Order No.  59  dt.  12/09/2016

       The case of the complainants in brief is that the complainant no.1 is the husband of deceased Rama Panda and o.p. no.2 is the  daughter of the said deceased, the said Rama Panda was under the treatment of o.p. no.5 Dr. Soupayan Dutta pn 1.6.06 and the said doctor referred her to o.p. no.4 for review by performing colonoscopy. The o.p. no.4 performed the colonoscopy on 16.6.06 and at the time of said operation he did not adopt the laid down the procedure and practice while performing the colonoscopy as a result of which the deceased suffered rapture and resulting in perforation in the colon region through the deceased complained to the complainants that she had severe pain at that time.

            The complainants brought to the notice of o.p. no.4 who did not pay any heed and after performing of the colonoscopy the deceased suffered bleeding from the colon region and she started vomiting blood and on becoming puzzled the complainant went to o.p. no.5 who advised to take admission at the hospital of o.p. nos.2 and 3. Since the date of admission till 19.6.06 the patient was treated by o.p. nos.5 and 6. Subsequently even after getting admission in the said hospital the patient started vomiting blood and blood was also coming out from the colon region. The complainants further stated that o.p. no.6 also did not take any necessary steps for the surgery and if the surgery would have been done, the patient could have been saved. On the basis of said fact complainants claimed that there was gross negligence on the part of o.p. nos.2, 3 and 6 and they were liable for the death of the deceased. The o.p. no.7 all through treated the deceased and after the death the o.p. nos.1 to 7 refused to hand over the prescriptions.

            The o.p. no.2 after performing the 1^st operation on 20.6.06  the complainants were informed that the deceased had suffered severe rapture resulting to a perforation while performing the colonoscopy and the said perforation occurred due to willful and negligence performance by o.p. no.4.  

            In view of the facts and circumstances as stated above the complainants claimed that they paid the services provided by the o.p. nos.1 to 7 as well as the o.p. no.8 and for the negligent act done by them complainants will be entitled to get compensation. 

            The complainants claimed Rs.5 lakhs towards the compensation and also prayed for litigation cost and other damages.

            The o.ps. contested the case by filing separate w/v and denied all the material allegations of the complaint. It was stated by o.p. nos.2 and 3 that the patient Rama Panda, since deceased, was admitted in their nursing as referred by Dr. Soupayan Dutta on 18.6.06 at 8-00 a.m. and she was taken out by the patient party on 20.6.06 i.e. the patient was in the nursing for 49 hours only. The complainants had earlier filed a case being no.CC/206/2006 against all the o.ps. and the o.p. nos.3 and 7  filed an application challenging the maintainability and during the hearing the complainants prayed for withdrawal and subsequently they filed this case. The o.ps. denied that the patient died due willful and negligent manner of treatment by o.p. no.7. The o.ps. further stated that after taking out the patient from o.p. no.2 she was admitted in the Park View Nursing Home under Dr. Arka Banerjee where the patient died on 13.7.06.

            The o.p. no.7 by filing a separate w/v denied that there was any negligence on the part treatment rendered by the said doctor. The o.p. no.7 examined the patient and from the Bed Head Ticket on 19.6.06 it appears that there was a note in the BHT that the patient party was willing to give consent for surgery promptly. The patient was not treated or prescribed any medicine by the said doctor and as such, there was no deficiency in service on the part of the o.p. no.7. The o.p. no.7 denied that there was any willful and negligent manner of treatment by o.p. nos.1 to 7 and accordingly the said o.p. prayed for dismissal of the case.

            On the basis of the pleadings of the respective parties the following points are to be decided:

1. Whether the wife of complainant no.1 was treated by the o.p. no.5.
2. Whether there was any rapture in the colon at time of operation.
3. Whether there was any medical negligence on the part of the o.p. no.3 and subsequently by the o.p. no.7.
4. Whether the o.ps. had any negligence and/or failed to discharge their duties properly.
5. Whether the complainants will be entitled to get any compensation from the o.ps. for their medical negligence.

Decision with reasons:

            All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

            Ld. lawyer for the complainants argued that Rama Panda was suffering from colon disease and she was under the treatment of o.p. no.5 and she was referred to o.p. no.4 for performing colonoscopy. The o.p. no.4 performed the colonoscopy on 16.6.06 and at the time of said operation deceased suffered rapture resulting in perforation in the colon region. The patient sustained severe pain and it was brought to the notice of o.p. no.4 and he did not pay any heed. While the condition of the patient deteriorated on 18.6.06 complainants went to o.p. no.5 who advised the patient to take admission in the hospital of o.p. nos.2 and 3 and the complainants paid all the charges. Though the o.ps. did the medical examination of the patient and in spite of repeated request o.p. nos.2,3,4 and 5 failed to hand over all the examination report. The o.p. no.5 referred to Dr. Mukesh Kedia who took the matter very casually the patient was under the treatment of o.p. nos.5 and 6. The o.p. no.7 repeatedly advised the o.p. no.6 for surgery but o.p. no.6 did not take it seriously and the deceased was not provided required medical assistance. Therefore, there was gross negligence on the part of o.p. no.6 and as per the advice of o.p. no.7 the patient was shifted to o.p. no.8 and o.p. no.7 assured that he would conduct the operation there but refused to conduct the surgery, ultimately the patient died on 13.7.06. In view of the facts and circumstances as stated above ld. lawyer for the complainants argued that the death of said Rama Panda took place due to medical negligence on the part of o.p. nos.1 to 6 and thereby they should pay the compensation including the expenses paid by the complainants.

            The complainants’ lawyer in order to fortify the claim referred the medical authority wherein it was stated that perforation of the colon is a life threatening condition and the patients need to have surgery as soon as possible. Even during some surgical procedure in the abdomen there is a chance accidental perforation of large intestine. The most important thing is to proceed as soon as possible with the surgery, and to prevent possible complications of this condition. A surgery will prevent some of the complications, and save patient’s life. Well experienced doctors will find the cause of the rapture quickly and the patient is going to be operated on within a short period of time. On basis of the said authority on medical science ld. lawyer emphasized that there was gross negligence on the part of o.p. nos.4, 6 and others therefore they cannot shark off their responsibilities and evade their liability to pay compensation to the complainants.

            Ld. lawyer for the o.ps. argued that the o.ps. including o.p. nos.4 and 5 took all sorts of measures for the treatment of the patient and there was no medical negligence on their part. Ld. lawyer also argued that the o.p. n.o.5 after coming to know the nature of the disease advised urgent admission under a surgeon and as this was a surgical emergency the patient was brought to the emergency of Paramount Clinic and was in shock and she was admitted under o.p. no.5 and he never advised the complainants to get admitted the patient under his care and she was provided with sorts of medical assistance including she was put on IV fluids , nasogastric suction, IV antibiotics and blood transfusion and in such condition she was referred to Dr. Mukesh Kedia. Therefore o.p. no.5 in strict sense did not perform any conservative treatment to the said patient.

            So far as the argument as advanced by ld. lawyer for the o.p. no.5 is concerned it was specifically stated that the said patient Rama Panda was referred to him by o.p. no.4 for colonoscopy and the complainants were never forced by o.p. no.5 to undergo colonoscopy. The said doctor stated that Rama Panda was admitted to Port New Nursing Home and after prolonged treatment she died on 13.7.06.  The complainants never informed the o.p. no.5 regarding the physical condition of the patient and the complainants did not follow the directive of the o.p. no.5. As such, there was no negligence on the part of the o.p. no.5.

            Considering the submissions of the respective parties it appears that Rama Panda was suffering from colon disease and she was operated by Dr. Soupayan Dutta and after the operation the complainants claimed that due to wrong operation made by o.p. no.5 the condition of the patient deteriorated and subsequently she was transferred to another nursing home and o.p. no.6 treated the said patient but since no urgent surgery was made upon the said patient the unfortunate death of the said patient took place. The complainants claimed that Dr. Soupayan Dutta o.p. no.5 who held the colonoscopy had committed mistake for which the patient had the blood vomiting but in order to corroborate the said fact of wrong treatment rendered by the said doctor or there was any fault on the part of o.p. no.5 at the time of operation no cogent evidence has been brought before this Forum. It is found from the materials on record that due to the condition deteriorated to the said patient she was shifted to another nursing home and she had been there 49 hours and she was provided with necessary medical treatment there. But unfortunately she died at the said nursing home. The complainants claimed that there was gross negligence on the part of  the o.p. no.6 Dr. Mukesh Kedia who refused to conduct surgery upon the said patient since the condition of the patient was so serious that o.p. no.6 before getting opportunity to render surgery upon the said patient she died. Therefore it cannot be said that there was gross negligence on the part of o.p. no.6. The complainants claimed that they were not provided medical papers by the doctors or nursing home but they annexed some documents with the petition of complaint which established the fact that the medical papers were handed over to the complainants. It is also found from the materials on record that the complainants claimed that if there would have been immediate surgery upon the said patient she could have been saved. In this respect it should be taken into consideration the medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk by higher chances of failure. Just because professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his / her suffering which did not yield the desire result may not amount to negligence.

            Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. In a case reported in 2005 Crimes SC 3-63 in Jacob Mathew vs. State of Punjab it was held by Hon’ble Supreme Court that a simple lack of care, an error of judgment or accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day he cannot be held liable for negligence. Merely because a better alternative course or method of treatment was available or simply because a more skilled doctor would not have chosen follow or resort to that practice which the doctor follow.

            Here in this case, the main accusation has been made against the o.p. no.5 to the effect that the said doctor at the time of operation had committed some mistake resulting in perforation in the colon, in this respect we can rely on the decision of Hon’ble Supreme Court in Dr. Mahadeb Prasad Kaushik vs. State of U.P. in Criminal Appeal No.1625 of 2008 wherein it was held even for the sake of argument if it is found that there was an error of judgment on the part of professional is also not negligence per se.

            The bench headed by Hon’ble C.K. Thakkar and D.K. Jain while quashing the procedure initiated against doctor the bench explained “The standard to be applied for judging whether a person charged has been negligent or not would be often ordinary competent person exercising ordinary skill in the profession”. The court granted breather to doctors who are living under the constant threat of being drag to courts of ‘erroneous’ treatment under this days are hounded by ambulance chasers, a category of lawyers who convinced patient to file cases against any treatment ‘gone wrong’.

            Hon’ble Supreme Court said medical profession is often called upon to adopt a procedure which involves higher element of risk, but which a  doctor honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure which course is more appropriate to follow would depend on facts and circumstances of a given case.

            In the case of Indian Medical Institute vs. V.P. Santa (1995) (6 ) SCC 651 the Hon’ble Supreme Court approved a passage from Jackson and Powel on professional negligence and held , the approach of the court is to require that professional men should possess a minimum degree of competence and they should exercise reasonable care in the discharge of their duties.

            It is well settled law as observed by Hon’ble Apex Court in the case of Kusum Sharma and others vs. Batra Hospital 2010(1) CPJ 29 SC held “Negligence cannot be admitted to a doctor as soon as he performs his duties with reasonable skill and competence medical practitioner would be liable only when his conduct fell below that of standards of a reasonably competent practitioner in this field”.

            Since the complainants have claimed that the immediate operation was not done by the subsequent doctor i.e. o.p. no.6  there is an allegation of deviation from ordinary professional practice it is worthwhile to refer lord President  Clide in Scottish case Hunter vs. Herlay 1955 Supreme Court 200 wherein it was laid down that the following requirement is to be established by the patient to fasten the liability in case of negligence committed by  the doctor “To establish liability to a doctor where deviation from normal practice is alleged this facts require to be established first of all it must be proved that there is a usual and normal practice accordingly it must be proved that the defender has not adopted that practice and thereby (and this is crucial importance) it must be established that the course, the doctor adopted is one which no professional men of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three  facts and without all these three his case will fail”.

            In the case of Achyut Rao Haribhen Khodwa and others vs. State of Maharashtra the Hon’ble Supreme Court held “in the very nature of medical profession skills differs from doctor to doctor and more than one alternative course of treatment are available all admissible negligence cannot be attributed to the doctor so long as his performing his duties to be best of all ability and with due care and caution. Merely because chosen one course of action in preference to the other one available, he would not be liable if the course of action chosen by him as acceptable to the medical profession’.   

            Considering the facts and circumstances of the case and relying upon the decision as mentioned hereinabove, we have no hesitation to hold that the doctors had any negligence on their part in treating the said patient but unfortunately in spite of the best medical treatment rendered by them the unfortunate death of the patient had taken place. Accordingly we hold that the complainants have failed to prove the case against the o.ps. and the o.ps. are not liable to pay any compensation for committing any medical negligence on their part. Thus all the points are disposed of accordingly.

            Hence, ordered,

            That the CC No.293/2008 is dismissed on contest without cost against the o.ps.          

            Supply certified copy of this order to the parties free of cost.