APPEARED AT THE TIME OF ARGUMENTS     

 

For the Petitioner : Mr. Manohar Prasad Singh, Advocate

 

For the Respondents

:

Mr. K.G. Sharma, Advocate

Mr. S.K. Roy, Advocate

 

Pronounced on: 13th June 2022

 

ORDER

DR. S. M. KANTIKAR, PRESIDING MEMBER

1. This present Revision Petition has been filed under section 21(b) of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) against the common order passed in Appeal No. 161 of 2011 and Appeal No. 197 of 2011 by the State Consumer Dispute Redressal Commission, Bihar, Patna (hereinafter referred to as the ‘State Commission).

2. Brief facts are that the Complainant’s father (hereinafter referred to as the ‘patient’) was operated by Dr. C. Pratap (hereinafter referred to as the ‘Opposite Party No. 2’) for removal of gall stone on 24.11.2009 at Jiwan Health Clinic at Sarifganj. Thereafter, the patient developed severe complications, which resulted in the death of patient on 01.01.2010. Thereafter, the patient was taken to Katihar Medical College Hospital (K.M.C.H.), Katihar and at Indira Gandhi Institute of Medical Sciences (IGIMS), Patna, wherein it revealed presence of gall bladder.  

3. The Opposite Parties, in their reply, denied any negligence or deficiency in service. It was submitted that the operation was performed on 24.11.2009 and the patient was discharged on 01.12.2009. The visiting surgeon regularly attended the patient and found him recovering well.  

4. After hearing the parties, the District Forum allowed the complaint and directed both the opposite parties, jointly and severally, to pay compensation of Rs. 2,50,000/- to the complainant.  The District Forum made the following observations:-

“Now, we take question No. (II] as to who was responsible for the error / medical negligency either Dr.C. Pratap or Jeevan Health clinic sarifganj. In this connection, we see an admitted position that Late Mr. Hussain was admitted in Jeevan Health Clinic sarifganj and the services of a visiting doctor C. Pratap was hired for operation and diagnosis. It is a common experience that when a patient goes to private clinic, he goes by the reputations of the Clinic and with the hope that proper care will be taken by the Hospital authority. It is not possible for the patient to know that which doctor will treat him. When a patient is admitted to a private Clinic / hospital, it is hospital / clinic which engage the doctors for treatment. In the present case Mr. Late Hussain went to Jeevan Health Clinic and the latter engaged the services of Dr. c. Paratp in the job either through employment or giving contact. The Hon'ble Supreme Court in the case of Spring Medows Hospital, Vs. The Ahluwalia 1998 C T J (SC] [CP] and in case of Smt. Savita Garg Vs. The Director National Health Institute held vicarious liability of the clinic / hospital. The attending doctor and the clinic both are equally liable for the mishaps of Mr. Late Hussain.”  

 

5. Being aggrieved, the opposite parties / respondent filed the Appeal bearing Appeal No. 197 of 2011 and the complainant/ petitioner filed an Appeal bearing Appeal No.161 of 2011 for enhancement of the compensation awarded by the District Forum before the State Commission.  The State Commission, after hearing both the parties, allowed the Appeal No.197/2011 and dismissed the Appeal No.161/2011, with the following observations:-

“We do not find any opinion of any medical expert as well as from none of the reports it is pin points that the operation performed and the procedure adopted by the Doctor was faulty was done without taking due precaution . The ultimate result of any surgical operation or the medical treatrnent by itself camiot be deciding factor hold medical negligence on the part of treating physician or surgeon. There is no evidence on record substantiating the claims of medical negligence and deficiency in service on the part of the O.P. no.- 1 and 2.”

 

6. Being aggrieved the instant Revision Petitions filed by the Complainant. 

7. We have heard the learned counsel on both sides, perused the material on record.

8. On a careful perusal of record, it is pertinent to note that Dr. C. Pratap is a surgeon having professional experience of more than a decade. Based on clinical and USG findings, he performed cholecystectomy on 24.11.2009. During operation, he noted dense adhesions and the cystic duct could not be traced, as it seems to be merged with common bile dust, therefore, he performed partial cholecystectomy with removal of stone by milking. The histopathology revealed chronic cholecystitis.  The patient was recovering well and he was discharged on 8th day on 01.12.2009 after removal of sutures.  In our view, Dr. C. Pratap adopted accepted standard procedure to remove the gall stones.  

9. We further note that the patient consulted Dr. S. M. Ali on 10.12.2009, wherein reflux esophagitis and duodenal ulcer was diagnosed. Thereafter, the patient approached KMCH, wherein subacute intestinal obstruction was diagnosed, but nothing was mentioned about wrong operation or the complications arose from the operation.  From K.M.C.H., the patient was referred to IGIMS, Patna, wherein he was treated from 23.12.2009 to 28.12.2009. The USG of gall bladder revealed multiple stones in slug field gall bladder with a mass 7.4 X 3 cms. The US guided FNAC was performed at IGIMS which revealed “smear shows only blood-opinion not possible.”

10. Considering the entirety of case, it was the case of gallstones with a gall bladder mass, which could not be resected completely. The opposite party no. 2 performed partial cholecystectomy operation, which was as per the reasonable standard of practice. It was neither negligence nor deficiency in service of the treating doctor or the hospital.

11. In Jacob Mathew’s case (2005) SSC (Crl) 1369, it reads as under:

“When  a  patient  dies  or  suffers  some  mishap,  there  is  a  tendency  to  blame  the  doctor  for  this.   Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every  case  in  his  professional  career but surely  he  cannot be  penalized for  losing  a  case  provided  he appeared in it and made his submissions.”

12. Based on the discussion above, there is no merit in the instant Revision Petitions, the same are dismissed.

Parties to bear their own costs.