Tripura

StateCommission

A/51/2016

Dr. Partha Pratim Saha - Complainant(s)

Versus

Smt. Sumi Das(Indu) - Opp.Party(s)

Mr. P.K Biswas, Mr. R.L Nath, Mr. P.Majumder, Mr. M.K Biswas, Mrs. C.Bhowmik, Mrs. P.Mog

11 Sep 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.51.2016

1. Dr. Partha Pratim Saha,
   C/o Devlok Hospital,
   24, Dimsagar, Opposite of Astabal Playground,
   (Presently Vivekananda Stadium),
   P.S. West Agartala,
   District - West Tripura.

 

2. Dr. Bedabrata Pathak,
   C/o Devlok Hospital,
   24, Dimsagar, Opposite of Astabal Playground,
   (Presently Vivekananda Stadium),
   P.S. West Agartala,
   District - West Tripura.

….    ….    ….    …. Appellant/Opposite party No.1 & 2.

Vs

1. Smt. Sumi Das (Indu),
   W/o Sri Kaushik Indu,
   Resident of East Thana Road,
   Banamalipur, P.S. East Agartala,

District - West Tripura.

                                        ….    ….    ….    ….    …. Respondent/Complainant.
 

2. Dr. Anupam Chakraborty,
   C/o Devlok Hospital,

Resident of Krishna Nagar,
Near Chhatra Sangha,
P.S. West Agartala,
District - West Tripura.

….    ….    ….    …. Respondent/Opposite party No.3.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

 

 

For the Appellants:                                              Mr. Pranabashis Majumder, Adv. 

For the Respondent No.1:                                    Mr. Sankar Lodh, Adv.

For the Respondent No.2:                                    Absent.

Date of Hearing:                                                  19.08.2017

Date of Delivery of Judgment:                             11.09.2017.

 

J U D G M E N T

 

U.B. Saha,J,

This appeal is directed against the judgment dated 18.11.2016 passed by the learned District Consumer Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum)  in Case No.  C.C. 81 of 2015 whereby and whereunder, the learned District Forum directed both the appellants, namely, Dr. Partha Pratim Saha and Dr. Bedabrata Pathak, (hereinafter referred to as opposite party No.1 and 2) to pay an amount of Rs.4,00000/- to the complainant-petitioner towards costs of her treatment, cost of sufferings and litigation cost for their deficiency of service and medical negligence while doing the laparoscopic operation upon her. Both of them were made jointly and severally responsible to pay the said amount. The payment is to be made within two months, if not paid, it will carry interest @ 9% per annum.

2. Heard Mr. Pranabashis Majumder, learned counsel appearing for the appellants as well as Mr. Sankar Lodh, learned counsel appearing for the respondent No.1-complainant.  None appears for and on behalf of the respondent No.2.
3. The facts needed to be discussed are as follows:-

The complainant, Smt. Sumi Das (Indu), submitted an application before the learned District Forum against the appellant opposite party no.1 and 2 and another doctor, namely, Dr. Anupam Chakraborty, respondent opposite party No.3 claiming compensation for deficiency of their service on her treatment at Devlok Hospital. Her case, in short, is that being attracted by an advertisement of Devlok Hospital in the newspaper, wherein it was mentioned  that Dr. Pathak, a Laparoscopic Surgeon, OP No.2 would perform some laparoscopic operation of gall bladder stone in an attractive package and the Devlok Hospital invited for registration of the name of the patients for conducting the said laparoscopic operation of gall bladder stone and having satisfied with the same, the complainant and her husband went to  the said hospital carrying all reports including the report of her ultra-sonography. On their arrival, they were informed from the said hospital that first of all, Dr. Partha Pratim Saha, OP No.1 would examine the patient and thereafter he would decide whether the patient is ready for laparoscopic operation or not. On being satisfied and permitted by Dr. Saha, the complainant (the patient) would have to be admitted in the hospital. Thereafter, Dr. Pathak, the Laparoscopic surgeon, OP No.2, would examine the patient. If he satisfied, he would conduct the laparoscopic operation. After operation, the patient would have to remain in the hospital for 24 hours.  The surgeon would again examine the patient and if satisfied, she would be discharged from the hospital.

The complainant and her husband being influenced then visited the chamber of Dr. Saha, OP No.1 at Devlok Hospital and after seeing the old sonography report and other reports, Dr. Saha advised for some blood test of the complainant. On query, Dr. Saha told them that no further sonography of abdomen would be required. Accordingly, some blood tests were done at Devlok hospital and on perusal of the blood report, Dr. Saha, OP No.1 asked the complainant to come at 9.00 a.m. on 15.11.2013 in empty stomach to the Devlok Hospital for laparoscopic operation.

Accordingly, the complainant and her husband came to the Devlok Hospital at 9.00 morning on that day in empty stomach and she was taken admitted. The name of the attending doctor was Dr. Anupam Chakraborty, OP No.3. On her asking, the said doctor informed the complainant that the concerned doctor was not available in the hospital at that time. Again, when she wanted to meet Dr. Saha and Dr. Pathak, OP No.1 and 2, she came to know that neither Dr. Saha nor Dr. Pathak was available in the hospital at that relevant time. So, the complainant and her husband along with their relatives had to wait for about one and half an hour at the waiting room, but nobody was found in the said hospital to give any information to them. At last, at about 10.20 am without any examination, she was taken into the hospital by some officials of the said hospital, as they were instructed by Dr. Saha, OP No.1. Immediately thereafter, she and her relatives came to know that Dr. Pathak was not in the hospital and on their repeated asking; they were intimated that the surgeon would come at 1.00 p.m. In the evening, one doctor came to examine her and told the complainant that the operation would be done at night. Later, the complainant came to know that the attending doctor was Dr. Anupam Chakraborty, OP No.3. But the doctors of Devlok Hospital did not give her husband and her relatives any information regarding the complainant, although they were waiting since morning. Suddenly it was informed that the operation of the complainant would be conducted at 09.00 p.m. by Dr. Pathak.

It is also stated that prior to taking her into the operation theatre, no surgeon examined her and after entering into the operation room also, the complainant did not find any doctor. Then one unknown person gave something like musk on the face of the complainant and soon thereafter, the complainant became senseless.

After about one hour, when she regained her sense, it was informed that the operation was successful. The complainant came to know that one gall bladder and some stones were shown to the husband of the complainant stating that stones were in that gall bladder. When her husband asked the doctors of the said hospital to know about the complainant, he was informed that the complainant was sleeping and he should come on the next day morning.

Even on the next day morning, the complainant was not examined by any Surgeon and one attending doctor, namely, Sri Sovik De informed her that her operation was conducted by Dr. Pathak, OP No.2, but she could not know who Dr. Pathak was.

It is further stated that though assured that the patient would remain under keen observation, but surprisingly the complainant was released from that hospital on the next day morning, when Dr. Saha, OP No.1 told that the complainant was all right and she did not require to remain in the hospital. Accordingly, at 10.00 a.m., she was discharged from the hospital. At the time of discharge, the complainant was given Patient Discharge Summary report along with prescription prepared by Dr. Sovik De, but no doctor signed it as consultant.

In the summary report, the complainant was advised to review after seven days, but after seven days, i.e., on 23.11.2013, while the complainant contacted with Devlok Hospital over telephone, she was informed that no doctor was available in the hospital on that day. Subsequently, in the intervening night of 23.11.2013 and 24.11.2013, all on a sudden, the complainant fell seriously ill with abdominal pain.  Again, in the morning of 24.11.2013, when the husband of the complainant informed the condition of the complainant to Devlok hospital, he was informed that no attending doctor was available. Then the husband of the complainant informed the condition of the complainant to Dr. Saha over phone who told him that he was in Kolkata and he had nothing to do. Dr. Saha, OP No.1 also informed the husband of the complainant that Dr. Pathak was not at Agartala on that day.

In that situation, finding no other alternative, the complainant was brought to “The Care and Cure” Polyclinic & Medical Research Centre situated at Palace Compound, Agartala where Dr. Ajoy Saha examined the complainant. As advised, then the complainant got admitted in that Polyclinic and some medicines were given to her, but the condition of the complainant was deteriorating. So, Dr. Ajoy Saha advised the complainant to consult with the surgeon (Dr. Pathak) who conducted the operation, as the said surgeon was the best person to say what he saw and what he did at the time of operation. Therefore, the husband of the complainant again contacted with Dr. Saha, OP No.1, who on being heard the condition of the complainant replied that he was not a surgeon and advised the husband of the complainant to go to Guwahati where Dr. Pathak, OP No.2 would be available. So, the husband of the complainant contacted with Dr. Pathak over mobile phone and informed the condition of the complainant, but he denied coming to Agartala to see the complainant.

Thereafter, on 29.11.2013, one ultrasonography was done and after getting report, Dr. Ajoy Saha discharged the complainant and referred her to consult a higher centre for further management. So, the husband of the complainant took her to ILS Hospital and on emergency she was admitted to that Hospital with upper abdominal pain and fever. There Surgeon Dr. Nirmalya Bagchi after examining her advised for immediate operation. Accordingly, on the next morning, i.e., on 30.11.2013, another operation was done opening the abdomen and she had to remain in ICU for three days. Later, on 7.12.2013, she was discharged from the said hospital. The final diagnosis of the surgeon was that the complainant was suffering from post-Laparoscopic Cholecystectomy Biliary Peritonitis with common bile duct injury with retained stone. The Surgeon Dr. Bagchi had shown seven stones which were extracted during the second operation at the ILS Hospital. She was discharged with T-tube drainage and on 12.12.2013, the condition of her health was reviewed. Since then, she is still seriously ill and living under strict medical supervision.

Subsequently, the complainant lodged a complaint under Section 338 of the IPC before the Chief Judicial Magistrate, West Tripura, Agartala, which was registered as CR. Case No. 36 of 2014 against the appellant opposite parties. The opposite parties appeared and prayed for bail. Bail was granted and the said case is pending for trial. In the aforesaid CR case, the matter between the complainant and the opposite party No.3 has been amicably settled as the OP No.3 apologized.

As there was deficiency in service while doing operation upon her at Devlok Hospital by the opposite parties, she filed a complaint petition also before the learned District Forum claiming compensation of Rs.3,96,311.00 with 9% interest from the date of claim.

          OP No.3, Dr. Anupam Chakraborty after appearing before the District Forum filed his written statement by way of affidavit wherein it is stated that the laparoscopic operation of the complainant was done and the operation was conducted by Dr. Partha Pratim Saha and Dr. Bedabrata Pathak, the opposite party No. 1 and 2 and he had no role in the operation. OP No.1 and 2 also submitted their written statement wherein it is stated that there was no medical negligence on their part. The complainant remained under medical observation for 24 hours after operation and she did not keep any contact with Devlok Hospital after her operation and that no stone was removed in the second operation. They have also denied regarding any advertisement in the newspaper for any treatment at Devlok Hospital by Dr. Pathak, OP No.2.

4. The claimant produced the prescription of Dr. Partha Pratim Saha, USG report, patient discharge summary, prescription of Care and Cure Nursing Home, patient discharge summary, prescription of Dr. Nirmalya Bagchi, patient discharge summary of ILS Hospital, cash memo of Devlok and ILS Hospital. The complainant also produced the statement on affidavit of two witnesses, she herself and her husband Koushik Indu. She has also submitted the statement on affidavit of Dr. Nirmalya Bagchi of ILS Hospital who did the second operation.
5. The opposite parties, on the other hand, have produced in-patient record and patient discharge summary and also produced statement on affidavit of Dr. Bedabrata Pathak (O.P No.2) who appeared and was cross-examined by the complainant. Dr. Partha Pratim Saha (OP No.1) neither appeared nor produced any statement on oath except filing the written statement.
6. The learned District Forum on the basis of the pleadings of the parties as well as evidence on record framed the following points for deciding the complaint case:

1. Whether there was medical negligence in the Devlok Hospital where laparoscopic operation was done by Dr. Bedabrata Pathak and Dr. Partha Pratim Saha?
2. Whether the petitioner is entitled to get compensation for sufferings due to deficiency of service by the doctors?

7. The learned District Forum considering  the evidence on record in its finding stated that admittedly the complainant was admitted and treated in the Devlok Hospital, Agartala for gall bladder stone operation where Dr. Bedabrata Pathak, OP No.2, the laparoscopic surgeon operated her along with Dr. Partha Pratim Saha, OP No.1. In its finding, learned District Forum also stated that in the discharge summary of Devlok hospital, nothing mentioned about the ultrasonography report. Dr. Pathak in his evidence stated that he met the complainant Sumi Das (Indu) on the date of operation i.e. on 15.11.2013. He had gone through the investigation report, consulted with Dr. Partha Pratim Saha and then decided for operation. He has also stated that ultrasonography was done after 7.4.2013 and from his evidence, it is clear that relying on the said ultrasonography report and after consultation with Dr. Partha Pratim Saha, the Gynecologist, he decided for doing the laparoscopic operation without any talk with the patient or her relatives.
8. Mr. Majumder, Ld. Counsel for the appellant-opposite parties while urging for setting aside the impugned judgment has submitted that admittedly, the respondent No.1- the complainant was admitted and operated in the Devlok Hospital, but the said Devlok Hospital was not made party in the complaint case for which itself the impugned judgment is liable to be set aside. He further submits that the evidence of P.W.3, Dr. Nirmalya Bagchi of ILS Hospital cannot be considered for the purpose of any negligence committed by the appellants, as there was no injury at the time of laparoscopic surgery done by Dr. Bedabrata Pathak i.e. the appellant herein. He has also relied upon the evidence of Dr. Bedabrata Pathak, particularly, the cross-examination wherein he has stated, “In the prescription of Dr. Partha Pratim Saha no USG was written after 07.04.13. Dr. Partha Pratim Saha is a Gynecologist. He is also doing laparoscopy. This is the USG report of ILS hospital dt. 28.06.13 which I have consulted. I have done laparoscopic surgery of Sumi Das Indu. The stone size may differ and it can also change its position. In the USG report of ILS I find no injury in the bile duct.” Mr. Majumder has again submitted that the opposite party no.2 has conducted the laparoscopic surgery on the basis of Ultrasonography (USG) report produced by the complainant after following the necessary examination and there was no negligence on the part of Dr. Pathak, but the Ld. District Forum in the impugned judgment, in its findings, held that there were negligence and deficiency of service by the opposite parties during operation, which is contrary to the evidence on record.

Mr. Majumder has finally contended that the medical professionals are not to be unnecessary harassed. They are entitled to get protection so long as they perform their duties with reasonable skills and competence in the interest of the parties. He further submits that Dr. Partha Pratim Saha did not take part in the process of operation of the complainant. But admittedly he is one of the owners of the Devlok Hospital.  In support of his aforesaid contention, he has relied upon a decision of the Hon’ble Apex Court in Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors, 2010 AIR SCW 1315 wherein the Hon’ble Apex Court considered its earlier decision in Poonam Verma Vs. Ashwin Patel & Ors. (1996) 4 SCC 332 and the judgment in Bolam Vs. Friern Hospital Management Committee (1957) 2 All ER 118, wherein it is noted “……I myself would prefer to put it in this way: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men in that particular art.”

9. Mr. Lodh, Ld. Counsel appearing on behalf of the respondent-complainant while resisting with the contention of Mr. Majumder regarding non-joinder of party of Devlok Hospital would contend that the appellants did not raise any objection regarding such non-joinder of parties before the Ld. District Forum, i.e. at the earliest opportunity and now in the appellate stage, they cannot raise such point, as such objection was not so taken before the Ld. District Forum, thus the point regarding non-joinder of parties be deemed to have been waived. He has also submitted that as the appellant opposite parties did not raise objection as to the non-joinder of parties in their written statement, the Ld. District Forum also did not get any opportunity to frame any issue and discuss the issue on non-joinder of parties. He further submits that for non-joinder of Devlok Hospital as one of the party, the case of the complainant cannot be dismissed as because, owner of the Devlok Hospital i.e. Dr. Partha Pratim Saha is made a party and more so, it is not denied by the appellants that the complainant was admitted in the Devlok Hospital and her laparoscopic surgery was also admittedly done there, thus she is a consumer. He further submits that appellants did not advice for any ultrasonography (USG) of the complainant immediately before the operation, but relied upon on a USG report of 28.06.2013 which has been admitted by the opposite party no.2 in his cross-examination and such a conduct of the appellants itself is a negligence. He has also contended that in Paragraph-11 of the statement on oath of Dr. Pathak, he has also denied the contention of the complainant that, first of all, Dr. Partha Pratim Saha, would examine the patient and thereafter he would decide whether the patient was ready for laparoscopic operation or not, and that, if Dr. Partha Pratim Saha satisfied and permitted to conduct laparoscopic operation, then the complainant would have to be admitted in that hospital and that, then, Dr. Pathak would examine her and after examining if satisfied, he would conduct laparoscopic operation, though in his cross-examination, he admitted that he met first time with the complainant-patient, Sumi Das (Indu) on 15^th November, 2013 on the date of operation and he had gone through all the investigation report, consulted with Dr. Partha Pratim Saha and then decided for operation. Therefore, it would not be proper to rely upon the evidence of Dr. Pathak. Mr. Lodh has also taken us to the Discharge Certificate of Devlok Hospital to show that the Hospital Authority suggested for review after seven days, but when the complainant communicated with the hospital after seven days with her complication neither Dr. Partha Pratim Saha nor Dr. Bedabrata Pathak was available and as a result, she had no other alternative except to get admitted herself in the ILS Hospital for open surgery of Gall Bladder, that itself was a negligence of the appellants so far the post-operative care is concerned.

          In support of his contention regarding non-joinder of Devlok Hospital as alleged by the appellant, he has relied upon the Order 1 Rule 13 of the CPC wherein it is stated that “all objections on the ground of non-joinder or mis joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been  waived.”

          He has relied upon a decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Dr. Pradeep Kumar Dhillon Vs. Neena Rani,  2015 (4) CPR 773, particularly para- 5, 8 and 9 which are as follows:

“5.       We have heard the learned counsel for the petitioner at the admission stage.  He vehemently argued that the OP performed LSCS properly.  The placenta was adherent.  Therefore, it was not extracted completely.  He further stated that complaint was bad for non-joinder of parties. The OP was the employee of Swami Premanand Charitable Hospital. Therefore, as such, the complainant had not hired any services from OP.  The OP is a qualified a Gynecologist and fully competent.  Even, DMC Hospital, Ludhiana had provided the same treatment.

8.         We are quite surprised to find the way the OP performed LSCS.  Baby girl was removed surgically from uterus, and therefore, there should not be a chance of retention of bits of placenta. It is thus clear that, OP doctor failed to clear or inspect the uterine cavity after delivery of baby. Therefore, it was negligence.  It is pertinent to note that, the patient approached the OP with complaints of bleeding, but she was given only medication, not investigated properly. She was subsequently treated at DMC, Ludhiana by Dr. Ashima Taneja, who was arrayed as CW - 2 before the District Forum.  She had done VISE for cleaning uterus on 29.10.2013 and sent the specimen which was confirmed as placental tissue by histopathology. The District Forum has examined Dr. Sukhprret Kaur Dhami as well as Dr. Ashmia Taneja, who   confirmed that it was a case of retention of placenta. The said evidence was not rebutted by the OP.

9.         We do not accept the contention of petitioner about non joinder of parties because the relevant documents and reports are sufficient evidence in this pertinent case.  Also, there is no cogent evidence that patient was treated free of cost, therefore, the patient was consumer.”

          He has also relied upon a decision of the Hon’ble Apex Court in Smt. Savita Garg Vs.  Director, National Heart Institute, 2004 AIR SCW 5820 wherein the Hon’ble Apex Court noted, inter alia, that

“So far as the law with regard to the non-joinder of necessary party under Code of Civil Procedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC there also even no suit shall fail because of mis-joinder or non-joinder of parties. It can proceed against the persons who are parties before the Court. Even the Court has the power under Order 1 Rule 10(4) to give direction to implead a person who is a necessary party. Therefore, even if after the direction given by the Commission the concerned doctor and the nursing staff who were looking after the deceased A.K. Garg have not been impleaded as opposite parties it cannot result in dismissal of the original petition as a whole.”

Relying upon the aforesaid observation of the Hon’ble Apex Court, Mr. Lodh submits that in the instant case, the appellants who operated the complainant have been made party and the OP No.1 being the owner of the Devlok Hospital, non-joinder of Devlok Hospital as party in the proceeding would in no way affect the complaint petition.

In support of his aforesaid contention so far post-operative care is concerned, he has relied upon a decision of the State Consumer Disputes Redressal Commission, Tamil Nadu in the case of K. Thirunavukkarasu Vs International Centre for Cardio Theoratic & Ors. 2015STPL 3207 TN [2015 (1) CPR 1] wherein taking note of some judgments of the Hon’ble Apex Court relied upon by the opposite parties therein ultimately held that:

“………..Though the opposite parties alleged that proper care was taken in giving treatment and procedures followed and as for as the post operative care is consented in view of the records relied upon by the complainant under Ex.A.2 to A.4 and A.9 and also as per the documents under Ex.A.9 because of post-operative care not properly given relating to the sutures in sternum (chest bone) the complainant was made to suffer with pain and consequential sufferings and even though the subsequent surgery and alleged procedure with anesthesia was made to set right the loosened sutures which made the unhealed wounds in chest creating psychological fear to the complainant leading to pain and sufferings even after two years and thereby the 2nd opinion obtained from Madras Medical Mission advised for the surgery, if necessary the complainant intended to take by following all the preliminary procedure for undergoing Angio evolution etc., and thereby we are of the view, there is negligence and deficiency in giving post operative care while closing the sternum by way of suturing and other process which caused alleged trouble in the chest and other complications to the complainant, for which the complainant is entitled for compensation and accordingly this point is answered.”

He has also relied upon the case of Dr. S.P. Gupta & Anr. Vs. Sukhdev Raj Kaushal & Anr. 2016 STPL 13229 NC [2016 (3) CPR 494] particularly, Para-14, which is reproduced hereunder:

“It is important to note that, every patient expects reasonable care from the treating doctor, but highest degree of skill and care is expected from the specialist in that subject. The complications could have been avoided, if OP-1 had investigated the patient and made correct diagnosis. It was not an expected standard or practice or reasonable care from OP-1. No doubt the complications were treated by OP-1 properly, but it will not absolve him from the negligence committed by him at the initial stage, for want of proper and adequate investigation.”

He has also contended that even after laparoscopic surgery of the complainant in the Devlok Hospital, she had to undergo treatment in the Care and Cure Polyclinic & Medical Research Centre and thereafter as suggested by Dr. Ajoy Saha, she had  admitted herself in the ILS Hospital wherein Dr. Nirmalya Bagchi, a surgeon after examining her advised  for immediate operation, as according to him, the complainant was suffering from Post-Laparoscopic Cholecystectomy Biliary Peritonitis with common bile duct injury with retained stone. And such opinion of Dr. Bagchi was rightly considered by the District Forum as expert opinion and medical negligence on the part of the appellant opposite parties.

In support of his contention, he has relied upon a decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, A. Padmavathi Vs M. Vijayendra & Anr. 2016 (2) CPR 662.

The facts of that case are that the complainant Padmavathi was suffering from recurring abdominal pain and uterine bleeding. She underwent Tran’s abdominal hysterectomy (TAH) at OP2 Heritage Hospital on 24.07.2004.  It was performed by Dr. M. Vijayendra, OP1. She was discharged on 2.8.2004. After one week, she suffered abdominal pain and urinary obstruction. Therefore, she approached Sai Sadan Hospital, which in turn referred her back to OP2 hospital on 10.8.2004. But OP2 referred her to NIMS (Nizam Institute of Medical Science and Research Foundation) hospital for further treatment on 11.8.2004 wherein she was diagnosed as the case of post TAH with left ureteric injury with septicemia. She was operated there on 17.8.2004 and discharged on 8.9.2004. Thereafter, during continuous treatment, again she underwent another surgery on 9.12.2004. The doctor at NIMS opined that the initial surgery of TAH was not properly conducted by OP1, it caused ureteric injury. Hence, there was a leakage of urine into the abdomen leading to septicemia. The patient incurred huge expenditure for the entire treatment. Therefore, the patient filed a complaint before the District Forum, Hyderabad. The District Form dismissed the complaint against which she approached the State Commission in appeal which was allowed and the State Commission directed OP 1 and 2 to pay jointly and severally Rs.2 lakhs to the complainant along with the cost of Rs.3,000/-.

Being aggrieved by the decision of the State Commission, both the parties preferred revision petitions before the Hon’ble National Commission wherein the complainant submitted that the OP1 is a surgeon, not a gynecologist. He is not qualified to perform TAH operation. At the initial stage only, OP should have referred the patient to higher institute like NIMS. It was an act of omission by the OP1. No informed consent was taken, not explained about possible complications. The operation was performed on 24.7.2004 whereas, consent was taken on 22.7.2004. Thirdly, when the patient was referred back to OP1 on 10.8.2004, OP has not treated the patient properly but referred to NIMS to conceal his mistake.

10. In the instant case also, Dr. Partha Pratim Saha is not a laparoscopic surgeon for operation of gall bladder, but a gynecologist and admittedly, OP No.2, Dr. Bedabrata Pathak without any discussion with the complainant, the patient, and without suggesting for ultrasonography of the patient before conducting the laparoscopic surgery relied upon on the opinion of Dr. Saha, OP No.1, who also participated in the process of operation of the complainant as per written statement of the O.P.W.3. Not only that, thereafter also, when the complainant patient contacted with the OP appellants, she did not get any help from them. In the result, she had to get admitted herself in the ILS Hospital where she underwent second operation. Therefore, according to us, the case of Padmavathi (supra) is applicable in the instant case.
11. After going through the evidence on record, we are of the opinion that the complainant made out a prima facie case in support of her complaint. It is the duty of the appellant opposite parties to bring their case since it is only OPs who are aware the exact line of treatment that has been given to the patient. Once a claim petition is filed and the complainant has successfully discharged the initial burden on her that the hospital/doctor was negligent and in the result of such negligent, she suffered and also incurred a substantial amount for undergoing second time operation in the ILS Hospital, the burden lies on the appellant OPs who treated the patient to show that no negligence was involved in the treatment. In the instant case, OPs failed to show that there was no negligence on their part. More so, admittedly, though Dr. Partha Pratim Saha, OP No.1 submitted his written statement, but did not appear and examine himself before the District Forum. Therefore, the said written statement cannot be treated as evidence.
12. We have gone through the evidence on record, particularly, the examination-in-chief of OP No.2, Dr. Bedabrata Pathak, who in his affidavit though admitted regarding admission of the complainant in the Devlok Hospital and conducting of laparoscopic operation on the gall bladder of the complainant but denied regarding all other allegations of the complainant. In his cross-examination, he has specifically stated that he visits Devlok Hospital twice in a month and stay for three days. He met first time with Sumi Das (Indu), the patient (the complainant) on 15.11.2013 on the date of operation. He had gone through all the investigation reports, consulted with Dr. Partha Pratim Saha and then decided for operation. In the prescription of Dr. Partha Pratim Saha, no USG was written after 7.4.2013. Dr. Partha Pratim Saha is a Gynecologist and he was also doing laparoscopy. He had consulted the USG report of the ILS Hospital dated 28.06.2013.
13. From the cross-examination of the OP No.2, it is admitted position that though the operation of the complainant was done at Devlok Hospital on 15.11.2013, but admittedly, neither Dr. Partha Pratim Saha nor Dr. Bedabrata Pathak, OP No.1 and 2 respectively, had suggested for any ultra-sonography of the complainant after 28.6.2013. For a laparoscopic surgery, it is the duty of the surgeon to go for ultrasonography of the patient just before operation, which had admittedly not been done in this case and as a result, there is every possibility of wrong diagnosis. It is also admitted position that Dr. Pathak, OP No.2, after consulting with Dr. Saha decided for operation of the complainant. Therefore, it cannot be said that OP No.1 was not in any way involved with the operation of the complainant at Devlok Hospital.  More so, OP No.3 Dr. Anupam Chakraborty of Devlok Hospital in his written statement specifically stated that laparoscopic surgery was done on the complainant and the operation was conducted by Dr. Pratha Pratim Saha and Dr. Bedabrata Pathak and he had no role in the operation which corroborated the contention of the complainant in her complaint petition as well as the evidence of Dr. Pathak. It is also admitted position that Dr. Pathak visited Devlok Hospital twice in a month from Guwahati and in his absence, no such specialist is available for post-operative care of the patient like the complainant.

We have gone through the impugned judgment passed by the learned District Forum from which it appears that the learned District Forum in its findings discussed in detail the evidence of the witnesses and also documents exhibited therein. Therefore, the relevant portion is reproduced hereunder:

“It is admitted and established fact that petitioner Sumi Indu Das was treated in the Devlok Hospital, Agartala for gall bladder stone operation. It is also admitted and established fact that she was admitted in the Devlok hospital and Dr. Bedabrata Pathak, the laparoscopic surgeon operated her along with Dr. Partha Pratim Saha. We have gone through the discharge summary issued by Devlok hospital. In the discharge summary nothing mentioned about the ultrasonography report. Dr. Bedabrata Pathak in his evidence stated that he met Sumi Das Indu on the date of operation on 15^th November 2013. He had gone through investigation report, consulted with Dr. Partha Pratim Saha and then decided for operation.  He also stated that Ultra Sonography was done after 07.04.13. From his evidence it is clear that relying on the ultrasonography report of 7.4.13 on consultation with Dr. Partha Pratim Saha, the gynecologist he decided for doing the laparoscopic operation without any talk with patient or her relative. He also stated that he had done the laparoscopic surgery of Sumi Das Indu.

            When the complication arose then Sumi Das Indu was admitted to the ILS hospital. Ultrasonography was done there and 288 ml fluid collection was found in the abdomen. Then open surgery was done and Dr. Nirmalya Bagchi, Surgeon stated in his evidence that they found bile inside the abdomen and injury in the bile duct. While doing the laparoscopic surgery such injury was caused. Then CBD reconstruction was done over T-tube for passing out of fluid. Condition of patient was very bad when she attended them. This laparoscopic surgeon stated in his evidence that ultrasound examination is to be done before 7 to 10 days of operation. Before gall bladder operation this precaution is to be taken for 100% satisfaction of CBD. He found bile leakage in the abdomen and also injury in common bile duct. Such injury might be caused in laparoscopic surgery if proper care is not taken. The complication could have been prevented in the early stage but it was not done. The evidence of Dr. Nirmalya Bagchi is very relevant in this case. As per his opinion ultrasound examination is to be done before 7 to 10 days of the laparoscopic surgery. But it is surprising that laparoscopic surgeon Bedabrata Pathak relied on the USG report on 28.06.13 and laparoscopic surgery was done on the basis of that. Dr. Partha Pratim Saha was consultant but he was a gynecologist not doing laparoscopy. Dr. Bedabrata Pathak stated that he consulted the USG report of ILS hospital dated 28.06.13. Operation was done on 15.11.13 after 5 months. Within this 5 months many developments can take place in the human body. But he did not take care of it. Operation was done in consultation with the gynecologist and he left Agartala after 2 days. He stated that he visited 2 times in a month and stay for 3 days only. We have gone through the USG report of Sumi Das Indu dated 07.04.13, 28.04.13, 29.11.13 and 25.11.13. In different times different pictures comes out through ultrasonography. It is true that Dr. Bedabrata Pathak is laparoscopic surgeon and definitely efficient in the art of surgery. But Dr. Partha Pratim Saha is not a laparoscopic surgeon and he has no degree or knowledge in doing laparoscopic surgery. It is surprising that Dr. Bedabrata Pathak relied on the 5 months old USG report of the patient Sumi Das Indu and decided for laparoscopic surgery even without any talk with patient or her relatives. Risk factor not disclosed to them. 

            From the evidence on record it is found that after 7 days of the operation the review of the operation is to be done but Dr. Bedabrata Pathak was not available. No arrangement was available at Devlok Hospital for remedy. Petitioner was not admitted to Devlok hospital to remove the complication. Bedabrata Pathak did not come back to Agartala to see his patient who was under serious condition due to laparoscopic gall bladder surgery. In such a situation petitioner had to go to ILS Hospital Agartala. There Dr. Nirmalya Bagchi did open surgery to save her life. Condition was very serious as there was bile secretion inside the abdomen. There was injury in the common bile duct caused by the laparoscopic surgery. In the opinion of Dr. Nirmalya Bagchi such injury could not be caused if proper care was taken. 

 Laparoscopic gall bladder operation is a minimally invasive surgery.  After removal of the gall bladder stone surgeon will use special X-ray to check that problem in the bile duct. This technique is called cholangiography. Any abnormalities in the bile duct may be removed. In this case Dr. Bedabrata Pathak in his evidence stated that he have no communication with the presence of stone in the gall bladder and related complication with the operation done. He was not entrusted to do CBD cholangiography to T-tube done under G.A. In this regard, endorsement not necessary at all. It is the duty of the surgeon who is supposed to conduct Special X-ray to check the problem in the bile duct. Any abnormalities in the bile duct is to be removed. Review was not done by him. But he left the patient in a helpless position and went outside Tripura. Another Dr. Partha Pratim Saha who attended her has no experience in the field of laparoscopic operation. The helpless patient then had to go ILS Hospital where open surgery was done to save her life.  Doctor entered in the hospital in a hurry and left in a hurry. It caused harm to the patient.  The surgeon only stay in the hospital for 2/3 days and post-operative treatment was not done.  For most patient recovery from anesthesia and surgery is eventful. Post-operative complication can be a life threatening and sudden. From the evidence on record, we noticed negligence, deficiency of service by the O.Ps in pre-operative stage and post-operative stage. There was negligence and deficiency of service by O.P. during operation. Negligence in treatment found during post-operative stage.”

          In view of the above, we are of the considered opinion that the learned District Forum did not commit any error while passing the impugned judgment. Thus, no interference is called for. In the result, the appeal is dismissed being devoid of merit.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura