This appeal is directed against the Final Order dated 06.01.2021 delivered by Ld. DCDRC, Uttar Dinajpur in CC No. 26 of 2018.
The said consumer dispute was raised by one SMT Sikha Day and others for claiming compensation against OP No.1 and 2, On account of medical negligence and deficiency of service on their part.
The Ld. District commission was satisfied with the evidences tendered and allowed the complaint and awarded infavour of the complainant.
The complainant’s case is nut shell is that the complainant is a 25 years old house wife having a six years old daughter and she conceived for the second time. Her husband took her to the Opposite Party No. 1 Dr. Arup Dey, an Obstetrician and gynecologist at his chamber at tank more Balurghat on 3rd April 2016. The complainant had been under regular treatment of Opposite Party No.1 Dr. Dey since the necessary report revealing her pregnancy, everything was going on normally as the physical condition of the complainant was quite usual. The complainant visited the Opposite Party No.1 at his chamber on 12th October 2016 for the last time and to her utter surprise, despite being a physician of a government hospital Opposite Party No.1 advised the complainant's husband to get his wife admitted to Matrisadan Nursing Home, at Balurghat. The very next day i.e., on 13th October 2016 within 8.00 A.M., as the baby according to Op No.1 got matured. The Opposite Party No.1 also informed the complainant and her husband that he is attached to that Nursing home and he had his OPD duty at the hospital on that day and in spite of repeated request of the complainant's husband to get the complainant admitted to the Balurghat District Hospital, the Opposite Party No. 1 insisted him to get his wife admitted to the Matrisadan Nursing Home and even he did not hesitate to write his advice in the prescription almost forgetting his designation that he is a physician of a government hospital.
The total package mentioned verbally by the Nursing Home Authority was Rs. 20,000/- According to the advice of Opposite Party No.1 the husband of the complainant got her admitted in the said nursing home at about 8.00 A.M. on 13th October 2016 and Opposite Party No.1 turned up at about 9:45 AM. and did the both operations L.U.C.S and Ligation of the complainant and left the nursing home hastily after 25 munities at about 10.10 AM. The complainant gave birth to a girl child at 9:50 A.M. The situation posed a critical turn when the husband of the complainant was informed over telephone at about 12:30 AM. on 14th October 2016 that the patient's condition become serious as the blood pressure had been falling critically. The husband of the complainant rushed at the Matrisadan Nursing Home and as per advice of Opposite Party No.1 arranged one unit of B+ blood from Balurghat District Hospital at 4 A.M. To make the situation worse, the patient's urine output stopped and finding no other way the Opposite Party No.1 then referred the patient to Balurghat District Hospital where she was admitted to CCU and there the patient started inflating. From 14th October 2016 to 19th October 2016 the hospital conducted blood test but after blood test no improvement was found and then the hospital authority referred the patient to R.G. Kar Hospital on 19th October 2016 as a case with the disorder of Hetero dense soft tissue mass like lesion (measure 9.96.cm x 9.00 cm. approx.) in left side iliac fossa and pelvic region (CT Scan Diagnosis). The complainant was brought to R.G Kar hospital by a life support Ambulance at 12:30 A.M. on 20th October 2016 and husband of the complainant was informed that jaundice had formed in the patient's body and there was complication in her intestine too and the condition of the patient became serious as blood started coming out through one point of C.S wound (1 day about 500 ml. semi liquid blood) and the patient was under conservative management. Then decision for laparotomy was taken and done as well. On laparotomy left side's rectus sheath hematoma of about 12 x 15 cm. size detected and drained as well. The patient was prescribed high dose antibiotic for 10 days as there develop a wound infection with high fever. According to the doctors all the complications arose as the patient was brought at R.G Kar hospital quite late and after going through a continuous battle for 47days the complainant started recovering but she was advised to take complete bed rest and she is still feeling pain in her abdomen. The complainant's husband already intimated before the West Bengal Medical council and also before the chief medical officer of health Dakshin Dinajpur and also before other authority for taking necessary action against the opposite parties for providing medicinal treatment in negligent manner.
Due to negligent activities on the part of Opposite Parties No. 1 and 2 the complainant deprived of proper service and she did not receive any relief rather she received severe physical harassment and injury and mental pain and she is suffering till today. Due to the said operation done by the Opposite Party No. 1 at the institute of the Opposite Party no.2 in negligent manner the complainant has to suffer for whole life and also for ever and the complainant's family also suffered from loss of her service to her family and the Opposite Party No. 1 and 2 are jointly and severally responsible for the same.
Under the aforesaid circumstances, the complainant has filed the instant case praying for compensation of Rs. 20,00,000/- (Twenty Lacs) only from the Opposite Parties Nos. 1 & 2 towards physical injury, mental pain and agony suffered by the complainant due to the treatment of the Opposite Parties in negligent manner and also for deprivation of the complainant from the proper treatment from the Opposite parties and also the cost of the proceedings.
The opposite parties No. 1 and 2 contested the case by filing two separate written version wherein the material averments made in the complaint are denied and it has been contended inter-alia that the instant case is not maintainable.
It has been contended by the Op No. 1 that he never insisted the complainant to be admitted in Nursing Home rather he repeatedly advised the patient to be admitted in the Balurghat District Hospital as Opposite Party No.1 is a medical officer attached to the said hospital but the patient party from the very beginning chose to have the delivery in nursing home and stated that they have no confidence to be treated in hospital. It has been further stated by the Opposite Party No.1 that the complainant Sikha Dey was having a post C/S pregnancy with hypothyroidism (was on tab Thyrox 25 mcg) visited few times to the Opposite Party No 1 during her antenatal period and necessary investigations were done time to time but in spite of advice of the Opposite Party No. 1. patient refused to do TSH, Liver function test, Anomaly scan etc. It has been further stated by the Op No. 1 that from the USG report dt. 22.09.2016 and last menstrual period (dt. 27.01.2016) of the patient maturity of the single live foetus was almost 38 weeks and as the patient was post C/S very much delay was then risky and for that reason C/S was done at Matrisadan on 13.10.2016 at 9:25 A.M. and before operation the husband of the complainant Mr. Suvankar Dey was explained at length that every probable complication that might arise as the case was of post C/S and hypothyroidism and Mr. Dey then consented for the operation and put his signature on the consent form as asked for in usual course of operation.
After operation the patient was quite well and found stable with BP, Pulse, urine output etc. but at midnight the patient developed hypertension and subsequently urine output decreased for which Opposite Party No.1 became present on call by the on-duty nurse and started necessary treatment. Anesthetist also attended and started conservative management including blood transfusion to increase the BP and urine output and then the doctors to take more care, decided to shift the patient to the Balurghat District Hospital after consultation with the patient party and the Opposite Party No.1 accompanied the patient during admission at Balurghat District Hospital on 14.10.2016 and shifted her to CCU to fasten the procedure and treatment was started and within few hours urine output started to increase and the patient became haemodtynamically stable and all routine investigation started time to time and conservative management was continued. On 16.10.2016 and 17.10.2016 the patient was overall stable except C/O abdominal distention and ultra-sonography test showed minimal collection in paritomal cavity and serum potassium level was low and on duty physician advised medicine and CT scan of abdomen and in the evening the superintendent of the hospital was requested to form a medical board for management of the case and on 18.10.2016 medical board was formed consisting of a senior gynecologist Dr. S. Pathak, senior Dr. Sen Sharma and Surgeon Dr. Subhashis Sarkar for better management of the patient. All the members of the board examined the case thoroughly and joint decision was taken to continue conservative management and waiting for CT scan of abdomen for taking final decision. After receiving the CT scan report on 18.10.2016 evening it was found that Sub acute intestinal obstruction possibly hematoma in the left iliac fosse and pelvic region with minimal periponial fluid collection and bilateral mild pleural effusion. After getting the CT scan report all the members discussed the case with the Opposite Party No.1 in presence of CMOH Dakshin Dinajpur and superintendent and final decision was taken for referring the patient to R.G. Kar medical college and hospital for the best safety of the patient as re laparotamy might be needed which always should be done at higher center. The next day i.e. 19.10.2016 the patient was referred and transferred to R.G. Kar medical college and hospital with the consent of the patient party in a well-equipped ambulance by the superintendent of the hospital and Opposite Party No.1 himself accompanied them for safety of the patient on the way from Balurghat to R.G. Kar medical college and hospital Kolkata and she was admitted there and handed over to the on duty RMO. Briefing the case by the Opposite Party No.1 and after admission there the patient was under conservative management and later on laparatomy was taken and left sided Rectus Sheaths Hematoma found and managed accordingly. It has been further stated by the Opposite Party No.1 that in spite of care and attentive service the husband of the patient after discharging of his wife from R.G. kar hospital and reaching at Balurghat started to harass and insult the Opposite Party No. 1 in different ways. It has been further stated by the Opposite Party No.1 that there arose no question of negligence and deficiency in service from any point of view regarding the treatment and operation and departmental enquiry held by Dr. N.G. Ojha and others did not find any fault and negligence of the Op No.1 and as such the complaint petition is liable to be dismissed.
It has been asserted by Opposite Party No.2 in his written version that the complainant was admitted to the Matrisadan for operation LUCS and Ligation at about 8.00 A.M. on 13.10.2016 as per self-willing and under care of Dr. Arup Dey NSGNO Kolkata and admission was done observing all formalities as per prevalent clinical system. The operation was done about 9:25 AM to 10:25 AM. by Dr. Arup Dey and other associate doctors and due observation care and attention was given to the patient as normally extended to other patient from the part of the Doctors of Matrisadan and the patient was in good condition but on 14.10.2016 at about 2:15 A.M. some critical complication was found by the nursing staff of Matrisadan and then and there the Doctor and patient parties were informed and treatment was started by the doctors but the patient party became restless and unwilling to retain the patient at Matrisadan and accordingly. the doctor referred the patient to Balurghat District Hospital and the patient was released and brought to the District Hospital for better treatment at about 6 A.M. The Opposite Party No.2 used to provide better service to save the life and accordingly released the patient immediately when told to do so by Opposite Party No.1 without getting any payment from the patient party till date and there was no negligence or deficiency in rendering service by the Opposite Party No 2 and accordingly, the complainant is not entitled to get any relief as prayed for and the instant case is liable to be dismissed.
After recording evidence and hearing arguments Ld. District Commission came to an observation that both The OP No. 1 and 2 as the physician and hospital authority was found to be committed negligence on their part and for that reason, they were liable to pay compention.
Being aggrieved with this order this appeal was registered the grounds contended in the Memo of appeal by OP No.1 against the complainant and OP No. 2 proforma respondent.
OP No. 1 as respondent No.1 has contested the appeal through Ld. Advocate Mr. B.B. Bhowmik by furnishing W.N.A. Ld. Advocate Mr. C. Chakrabarty respondent No2 (Op No.2 did not contest the appeal.
Decision with reasons
Having heard the Ld. Advocate of both sides it has established without any dispute that the OP No. 1 (appellant) as a reputed obstetrician and gynecoligist at first examined the complainant at his practicing chamber on 03.04.2016 while the complainant conceived second time. Since then, the complainant was under the treatment and care of the appellant Dr. Dey at Pre-delivery stage Dr. Dey examined the complainant for the last time on 12.10.2016 and advised the husband of the complainant to admit the expected Mother to the Balurghat Matri Sadan for delivery through the process of L.U.C.S and thereafter ligation.
Accordingly, the patient was admitted there on 13.10.2016 at 8 A.M. and the process of L.U.C.S. and ligation completed by 10.10 A.M. on that very date. There after the problems cropped up.
During the course of hearing the appeal Ld. Advocate of the appellant mentioned that patients was all along normal during her antennal period and on last check up on 12.10.2016, the physical condition of the patient and her fetus were very normal. The patients party intended to have the process of delivery through pvt. Nursing Home and for that reason, the doctor preferred the OP No. 2 maternity home. The doctor had no choice or any SPL. Preference in this regard.
He further mentioned that it is well known to the patient party that there is no ICU or CCU at present in Matrisadan or rather nowhere at Balurghat or Dakshin Dinajpur. It is explained to the patient party that if any un toward serious problem arises patient may have to be shifted to higher center as per the protocol of the medical treatment.
At Matrisadan many caeserian cases and surgical cases including operative laparascopic are done like gall bladder, hernia, appendix etc. knowing the absence of ICU, CCU, the respondent no. 1 allowing patient admission in total administrative part and absolutely not fault or negligence on the part of appellant.
On 13.10.2016 the operation started at 09:25 am and finished at 10:35 am, operation took more than 1 hour and after checkup by the appellant and anaesthetist, the appellant left the Matrisadan.
Patient was doing well, BP Pulse and other were normal but at mid night the patient developed hypotension lowering of BP and decreased urine out-put.
Necessary all investigation was done and patient was shifted to Balurghat Hospital for decreased urine output which was treated within few hours and the respondent no. 1 patient was stable.
After treatment including examination on the routine test was normal except low potassium level and urinary tract infection found which could be a cause of abdominal distention in post operative cases. Superintendent of the Balurghat Hospital formed a medical board for the better treatment of the respondent no. 1 Medical Board came to the decision of referring to a higher center after through discussion with the patient party, referred the patient party to RG Kar Hospital.
On 19.10.2016 the patient was shifted to RG Kar Medical College by a well-equipped Ambulance which was arranged by the superintendent and the appellant accompanied them for patient's safely. During journey the patient was absolutely stable. After getting admission in RG Kar Medical College the appellant handed over to on duty RMO briefing the case.
Thereafter, after getting treatment from RG Kar Hospital, patient respondent no. 1 was normal and she had no complication relating to the treatment provided by the appellant and there was no latches and negligence on the part of the appellant. No medical report or opinion of the higher center mentioned that there was any negligence on the part of the appellant and on the opinion of the expert the complainant respondent cannot submit that she was suffered due to the negligence of the appellant doctor. But there was an enquiry done by the Dr. NG Ojha of Sastho Bhawan which is apex health authority of West Bengal (which not to be relied by the Ld. District Consumer Forum, surprising).
It is the basic element of the negligence as per the settled principle to prove a case of medical negligence against any surgeon, physician, hospital and nursing home. The complainant respondent has to prove the basic element of negligence are:
a) Duty of Care.
b) Breach of duty.
c) Cause in fact.
d) Proximate cause.
e) Resulting damage which basic element of negligence and to prove the case of negligence.
All the criteria must be satisfied in full but in this present complaint has not stated any single line against the appellant doctor.
In this present case there was no evidence to show that there was negligence done by the appellant as per the observation of the Apex Court even the complainant respondent has not submitted any proper opinion of the medical expert, Gynecologist of the any Government Hospital or reputed authorized medical centre like AIMS, CMS at Vellore, NBMC&H etc.
Hon'ble Supreme Court as per the judgment and decree it is specifically mentioned in the judgment CPJ (2009) 32 (SC) in Halbury's Laws (Annexure marked as 4) of England the degree of skill and care required by a medical practitioner is stated as follows: The practitioner must bring to his task a reasonable degree of skill, knowledge and must exercise a reasonable degree of care.
Neither the very highest or low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment of operated in a different way, nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown 1) that there is a usual and normal practice, 2) that the defendant has not adopted it, and 3) that the course in fact adopted is one no professional man of ordinary skill would have taken had been acting with ordinary care"
Medical complications and medical negligence is not same/synonymous. In medical field either medicine related many complications arises like different types of side effects, drug hypersensitivity/allergic reactions, overdosing, under actions or surgical complications even inspite of best precautions which are part of treatment. Possibility of complications are always in medical field (may be high or may occur though even rare) which are written in standard text books also and happens with even expert, efficient, senior physician/surgeon. So, complications do not
mean negligence.
Thus a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves surgical gauze inside the patient after an operation vide achutrao, Haribhau Khodwa & Others V. State of Maharashtra & others, AIR 1996 SC 2377. (Annexure marked as 5).
It is most important to submit that the complainant respondent did not follow up the advice of the doctor as prescribed in the prescription of the appellant.
Ld. Advocate of the respondent No1. countered this argument through WNA and contended the patient party fully trusted upon Opposite Party No 1 and according to his advice the complainant took admission in Matrisadan nursing home on 13.10 2016 in the morning and on that date at about 9.25 A.M. the Opposite Party No I performed surgery of IUCS and Ligation of the patient. within 24 hours of the operation i.e. at about 12:30 AM complication arose and the condition of the patient became deteriorated as her blood pressure gradually decreased and urine output was totally stopped and as there was no ICU and CCU in Matrisadan Nursing Home the OP No. 1 was compelled to transfer the patient to Balurghat District Hospital on 14 10 2016 in the Moring and she was taken in CCU It is not disputed that Opposite Party No 1 is an obstetrician and Gynecologist attachbed to Balurghat District Hospital and he is also attached to matrisadan, so it was well aware of the facts that the matrisadan did not have any ICU and CCU facility for post operative needs. When it was well within the knowledge of the Dr. that the complainant was having a case post C'S pregnancy with hypothyroidism (was on tab Thyrox 25 mg) how the Opposite Party No.1 took decision to perform surgery of LUCS and Ligation of the patient in a nursing home which did not have the ICU or CCU for post operative needs and this act of Opposite Party No.1 is amounted to medical negligence.
The operating doctor is the only choice maker because doctor gave written advice in spite of knowing that this patient was very critical patient, who might needed post-operative care, still being operated in nursing home, which don't have ICU/CCU. Knowing very well aware of the fact that the absence of ICU/CCU in Matrisadan, the Respondent no. 2, allowed patient admission is totally on the prescription of Doctor, that is the Appellant, not at all administrative Part.
now a days there are some doctors and nursing home who in the guise of doing service to humanity have continued commercial activities and have been extracting money from helpless patients and their family member and do not provide the necessary service.
In post-operative patient sudden violent cough, sudden repeated sneezing, vomiting, constipation etc. causes that raises inta-abdominal pressure (apparently innocent looking causes) may cause rectus sheath haematoma formation". So it is within the knowledge of the treating doctor that even after operation of the patient those things as averred by the appellant can be huppen but in case of the Appellant/OP. No. 1 has not taken any precaution or has not taken any post operative masure to resist the same.
It is well settled law that in every case the expert opinion is not necessary where the negligence and deficiency in service of the treating doctor is established from the facts and circumstances of the case.
In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the things (s) proves itself in such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
After hearing both sides and on proper serutinization of evidence, interrogatories and replies by affidavit of both sides and available documents with Memo of appeal it is quite established that there is deficiency in service on the part of Opposite Party No 1 who being an obstetrician and gynecologist of Balurghat District Hospital advised the complainant to take admission in the Matrisadan nursing home for operations of LUCS and Ligation for his personal gain although there was no ICU or CCU in the said nursing home which was required for post operative needs of the patient and thus the Opposite Party No 1 has violated the professional ethics Again we find that Opposite Party No. 1 referred the patient to Balurghat District Hospital on 14.10.2016 considering the critical condition of the patient and the patient was taking to CCU and during her stay at Balurghat Hospital from 14 10 2016 to 19.10.2016 save an except performing some grouping blood test the Opposite Party No 1 did not think it necessary to consult with other seniors doctors and lastly on 18.10.2016 after getting the CT Scan report the Opposite Party No.1 referred the patient to RG Kar medical college and hospital without assigning any reason in the bed head ticket. If Opposite Party No. 1 failed to assess the condition of the patient properly during the post operative stage, he could refer the patient to R.G. Kar medical college and hospital or any other hospital in Kolkata in earlier stage but the Opposite Party No.1 failed to exercise a reasonable degree skill and care in handling the patient and lastly referred her to R.G. Kar medical college and hospital on 19.10.2016 when the condition of the patient was gradually deteriorating.
Thus, this bench does not find any cogent ground to differ with the observations and findings of the Ld. District Commission and also do not find any merit at all in the instant appeal.
Hence it is ordered,
That the appeal be and the same is hereby dismissed on contest without any cost.
It the appellant (OP No.1) complies the order of Ld. Dist Commission within 45 days from this day of Final Order in appeal, no interest will be levied from him on the decretal amount.
Let the copy of this order be supplied to the parties free of cost and be communicated to the Ld. DCDRC, Uttar Dinajpur by sending the copy of this order.
