DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM

WEST TRIPURA : AGARTALA

 

CASE NO:  CC-   75  of   2016

 

Sri Ashit Saha

S/O- Late Matilal Saha,

South Indranagar,

P.O. Indranagar,

West Tripura. …..….…...Complainant.

 

         VERSUS

 

     1. The Director of Health Services,

Govt. of Tripura, Agartala,

Pt. Nehru Complex, Kunjaban, Agartala.

 

  1.A. Chief Executive Officer,

Tripura Medical College & Dr. BRAM 

Teaching Hospital, P.S. Amtali, 

West Tripura.

 

     2. The Medical Superintendent,

Tripura Medical College & Dr. BRAM 

Teaching Hospital, Hapania, 

West Tripura.

 

     3. Dr. S. Chatterjee,

H.O.D., Surgery,

Tripura Medical College & Dr. BRAM

Teaching Hospital, Hapania,

West Tripura.

 

     4. Dr. Ajoy Saha, Specialist,

Deptt. Of General Surgery,

Tripura Medical College & Dr. BRAM 

Teaching Hospital,

Hapania, West Tripura. ..........Opposite parties.

 

 

 

 __________PRESENT__________

 SRI A. PAL,

PRESIDENT,

  DISTRICT CONSUMER 

 DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SMT. Dr. G. DEBNATH

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

 

 

C  O  U  N  S  E  L

 

For the Complainant : Smt. Kalyani Roy,

 Smt. Sarama Deb,

 Sri Haripada Das,

 Advocates.  

 

For the O.P. No.1 : Sri Kushal Deb,

 Sri Subhankar Deb,

 Advocates.

 

For the O.P. No.1.A, 2 & 3 : Sri Paramartha Datta,

 Advocate.

 

For the O.P. No.4 : Sri Sudipta Sekhar Debnath,

 Sri Monoj Debnath,

 Advocates.

 

 

 

JUDGMENT  DELIVERED  ON:  04.09.2017.

 

 

J U D G M E N T

This case arises on the petition filed by one Ashit Saha U/S 12 of the Consumer Protection Act. Petitioner's case in short is that he was suffering from abdominal pain and went to Tripura Medical College and Hospital at Hapania. On 08.7.2015 he was admitted. Dr. Ajoy Saha, consultant suggested for Sonography. It was done on 09.07.15. Chronic Calculus Cholecystitis with sludge was detected. On 10.07.15 operation was done. But petitioner suffered allergic irritation, sleeplessness. Another ultrasonography was suggested and Retained Calculi in Gall Bladder Fosa was detected. Complainant was discharged on 23.07.15. On 04.08.15 complainant  underwent MRCP in ILS Hospital, Agartala. Cystic duct leak was detected. CBD appears normal, possibility of bile duct injury comes out from MRCP report. He then visited the chamber of Dr. Ajoy Saha. But did not get any redress. He then went to Apollo Hospital, Chennai. There MRI MRCP was done. Non dilated cystic duct gall bladder remnant was found. Suspicion of separation of the right hepatic duct from the left was detected. On 22.08.2015 operation was again done in Chennai Hospital. Complainant was discharged after treatment in the Apollo Hospital. Due to medical negligence in the Tripura Medical College & BRAM  Teaching Hospital, Hapania and Dr. Ajoy Saha petitioner suffered huge loss. So he claimed Rs.20 lacs as compensation.

2. O.P. No.1 Director, Health Services appeared and filed Written objection stating that he is not the necessary party in this case at all. 

3. O.P. No.2, Superintendent, Tripura Medical College & Hospital appeared and filed Written statement. It is stated that complainant was treated by a unit of doctors not by an individual. Dr. Ajoy Saha and Dr. Ajoy Kr. Battacharjee(MS) did the operation. Intra-abdominal condition of patient was found sub optimal. Gall bladder was full of pus. Complication was explained to the patient parties by the surgeon. No medical negligence was done in the Tripura Medical College and BRAM Teaching Hospital authority.

4. O.P. No.4, Dr. Ajoy Saha and also O.P. No.1.A, Chief Executive Officer of the Society of Tripura Medical College & BRAM Hospital also filed Written statement denying the claim. 

 

5. On the basis of contention raised by the both the parties following points cropped up for determination.

(I) Whether the petitioner suffered because of medical negligence of  Dr. Ajoy Saha and his team in the Tripura Medical College & Dr. BRAM Teaching Hospital?

(II) Whether petitioner is entitled to get the claim amounting to Rs.20 lacs?

 

6. Petitioner side produced photocopy of Discharge Certificate issued by TMC Hospital, TMC & BRAM Teaching Hospital, Hapania, Prescription of Dr. Ajoy Saha, Report of Histopathology, Registration as old patient in TMC and Radiology report, Referral Certificate, Report of MRI, MRCP by Apollo Hospital, Discharge Summary of Apollo Hospital, Chennai, Demand Notice. 

7. Petitioner also produced the statement on affidavit of one witness, Ashit Saha.

8. O.P. on the other hand produced bedhead ticket on the date of admission and discharge summary.

9. O.P. also produced the statement on affidavit of Dr. Ajoy Saha and another witness expert appeared Dr. Dhruba Banik.

10. On the basis of all these evidence on record we shall now determine the above points.

 

Findings and decision;

11. In this case witness Dhruba Banik, Medical Expert working as surgeon in the IGM Hospital stated that he has experience on gall bladder stone operation and doing the same regularly. He  opined that there is no medical negligence in this case by the doctors of TMC. Petitioner was suffering from  jaundice before operation, might of obstructive Jaundice so he was referred to CMC Vellore not to Apollo Hospital. As per medical report of Apollo hospital right hepatic duct was separated from left. In his view the situation was not due to previous operation. Intra hapatic bilary dilation was caused by block. There was no negligence by the doctors TMC Hospital.

12. Ajoy Saha is also a Surgeon. He produced the statement on affidavit. He stated that he had no negligence at all by doing the operation. Various pathological tests were done. Admittedly MRCP was not available in the TMC hospital. It is available in the ILS hospital, Agartala. 

13. Petitioner side could not produced any expert or any medical officer to support the medical negligence by the TMC hospital as alleged by him. He stated that he developed some uneasiness, allergic irritation, sleeplessness after operation in the TMC hospital. After operation MRCP was done on 04.08.15 and cystic duct was found affected. Doctors of the ILS hospital was not called by the petitioner to prove medical negligence. 

14. We have gone through the MRCP report of the Apollo hospital. Gall bladder remnant with a non dilated cystic duct was found on 17 August, 2015. MRCP was also done in the ILS hospital on 04.08.15. It was done by Dr. Nanigopal Tripura. Possibility of bile duct injury stricture formation causing retrograde CHD was found. Oval shape cystic area was found in the gall bladder area. Changes was seen in the Apollo hospital. The team of doctors in the TMC hospital and Surgeon Ajoy Saha suggested the patient for MRCP after operation. This suggestion could be given before operation. He clearly stated MRCP facility is not available in the TMC hospital.

15. Learned advocate for the O.P. referred the decision of the Supreme Court 2010 Legal Eagle (SC) 115. In that case our Supreme Court viewed that in the realm of diagnosis and treatment there is scope for genuine difference of opinion between the preferred professional doctor. The medical practitioner is liable where his conduct fell below his standard of a reasonably competent medical practitioner. In this case both Ajoy Saha and Ajoy Bhattacharjee Surgeon had sufficient experience for doing gall bladder operation. Our Supreme Court held that medical practitioner often call off to adopt procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient. So in this case failure to advice MRCP test before operation can not be treated as negligence by the doctors. Simple lack of care or error of judgment is not medical negligence as viewed by our Supreme Court in 2010 Vol. II 480 SCC 2003.

16. Learned advocate for the O.P. referred the decision of the Supreme Court in 2014 Legal Eagle (SC) 523. In that case our Supreme Court held that doctor is found qualified and good academic credential and  his conduct was not below normal standard. So medical negligence not proved. There is material before us to support that Dr. Ajoy Saha have not undertaken adventurous step or used any brutal force for causing any injury in the bile duct. There is no evidence that he had received any consideration, fees.

17. Learned advocate for O.P. also referred the decision of the Supreme Court in Legal Eagle SC 855. In that case our Supreme Court held that ''The simple lack of care and error of judgment or an accident is not a proof of negligence on the part of 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 also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time(that is, the time of the incident) at which it is suggested it should have been used.

A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.''

18. In the light of observation of our Supreme Court it is clearly established that medical negligence of the team of doctor of TMC hospital not established by sufficient evidence in the case. Petitioner therefore, is not entitled to get any compensation as claimed. Both the points are decided accordingly. In view of our above findings over the two points it is found that the O.P. No.1 to O.P. No.4, team of doctors of Tripura Medical College & BRAM Teaching Hospital, Hapania had no negligence while operating the petitioner. Medical negligence is not proved by convincing evidence. As such petitioner failed to prove the case and therefore not entitled to get any compensation.  Petition is dismissed.

 

 

 

Announced.

 

 

 

 

 

 

 

SRI A. PAL

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA.

 

 

 

 

 

SMT. DR. G. DEBNATH,

MEMBER,

 DISTRICT CONSUMER DISPUTES 

REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.