STATE CONSUMER DISPUTES REDRESSAL COMMISSION

Bihar Patna

Appeal No. 222 of 2015

1. Dr. Rameshwar Kumar Singh, C/o- Dr. Srishti Somya Hospital, Art College Road, Gopalganj, District- Gopalganj
2. Dr. P.C. Sinha, C/o- Dr. Srishtri Somya Hospital, Art College Road, Gopalganj, District- Gopalganj                                                                      

                               ....  Appellants

Versus

1. Wipin Tiwari, Son of Baijnath Tiwari, Resident of Village- Kunwa, PS- Barhariya, District- Siwan
2. The General Manager, I.C.I.C.I Lombard General Insurance Company Ltd. Uma Compex, Fraser Road, Patna                                                                       

                                                                                                                                      ....  Respondents

Counsel for the appellant: Adv. Bipin Bihari

Counsel for the respondent no. 1: None

Counsel for the respondent no. 2: Adv. Durgesh Kumar Singh

Before:

Hon’ble Mr. Justice Sanjay Kumar, President

                                                     Mr. Raj Kumar Pandey, Member

                                                     Mr. Ram Prawesh Das, Member

Order

Date-03.05.2023

Per: Hon’ble Mr. Justice Sanjay Kumar, President

1. The present appeal has been filed by appellant/opposite party no. 1 & 2 for setting aside the order dated 20.07.2015 passed by District Consumer Forum, Gopalganj in Consumer Complaint Case no. 148 of 2012 whereby and whereunder the Ld. Forum has allowed the complaint case and has held appellants to be negligent in performing Hysterectomy operation of wife of complainant who subsequently died due complication arising out of said operation.
2. Briefly stated the facts of the case is that complaint’s wife had obtained Health Smart Card from district Head quarter under National Health Insurance scheme under which amount of Rs. 30,000/- could be spent on medical treatment in Hospital in collaboration with I.C.I.C.I Lombard General Insurance Company Ltd. (O.P. no. 3) Dr. Srishti Somya Hospital (O.P. no. 2) was one of such Hospitals where medical benefit under the scheme were available.
3. Wife of complainant approached O.P. no. 2 for medical check up and after check up doctor advised for removal of uterus by operation and complainant was told that expert doctor and all other facilities were available in the Hospital for such operation.
4. On 06.07.2012 the complainant’s wife was operated by O.P. no. 1 in said Hospital (O.P. no. 2) and during operation it is alleged that vein of patient was cut resulting in profuse bleeding and same continued and patient was kept in hospital but condition of patient did not improve and she was referred to P.M.C.H for better treatment.
5. Complainant admitted his wife in P.M.C.H, Patna on 21.07.2012 where she was kept in I.C.U and expert doctor treated her but his wife could not be saved and she died after 1 month and 5 days.
6. Complainant stated that due to negligent act of O.P. no. 1 and 2 the wife of complainant died which shows deficiency in service by O.P. no. 1 and O.P. no. 2. He had spent more than Rs. 2 lacs in treatment of his wife but she could not be saved due to complication arising out of operation performed by O.P. no. 1 in Hospital (O.P. no. 2)
7. Complainant filed a complaint case before the District Consumer Forum for payment of Rs. 2 lacs as compensation and Rs. 20,000/- as compensation for mental and physical harassment and cost of litigation.
8. On notice O.P. no. 1 and O.P. no. 2 appeared and filed written statement denying the allegations of any negligence and deficiency in service.
9. It was  stated that after proper examination of patient it was diagnosed that the patient was suffering from uterine problem and after obtaining consent from the complainant, the patient was operated on 6^th July, 2012 for vaginal hysterectomy. Post operative patient was in good health condition and was discharged on 11.07.2012.
10. Patient thereafter came  on 15.07.2012 with different symptoms of abdominal pain and vomiting. She had intestinal obstruction not related to hysterectomy. She was referred to PMCH for intestinal obstruction for further treatment.
11. The District Consumer Forum after hearing both the parties and considering and appreciating the evidences and materials available on record has held that even appellants/opposite parties have admitted that patient was not suffering from any another complication before operation of hysterectomy and complication of obstruction in intestine developed post operation for which she was referred to PMCH where she died during treatment.
12.  It was further held by the District Forum that it is an admitted fact that prior to operation of hysterectomy on 06.07.2012 and thereafter patient was in good health condition and she was discharged from hospital on 11.07.2012 and she again reported in the hospital on 15.07.2012 with complaint of abdominal pain and vomiting and she was suffering from intestinal obstruction for which she was referred to PMCH by opposite party no. 1 & 2. Many pathological tests such as ultrasound, blood test and other tests were done of the patient prior to operation and no any other ailment was found in those tests. She was healthy as such except the complications in uterus there was no any other complication and obstruction in intestine developed after operation of hysterectomy on 06.04.2012 which indicates that the operation was not carried out properly and due to faulty surgery the condition of patient detoriated and she was admitted in PMCH as such deficiency in service and negligent act by opposite party no. 1 and 2 stands established and the Consumer Forum allowed the complaint case filed by complainant by order dated 20.07.2015, aggrieved by which appeal has been preferred by opposite party no. 1 & 2.
13.  It is submitted on behalf of counsel for the appellant that subsequent complications of intestinal obstruction is not related to hysterectomy. Allegation of cutting of the vein during hysterectomy operation is false and baseless. The operation of hysterectomy was performed by opposite party no. 1 with due care and caution and post operative patient had no complication and she was discharged in a healthy condition.
14.  Heard the leaned counsel for the parties and perused the material available on record and the judgment and order passed by the District Consumer Forum, Gopalganj. The judgment and order passed by District Forum is not sustainable for following reasons.

1. Onus to prove medical negligence lies on the claimant and such onus can be discharged by leading cogent evidence. It is obligation of the complainant to provide the facta probanda as well as facta probantia. Mere averment in a complaint petition can not be said to be evidence on basis of which case of complainant can be held to be proved. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered.
2. Alleged negligence of suffering from ailment as a result of improper performance of surgery has to be established by the complainant by producing medical evidence to show that there is nexus between operation performed and development of subsequent complications which arose after discharge of the patient in a satisfactory condition.
3. There is no evidence on record to show that opposite party no. 1 & 2 had not exercised due care and caution in treating the patient and treatment given by them was not proper and acceptable in medical profession. There is no allegation of any negligence in pre or post operative medical care or in follow up care at any point of time by treating doctors. Allegation that during operation of 06.07.2012 vein was cut is baseless and operation was successful as such she was discharged on 11.07.2012 in good and stable health condition.  
4. The operation hysterectomy dated 06.07.2012 was uneventful and the patient was discharged on 11.07.2012 in healthy and stable condition whereas when patient came on 15.07.2012 appellant found it to be case of intestinal  obstruction and accordingly, she was referred to PMCH for further treatment which is at per medical protocol.
5. No medical literature or expert medical opinion has been produced by the complainant to show that the subsequent complication of intestinal obstruction has any relation to the operation of hysterectomy.
6. The finding recorded by the District Consumer Forum, Gopalaganj that at pre operative stage patient was fully examined and no any other complication was found and all complications developed post operation as such the post operative complication is due to improper operation of hysterectomy is based on assumption and presumption and not on any medico legal evidence as such is not sustainable.
7. Negligence can not be attributed to a doctor so long he performs his duties with reasonable skill and competence and even failure of a surgery can not be presumed to be medical negligence unless there is some strong evidence to suggest that doctor was negligent.

15.   For the reasons as stated above, the judgment and order dated 20.07.2015 passed by District Consumer Forum, Gopalganj in Consumer Complaint Case no. 148 of 2012 is neither sustainable in law nor on facts and is accordingly, set aside.
16.  Appeal is allowed and Complaint case no. 148 of 2012 filed before District Consumer Disputes Redressal Forum, Gopalganj is dismissed.

          Ram Prawesh Das               Raj Kumar Pandey                                                             Sanjay Kumar. J

                (Member)                            (Member)                                                                        (President)

Md. Fariduzzama