Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant describing that since 6.12.2012 the complainant had suffering from stomach pain and after got an x-ray the complainant was detected with gall bladder stone by ultrasonography and was admitted to Bandel ESI Hospital and Dr. R.N. Ghosh operated him on 4.2.2013 and thereafter on biopsy gallbladder-chronic cholescystis was detected and thereafter the complainant was again suffering from jaundice and on 6.3.2013 the complainant got his tests done in Fortis Hospital and the ERCP report dt. 7.3.2012 clearly detected that at the level of cystic duct, there is total and abrupt cut off of the common bile dust – common hepatic duct at the porta which could be of secondary to a post operate suture placement and having found such reports the complainant went to ESI Hospital, Manicktola for treatment on 14.3.2013 but there the medical office refused to take up the matter and suggested that it is better to be dealt by someone who specializes in that region and after that suggestion the complainant consulted with Dr. Sukanta Ray of Nightingale Hospital on 18.3.2013 and as per his advice on 22.3.2013 the complainant again got his blood tests done and the blood report was alarming. So, the complainant got admitted under Dr. Sukanta Ray in Nightingale Hospital on 3.4.2013 and then on 4.4.2013 the complainant underwent another operation – Roux en y hepaticojejunostomy for recovery of the common bile duct and he got discharge on 11.4.2013 and the cause of action for this complaint first arose on 4.2.2012 when the complainant was admitted in ESI Hospital, Bandel and operated by the opposite party no. 2 and is still continuing till date.
Complainant filed the complaint petition praying direction upon the opposite party nos. 1 and 2 to pay sum of Rs. 1,45,385/- towards his treatment and operation and to pay sum of Rs. 8,00,000/- for physical disability, mental agony and shock and harassment and pecuniary loss suffered by the complainant and to pay sum of Rs. 50,000/- towards cost of proceeding and to pay sum of Rs. 9,95,385/- in total including all costs and to give any other relief or reliefs as deem fit and proper.
Defense Case:- The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him. This opposite party submits that op no. 2 operated the patient on 04/02/2013 for Gall Bladder stone and Cholecystetomy was done with extreme difficult because of long duration( 18/19 years)and the pathological Gall Bladder was densely adhered at porta and stone embedded in liver as per BHT (Operation note) and it is stated that state govt. submits that there is no relevant documents available like prescription, Bills, vouchers etc against the said alleged expenditure claimed by the patient and as such denied. It is also stated that fluid was coming from T-tube for proper drainage and finally wound dried and patient was discharged accordingly on 21/12/2013 and advised to come for follow up on regular basis. The patient was admitted on 04/03/2013 with “Post-cholecystectomy jaundice” as per BHT and treated conservatively and necessary investigation done to rule cause of Jaundice from tie-up hospital (Fortis Hospital, Kolkata) through ESI tie-up system for betterment of patients.
It is also stated that on 13/03/2013 patient was referred to ESI Hospital, Maniktala for admission and further better management. It is also stated on 15/03/2013 surgeon advised to the patient to attend Higher Centre for better management but no reports and relevant papers of higher centre available from the patient party as patient was discharged from ESI Hospital Bandel on 15/03/2013.
It is also denied that OP no. 1 and 2 acted in careless and highly negligent manner and strongly denied that due to negligence compliant suffered severe damage and the so-called cost is nothing but imaginary, arbitrary, unilateral, baseless, without document, cogent evidence, as such state emphatically denies the entire statement. It is also stated that on 06/02/2013 patient complained of reduced urinary output and abdominal discomfort was also noted that there was more than normal bile leakage and on 07/02/2013 patient’s condition improved and on 21/12/2013 patient was discharged and on 07/02/2013 patient was admitted in surgery unit and on 06/03/2013 patient was sent to ERCP to Fortis Hospital and on 15/03/2013 patient was discharged and referred to higher centre for better management.
The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him. This opposite party submits that the complainant, Sri Soumitra Chatterjee aged 42 years an employee of Ganges Manufacturing Unit was admitted at the OP No. 1, ESI Hospital at Bandel on 06/12/2012 under the answering OP No. 2 with similar problem which is evident from the documents, submitted by the complainant to the Learned Forum since only the Open Heart Surgery is done in this hospital and an extra part of this OP so that his operation could be done at the earliest opportunity on top priority basis considering the fact that he was a young male harboring a Tombstone for long period increasing thereby the chances of Cancer formation. The patient was, therefore, advised to get the Pre-Operative investigations done as early as possible. And the Patient attended the SOPD on 31/03/2013 and his investigation report was found to be in order and immediately referred to the Anethetist for pre-anesthetic check up on that very day and he was promptly attended to by the Anesthetist and referred back to the answering op to proceed for the Surgery.
On admission the patient was attended promptly and a Note was recorded regarding presence of GB Stone for 18-19 years as was reported by the Patient himself. It was detected at Fortis Hospital that the CBD was blocked then a surgery of the patient was emergent to create a Bypass for the bile to come out. He was then there sent to the ESI Hospital at Maniktala with all the connected documents on 12/03/2013 as part of protocol, liable to be maintained by the OP no. 1 ESI, Hospital for the better management of the patient. But the said ESI Hospital for the better management of the patient but the said ESI Hospital, Maniktala unfortunately refused to admit him. And that there after other hospitals, including SSKM Hospitals, were contacted for rendering his surgery but the patient himself refused to avail of any further treatment or advice suggested by the Ops Instead, he requested to be discharged on 15/03/2013.
The patient was admitted immediately after the very next day on completion of the OPD formalities.
The patient was put up for the operation on the very next available date on 04/02/2013 after he was admitted on 01/02/2013.
As the operation was very much difficult in its type and since the hemorrhage was profuse due to adhesions and tissue friability it was felt thus that controlling of the hemorrhage was more important at that moment so that the patient could be able to recover as well as remain alive in the post operative period to fact the second surgery required to be done later the answering opposite party had to brought his own Diathermy Hand Switch to facilitate the operation.
The answering opposite party no. 2 personally contacted with the Doctors attached to the ESI Hospital at Manicktala, ESIH/S and SSKM Hospital Surgery Department to arrange for the Second Surgery and for that purpose of ready reference and convenience of the Learned Forum, the answering OP begs to submit a List containing therein the detailed events connected with the complaint in course of undergoing his required medical treatments and the operations.
The name of the opposite party no. 3 was expunged from this proceeding.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether there is any medical negligence on the part of opposite party?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
All the points of consideration adopted in this case are interlinked and/ or interconnected with one another and for that reason and also for the interest of convenience of discussion all the issues are clubbed together and taken up for consideration jointly.
In this regard the first question which is required to be discussed is whether complainant is a consumer or not? In the answer this District Commission after going through the pleadings of the parties as well as documents such as money receipts filed by the complainant are clearly depicting that complainant is a consumer. In this regard it is also important to note that there is no dispute over the issue that opposite party no. 2 who is a doctor opposite party no. 1, hospital had medically treated and also operated the complainant at ESI hospital. Moreover the complainant is an employee of Ganges Manufacturing company ltd. and also ESI card holder. All these aspects are also highlighting that complainant is a consumer under the opposite parties.
Next question which is required to be discussed is whether complainant has right and has cause of action for filing this case against the opposite parties or not? In this connection it is important to note that the complainant has instituted this case against three opposite parties namely, ESI hospital, Bandel, Dr. R.N. Ghosh who was attached to the opposite party no. 1, hospital and Dr. Sukanta Roy of Nightingale Hospital, Kolkata. From the evidence on record it is found that complainant was medically treated and operated at opposite party no. 1, hospital and said medical treatment and operation was done/ conducted by opposite party no. 2 and at that point of time opposite party no. 2 was an employee under opposite party no. 1. It is also revealed that inspite of providing treatment and conducting operation by opposite party no. 2 the complainant failed to get rid of the problem and for that reason he had to undergo second surgery under opposite party no. 3. All these factors are clearly depicting that the complainant has also cause of action for filing this case. But fact remains that the name of the opposite party no. 3 has been expunged from this case in the year 2014 and so this case is not further maintainable against opposite party no. 3.
Another point which is an important issue is limitation and so this matter is required to be discussed. Over this issue from the pleadings of the parties as well as from the evidence on record it appears that complainant was medically treated at opposite party no. 1, hospital and was under medical treatment under the opposite party no. 2 and the opposite party no. 2 had conducted the operation of gallbladder stone on 4.2.2013 and thereafter the complainant also had undergone medical treatment at Fortis Hospital and also under Dr. Sukanta Roy of Nightingale Hospital on 3.4.2013 and he was discharged from Nightingale Hospital on 11.4.2013. Thus, it is crystal clear that all the incidents relating to medical treatment of the complainant was occurred in the year 2013 and this instant case has also been filed in the year 2013. This matter is clearly depicting that this case has been filed well within 2 years from the date of arising of the cause of action and so this case is not barred by limitation.
Another important issue which is also required to be discussed is “jurisdiction”. In this connection this District Commission after going through the materials of this case record finds that the complainant is a resident of Bansberia, P.S. Mogra, Dist. Hooghly and the incident of medical treatment and operation was occurred at ESI Hospital, Bandel which is well within the territorial jurisdiction of this District Forum/ Commission. In connection with the pecuniary jurisdiction this District Commission after going through the materials of the case record finds that the claim of the complainant is below 20 lakh rupees and this matter is also indicating that this District Forum/ Commission has also pecuniary jurisdiction.
Thus, the points of consideration nos. 1, 2 and 3 which have been adopted in case are decided in favour of the complainant side.
Point of consideration no. 4 is related with the question as to whether there is deficiency in service on the part of the opposite parties or not? Points of consideration no. 5 is connected with the question whether there is any medical negligence on the part of the opposite parties or not? The points of consideration no. 6 is related with the issue whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Relating to these points the complainant side in their evidence, pleadings as well as at the time of argument highlighted that the opposite party no. 2 performed the cholecystectomy on 4.2.2013 and it would appear that in between the date of operation and the date of discharge (21.2.2013) bile drainage persisted for 2 weeks which indicates the blockage of common bile duct and it was causing injury to the CBD. As per evidence and argument of complainant side MRCP report of the complainant dt. 9.3.2013 is also supporting the fact of causing injury or abrupt cut off the right common hepatic duct which is the resultant effect of non performance of proper skill in surgery by opposite party no. 2. It is argued that opposite party no. 2 in his W/V has stated that the patient was discharged on 21.2.2013 in a stable condition without any complaint or bile leakage but it is very astonishing that complainant had to take readmission on 4.3.2013 at the opposite party no. 1, hospital with cholecystectomy jaundice. In this matter it is also argued by the ld. Advocate of the complainant side that if the complainant was discharged in stable condition then there was no necessity of taking further admission by the complainant in the opposite party no. 1, hospital and so the statements of the opposite party nos. 1 and 2 that the complainant was discharged in a stable condition is a myth and total untrue statement.
Relating to this allegation of medical negligence which has been pointed out by the complainant side, there is necessity of giving definition of ‘gallbladder’, ‘bile duct injury’ and what causes bile duct injuries during gallbladder surgery. In this respect the definition of gallbladder is that the gallbladder is a small, sac-like organ that sits under the liver on the right side of your abdomen (belly). The gallbladder stores a greenish-brown fluid called bile. Bile is made and released by the liver and then sent to the small intestine. There, it helps the body break down and absorb food. Bile moves through a network of tube-like structures called bile ducts. The term ‘bile duct injury’ indicates that bile duct injuries are damage to the bile ducts that happen during gallbladder surgery. A bile duct can get cut, burned, or pinched. As a result of an injury, the bile duct will not be able to work right, leaking bile into the abdomen or blocking the normal flow of bile. Bile duct injuries lead to symptoms that can be painful, even deadly, if not treated. Regarding the reason of causing bile duct injuries during gallbladder surgery it is important to note that most bile duct injuries that occur during gallbladder surgery happen because the area around the gallbladder and bile ducts is masked in some way so that the doctor cannot see it clearly. This can happen if the area’s structure (anatomy) is different than normal, or if there is a lot of bleeding, swelling, or scarring in the area. After close observation of the above noted medical aspects it appears that in maximum case bile duct injuries generally occurred during gallbladder surgery because the area around the gallbladder and bile duct is marked in some way so that the doctor cannot see it clearly and such injury can happen if the area’s structure is different than normal or if there is a lot of reading, swelling or carrying or scarring in the area. It is also important to note that the bile duct injuries during gallbladder surgery occur in one in thousand cases of laparoscopic gallbladder surgery and they occur less often in open surgeries. All these factors are clearly indicating that in maximum cases in the matter of occurrence of bile duct injuries the conducting doctors are not responsible. In the case of Smt. Tilat Chaudhary and another vs. All India Institute of Medical Sciences and another, Hon’ble National Commission has been pleased to observe that ‘laparoscopic cholecystectomy for removal of stones in gallbladder, injury to Bile Duct during operation, CBD injury was caused and detected during laparoscopic dissection procedure and said procedure was converted into open cholecystectomy to rectify complications. CBD injury is a well known complication in laparoscopic cholecystectomy procedure and frequency of such complications has been increased with advent of with laparoscopic cholecystectomy. Incidence of CBD injury is a well known risk when patient undergoes a laparoscopic cholecystectomy procedure. Same cannot be correlated as act of negligence or carelessness on the part of operating surgeon. Merely because laparoscopic cholecystectomy had to be converted to open cholecystectomy procedure, it cannot be said that laparoscopic cholecystectomy procedure adopted by surgeon was counter indicative. Once it is shown that due medical protocol was followed, no case of medical negligence is made out against opposite parties. Thus, it is crystal clear that the opposite party no. 2, Dr. R.N. Ghosh has/ had no negligence on his part in the matter of conducting gallbladder stone operation. On this background this District Commission after going through the evidence and documents on record observed that the opposite party nos. 1 and 2 have taken prompt action in the medical treatment of the complainant and the medical treatment and gallbladder stone operation has been conducted by opposite party no. 2 with due care and diligency. It further transpires from the evidence that the complainant was discharged from the opposite party no. 1, hospital after gall stone surgery on 21.2.2013 in a stable condition without any complaint of bile leakage. This matter is also indicating that the opposite party nos. 1 and 2 has no fault or negligence on their part. It is also important to note that this District Forum/ Commission in response to a prayer on the part of the complainant, an expert opinion was sought for from Dr. Sukanta Roy MS(Cal), Mch (G I Surgery, AIMS, New Delhi), a Consultant Gastrointestinal Surgeon, at present attached to Nightingale Hospital, Kolkata under whom the complainant was admitted at Nightingale Hospital and undergone operation and said Dr. Sukanta Roy has submitted his valuable opinion on 25.5.2016 wherefrom it appears that ‘’ So, the attending surgeon had made adequate and judicious efforts for full recovery of the patient because he had documented the bile duct injury and referred the patient to higher centre for best possible outcome’’. This report of the expert is clearly depicting that there is no negligence or deficiency on the part of the opposite party nos. 1 and 2. In this regard it is important to note that as the report of the expert does not support the case of the complainant, he has filed an objection against the said report but this District Forum has neither thrown away nor rejected said expert report. Moreover after submission of the expert report by opposite party no. 3 the complainant has also not prayed before this District Forum/ Commission for further expert opinion. In view of this position this District Forum/ Commissions has no other way but to treat the said medical expert report submitted by opposite party no. 3 as trustworthy document which depicts that there was no negligence or deficiency in the treatment of complainant at opposite party no. 1, hospital and on the part of the opposite party no. 2.
It is also very important to note that as the name of Dr. Sukanta Roy, opposite party no. 3 has been expunged by this District Forum on 10.1.2014, this District Commission has no other way but to dismiss this case against the opposite party no. 3.
A cumulative consideration of the above noted discussion goes to show that the complainant has failed to establish his case about medical negligence and/ or deficiency of service against the opposite parties. So, this District Commission has no other way but to decide the points of consideration nos. 4, 5 and 6 against the complainant and to dismiss this complaint case.
In the result it is accordingly
ordered
that the complaint case being no. 157 of 2013 be and the same is dismissed on contest.
No order is passed as to costs.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
