by herself in this case. Mrs. Munia Khatun, who is the wife of the complaint, is the most probable consumer in this case and her evidence is the best evidence.
It is the case of the complainant that he took his wife to the OP No.1 for medical treatment expecting that she was pregnant and the doctor ( OP No.1) also admitted that the patient came to his Chamber with the complaint of Amenorrhoea and after examining her, the doctor prescribed some clinical investigations to confirm the pregnancy and the said report , specially the report of urine examination disclosed positive result i.e the said Munia Khatun became pregnant and according to the pregnancy of the patient, the doctor started medical treatment to her and the doctor on 28.05.2014 firstly treated her and prescribed medicines and advised for reviewing after one month and again on 26.06.2014 the OP No.1 treated her and prescribed medicines and advised to review after one month . Again on 31.07.2014 the OP No.1 treated the patient Munia Khatun and advised U.S.G. of the lower abdomen of the patient and prescribed certain medicines also. The OP No.1 advised the patient to attend B.M.C.H, if required. The report dt. 31.07.2014 of the U.S.G of fetus ( screening ) disclosed the condition of organ of lower abdomen and the impression was “ Gravid Uterus with no fetal node”. But on that day, the OP No.1 did not give any written advice as given earlier with review date of the patient but advised to go to SKYL NH/or BMCH. On 15.08.2014 the patient again went to the OP No.1 and the OP No.1 advised her for USG and the USG-report dt. 15.08.2014 disclosed that CRL = 1.75 cm corresponding gestational age 8 weeks 1day of the fetus and no adnexal SOL is seen , impression shows that “ Suggestion of missed-abortion” and on that very day the doctor prescribed medicines and injection. According to the prescription dt. 15.08.2014 of Mother Land Nursing Home, Khosbagan, Burdwan, (OP No.2), the OP No.1 operated missed-abortion of the wife of the complainant..
Ld. Advocate for the complainant, has argued that the OP No.1 did not properly give medical treatment to the pregnant woman i.e. wife of the complainant and he pointed out that the doctor concerned did not take consent from both the husband and the wife and did not apply the medicines properly. He has also pointed out that while the doctor did not give any review date for examination of the patient on 31.07.2014 and since long after 31.07.2014 the patient was treated on 15.08.2014 and on that very date i.e on 15.08.2014 he advised the patient for U.S.G. of Uterus and the report disclosed that “suggestion of missed-abortion i.e. embryo of fetus is already dead and retained in the cavity of the Uterus and the Ld. Advocate in this connection again argued that this act of OP No.1 is negligence /professional negligence.
But the Ld. Advocate for the OP No.1 has argued that the doctor on 31.07.2014 advised the patient to attend SKYL NH/BMCH, but the patient did not follow the same and he also argued that on 15.08.2014 when the patient came to his Chamber, the doctor rightly advised for U.S.G of the lower abdomen and the U.S.G. report disclosed gestational age of the fetus was 8 weeks 1 day which is very minor and when the fetus was actually missed-abortion is not clear. Only it came to the knowledge on 15.08.2014 and as such there is no medical negligence /professional negligence on the part of the OP No.1. He further argued that OP No.1 has carefully treated the patient and gave necessary medical treatment as well as medicines and clinical investigations. In this connection, Ld. Advocate for the OPs referred to Dewhurst’s Textbook of Obstetrics & Gynaecology, 8th edition, wherein it has been mentioned that all women should offered a ‘dating’ scan. This is the best performed between 10 & 13 weeks gestation and the crown-rump length measured when the fetus is in a neutral position and screening for fetal well-being usually be detected from about 14 weeks of gestation but the U.S.G disclosed that the age of the fetus was 8 weeks 1 day and according to the Obstetrics & Gynaecology Medical Science, it is not possible to say as to whether the fetus was in a neutral position or not.
It is found from the Xerox copy of the documents that the consent of the patient was not taken and the consent of the husband was taken but in answer to the Q.No.11, the OP No.1 stated that he advised the patient for termination of the pregnancy with the consent of the husband and she and her husband agreed for that, the form of the consent disclosed that the complainant put his signature there but no signature of the patient is found. But the Ld. Advocate for the OP Nos. 1 & 2 submitted that according to the prescribed Rules and Regulations, in the pre-stage of abortion, the doctor concerned takes the consent of the patient and operated. According to the Consent Form submitted by the OP No.2, disclosed that the consent of the complainant, being guardian, was taken for the purpose of abortion of his wife, though the doctor admitted in his reply to the Question No.11 that he advised the patient for termination of the pregnancy with the consent of her husband and she and her husband agreed for that. But the Ld. Advocate for the complainant argued that the Consent Form only bears the signature of her husband and this Consent Form is not as per Rules and Regulations but the complainant could not produce any form as per Rules and Regulations. On the other hand, the Ld. Advocate for the OP No.1 has argued that it is the practice that the consent of the guardian is taken for the operation of the ward and when the doctor admitted that he advised for termination of missed abortion with the consent of her husband and she and her husband agreed for that. It cannot be thrown away as it may be oral or in writing. Long after the abortion was done, the complainant again cannot raise such type of question during trial of the case and especially when the U.S.G. report disclosed that it was missed-abortion, then it is the first and foremost duty of the doctor to save the life of the patient by abortion which had been done in this case by OP No.1 and it cannot be said that it is the ingredients of medical negligence.
It is the case of the complainant that after operation of missed-abortion, his wife was suffering from profuse bleedings and abdominal pain and then on 17.08.2014 the complainant, without any delay, brought his wife to the Chamber of Dr. B.N. Sarkar and Dr. B.N. Sarkar examined the patient and prescribed for U.S.G along with some other pathological tests and on 18.08.2014 U.S.G test of his wife Munia Khatun was done and the said report of the U.S.G was shown to Dr. B. N. Sarkar and Dr. B.N. Sarkar said that earlier operation of the abortion which was done by OP No.1 was incomplete and there is risk of life of patient and to save the life of the patient from the danger, Dr. B. N. Sarkar advised the complainant to admit her in the H.K. Nursing Home on 19.08. 2014 and on that very day the operation was done by Dr. B. N. Sarkar and the patient got relief from the bleedings as well as pain. From the prescription dt. 17.08.2014 given by Dr. B. N. Sarkar disclosed that there was incomplete abortion and the U.S.G. of the lower abdomen screening dt. 18.08.2014 given by Burdwan Scan Centre disclosed the impression, as “incomplete abortion and no scrap of paper is forthcoming on behalf of the complainant to show that the operation was done by Dr. B. N. Sarkar at H.K. Nursing Home , Burdwan, after getting admission there to get relief the patient from incomplete abortion. The expert on his report dt. 21.02.2017 also opined that missed abortion neither preventable nor predictable and the cause of it is not always known to Obstetriticians. In missed abortion sometimes incomplete abortion takes place as overzealous curettage may cause torrential bleeding and uterine perforation. In this connection, the Ld. Advocate for the complainant has argued that the opinion of the expert can be accepted but there were negligence on the part of the OP no.1 in other points raised in the complaint. But we have already disclosed other points of the case of the complainant that there was no negligence on the part of the OP no.1. In this situation, Ld. Advocate for the OP nos. 1 & 2 cited a decision in connection with the Civil Appeal Nos. 6507 of 2009 of the Hon’ble Supreme Court of India. “In case of medical negligence, this Court is in Jacob Mathew Vs. State of Punjab and Another dealt with the law of medical negligence in respect of professionals professing some special sills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution but there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to be best of his ability and with reasonable competence. Thus, the liability would only come if (a) either a person (doctor) did not possess the requisite skills which he professed to have possessed; or (b) he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional.” In the instant case, the OP No.1 has possessed the requisite skill which he professed to have possessed and he did exercise with reasonable competence in given case the skill which he did possess. After operation of the missed abortion without going to the Op No.1, the complainant brought his wife to another doctor namely Dr. B. N. Sarkar and Dr. B. N. Sarkar did the operation which would have been done by the OP No.1, if the complainant comes with the said problem of the patient to the OP No.1 and according to the opinion of the expert missed abortion which is neither preventable nor predictable and the cause of it is not always known to Obstetriticians. In missed abortion sometimes incomplete abortion takes place as overzealous curettage may cause torrential bleeding and uterine perforation. In this situation, it cannot be held liable the OP No.1 for medical negligence. To attract the medical negligence, the principle of law as laid down by the Hon’ble Supreme Court in the above citied decision and above mentioned principle of law in the body of the judgment must be complied with, but in the instant case, no such element is forthcoming on behalf of the complainant.
The Hon’ble NCDRC, New Delhi in connection with Revision petition No. 736 of 2013 D/D 13.12.2013 wherein it was observed that “ In our opinion application of Bolam’s test is necessary and the Hon’ble Supreme Court, inter alia, observed in Martin D’souza case as under Judges are not expert in medical science, rather they are laymen. Indiscriminate proceedings and decision against the doctors are counter-productive and serve society no good. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgeon has failed, the doctor cannot be straightly held liable for medical negligence by applying principles of Res Ipsa Locquitor. The law is a watchdog and not a blood-hound, and so long as doctors do their duty with reasonable care they will not be held liable even if treatment is unsuccessful.”.
In the instant case, we did not find any ingredient of medical negligence on the part of Op No.1. Hence, the above principles are applicable here.
In view of the above discussions, nothing has been proved against the OP No.2 also.
As a result, the case fails.
Hence, it is
ORDERED
That the Consumer Complaint No. 80/2015 be and the same is hereby dismissed on contest against the OP Nos. 1 & 2 without any cost.
Let a copy of this order be given to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C, Purba Bardhaman. D.C.D.R.C , Purba Bardhaman.
