Bhupendra Nath Das vs. Maharaj Ramkrishna Mission Seva Pratisthan and another 1999 CCJ 923

West Bengal State Consumer Disputes Redressal Commission, Calcutta

This is a complaint of medical negligence filed by one Bhupendra Nath Das under Section 17 of the Consumer Protection Act, 1986. The petitioner's case is that he is an engineer and was posted on a high rank in the Government Department as well as in the Calcutta Municipal Corporation at Calcutta, feeling some trouble in his right eye the petitioner had contacted Ramkrishna Seva Pratisthan, 99, Sarat Bose Road, Calcutta - 700026 and on the doctor's advice he was admitted there on 2-8-1993 for cataract operation under the treatment of Dr. M. M. Patra. Dr. Patra performed an operation on the right eye of the petitioner on 3-8-1993 and he was discharged from the Seva Pratisthan on 8-8-1993. It has been alleged that pursuant to the advise of Dr. Patra the petitioner attended the eye O.P.D. of the Ramkrishna Seva Pratisthan regularly but the operated eye was not cured. The petitioner was thereafter advised the second operation by Dr. Patra with the assurance that the ailment of his right eye will be completely cured after the second operation. So, the petitioner was admitted again in the Seva Pratisthan on 17-8-1993 and the second operation was conducted on his eye. The petitioner has complained that the black portion of his right eyeball became completely white immediately after the second operation and he felt acute pain in his operated eye. Getting no relief even by the second operation the petitioner reported the fact to Dr. Ranabir Mukherjee of Eye Care and Research Centre, Biplabi Niketan at 12-A, Dr. Bimal Guha Street, Calcutta - 17, who after examining the right eye of the petitioner opined that due to infection the right eyeball of the petitioner was affected and there was septic in the right eye pupil. The petitioner was thereafter advised by Dr. Ranabir Mukherjee to remove his eyeball to avoid further complications to the left eye. Being so advised by Dr. Mukherjee the petitioner was admitted to his clinic and his right eyeball was removed by Dr. Ranabir Mukherjee. The petitioner's allegation is that two successive operations performed by Dr. Patra were done in a negligent way and there was prescription of wrong medicines and there was septic in his eye on account of unhygienic instruments used during the operation. The petitioner alleged to have suffered mentally and physically for the negligent eye treatment made by the Seva Pratishtan and Dr. Patra. He, therefore, has claimed a compensation of Rs. 5,20,000 (Five lakh twenty thousand only) as per details given in the petition on complaint.

The care is contested by both the Ramkrishna Seva Pratishtan and Dr. M. M. Patra. The Seva Pratisthan is represented by the Secretary of the Pratisthan as opposite party No.1 and Dr. Patra is opposite party No.2. Both the opposite parties have filed their written objection denying the allegations of the petitioner. According to them, the petitioner was attended in the O.P.D. of the Pratisthan on 2-7-1993 for the ailment of his right eye by Dr. M.M. Patra and as the petitioner on 2-7-1993 for the ailment of his right eye cataract on his right eye the requisite investigations were done as per the advice of Dr. M. M. Patra and ultimately he was advised admission in the Pratisthan on 12-7-1993. The petitioner got himself admitted in the Pratisthan on 12-7-1993. The petitioner got himself admitted in the Pratisthan on 2-8-1993 and on 3-8-1993 his right eye was operated by Dr. Patra successfully. The petitioner was discharged on 8-8-1993 without any problem from the hospital and with proper postoperative advise. The opposite parties deny the allegation of negligent operation in the eye of the petitioner and assert that the petitioner was completely well even afer the operation on 3-8-1993 and had no complications till 8-8-1993. It has been alleged by opposite parties that fungal infection was found in his eye which developed during his stay at home and that this was detected on 16-8-1993 when the opposite parties, the fungal infection occurred during the dressing and handling of the ye of the petitioner at his home. It is apprehended that the dressing materials were not properly sterilized and the person doing the dressing of the petitioner at home did not clean his hands properly at the time of the dressing. However, the patient was advised a second operation as no medicine could restrict the infection, but unfortunately the chances of recovery from fungal infection were very less and this was conveyed to the petitioner at the time of discharge after the second operation. The opposite parties strongly deny any negligence in the matter of treatment or operation of the petitioner and they have asserted that during his stay in the hospital the petitioner did not make any allegation of pain in his operated eye.

The point for determination is if there was any deficiency in medical service rendered to the petitioner by the opposite parties causing damage to his right eye and if so, if he is entitled to the damages claimed by him.

Here the decision of the doctor to operated the affected eye has not been challenged. Accordingly to the doctor, the operation was successful but the patient got an infection outside the hospital. He tried to cure the defect by a subsequent operation, but the defect could not be removed. Can it be said that his negligence has been proved ?

The complainant has subsequently raised a point that there was a wrong treatment by prescribing medicine for tuberculosis. It may be noted that this allegation was not made in the original petition of complaint. Further the point has not been tested by an expert. Production of copies from medical books is not enough to prove an allegation of negligence in such a care.

The Commission held that judging from all possible aspects of the case we come to the conclusion that the medical negligence brought against the doctor has not been proved in this case. A question may be raised why the patient was released for the second time when his disease was not cured. The doctor has explained his position by stating that according to him the infection in question could not be cured by detaining him in the hospital. Therefore, the allegation of deficiency in medical service fails. As against opposite party No. 1 also no specific negligence has been proved. It has not been proved that the infection was caused due to any negligence on the part of any nursing staff or other employee of the hospital. So opposite party No. 1 is also found not liable for any deficiency in service. The case is, therefore, dismissed on a contest against both the opposite parties but without any costs.

RECENT COPRA JUDGEMENTS

Paramjig Kaur and others vs. Doaba Hospital and another 1999 CCJ 1182

Punjab State Consumer Disputes Redressal Commission, Chandigarh

Jaswinder Singh, aged about 33 years, is alleged to have died on account of negligent act of the opposite parties in the matter of making proper diagnosis and giving proper treatment. Parramjit Kaur, his widow, and Harbeen Kaur and Ranjot Singh, his children, claimed compensation to the tune of Rs. 10,000.00 from the opposite parties, Doaba Hospital Maternity and Surgical Wing and Dr. Ashutosh Gupta of the Hospital. Jaswinder Singh was working as a Cameraman in the Doordarshan Kendra, Jalandhar, earning Rs. 8,000 per month. Apart from the above, he was looking after his aged parents. He was suffering from fever and in order to get treatment, approached the opposite parties on 28-9-1996 at about 9 a.m. On the same day at about 8 p.m., he was discharged. At the time of discharge, it was mentioned in the discharge slip that it was a case of cerebral haemorrhage (cerebral malaria). Annexure C-1 is the copy of the discharge slip. On way to Daya Nand Medical and the doctors did not have expertise for handling the cases like the one with which Jaswinder Singh was involved. The treatment given was to up to the standard required. On notice of the complaint, the opposite parties submitted their version denying the allegations of the complainant regarding negligent act. It was claimed that the doctor, opposite party No.2, was competent to handle the case and that services of their experts on the subject were also availed and the treatment provided was proper. On the other hand, the opposite parties produced affidavit of Dr. Ashutosh Gupta as well as affidavits of Dr. H. S. Dhingra, Dr. Rakesh Chowdhary and Dr. Vijay Mahajan. At this stage, it may be stated that Dr. Vijay Mahajan was called by the complainants before removing the patient from the hospital of the opposite parties.

Three types of cases relating to the medical negligence can be brought before the Fora established under the Consumer Protection Act. Dirst type of cases are prima facie cases of medical negligence, which have been stated to be (Example: if left leg was to be operated in fact operation on the right leg was done). In such like cases, no expert evidence is required that the Forums can conveniently adjudicate the dispute of medical negligence. The second category of cases are where expert evidence is required to prove medical negligence on the part of the opposite party. Otherwise, there are not cases of prima facie negligence and the third type of cases may be where in spite of expert evidence being produced, the Forums established under the Act may not be in a position to adjudicate the dispute and may refer the complainant to the civil Court. The present is not a case of prima facie negligence on the part of the opposite parties. After Jaswinder Singh was admitted in the hospital, some treatment was given. Since his condition deteriorated and after the expert opinion of the doctors called to the hospital was obtained, it was decided to refer the patient to DMC, Ludiana. All these doctors whose affidavits have been produced have supported the opposite parties with regard to the treatment given to the patient being proper. The evidence of the complainants' relations as referred to above is not is not considered sufficient or relevant to prove negligent act either in the matter of making diagnosis or providing treatment. The complainant, thus, has to suffer for lack of evidence produced to support her allegation of negligent act on the part of the opposite parties. It may be observed that initially the complaints were represented by Counsel but after the evidence was led by the opposite parties, nobody has been appearing on behalf of the complainants. The complainants have thus utterly failed to prove negligent act on the part of the opposite parties and are not entitled to any compensation. There appears to be tendency on the part of the complainants to rope in doctors in frivolous litigation under the Consumer Protection Act. It may be so that no Court fee si payable on the complaints to be filed under the Consumer Protection Act. By bringing in frivolous litigation, the doctors are taken out of the hospitals and brought to the courts. In the hospitals, they would have done good cause by providing medical aid to the sick, whereas in the courts, they are made to waste time and suffer harassment. This is the position in the present case. The Commission ruled that we dismiss the complaint with the direction to the complainant to pay costs of litigation to the opposite parties, which are quantified at Rs. 5,000 (Rupees Five Thousand only).

RECENT COPRA JUDGEMENTS

Lekh Raj vs. Bharaj Nursing Home and another 1999 CCJ 1537

Punjab State Consumer Disputes Redressal Commission, Chandigarh

Lekh Raj, complainant, claims Rs. 17,00,000 as compensation in this case from the opposite party, Bharaj Nursing Home, Jalandhar and R. Rachhpal Singh Bharaj, owner and proprietor of the aforesaid nursing home. The complainant suffered injuries while going on scooter, which hit against parapet of the road on 11-7-1995 at 5.30 p.m. He sustained multiple fractures on his left arm and left leg. The accident occurred near village Pandore Sumlan, on Hoshiarpur Dasuya Road. A police patrol party took him to the nearest Primary Health Centre in village Hariana, District Hoshiarpur. The complainant is alleged to have given information to the persons collected about his address. The relatives also reached Primary Health Centre. The complainant was given first-aid and was referred to Civil Hospital, Hoshiarpur. The relatives and the police took the complainant to the nursing home of the opposite party at about 8..30 p.m. The complainant was in severe pain and agony, however, the opposite party did not got X-rayed. It appeared that the opposite party doctor did not want to disturb his own night. Some medicines were administered long with injections and some weight was put on the leg. The opposite party visited the nursing home at about 1 a.m. on 12-7-1995 and the glucose injection needle was reset and he immediately left. It was in the morning that X-ray was got done at about 9.30 a.m. At about 10 a.m. the relatives of the complainant were asked to arrange blood. It was the radiographer who after examining the X-rays at about 11 a.m. informed the complainant was referred to C.M.C., Ludhiana vide reference slips Annexures C-1 and C-2. At about 4 p.m. on 12-7-1995, the complainant reached C.M.C., Ludhiana, by then gangrene had developed with the result the leg of the complainant had to be amputated there. The complainant remained admitted in C.M.C. up to 18-8-1995. His left leg and left arm were also operated. He was re-admitted on 27-9-1995 and remained there till 13-10-1995. He suffered 90 per cent disability as per certificate Annexure C-3. He also produced bills Annexures C-4 to C-18 and outdoor receipts Annexures C-19 to C-20. The deficiency in service attributed to the opposite party is that the complainant was not promptly referred to C.M.C., Ludhiana, even after finding vascular injury along with two fractures in the arm and the leg referred to above. A big haematoma was also observed in the leg. There was discolour of the skin.

The opposite parties filed their version taking preliminary objections.

It was admitted that the complainant was brought to the nursing home at about 10.30 p.m. by the police. He was under severe shock. Pulse and blood pressure were not recordable. The complainant was also smelling of alcohol from his breath. The complainant had fractures of both the bones of the arm and fracture of left forearm with extensive soft tissue trauma in the left thigh, which was swelling with blue discolouration due to big haematoma. The limb was flail with deformity and unnatural mobility. In order to recover the patient from shock necessary treatment was given, to save his life. At that critical stage it was wisdom of the doctor to decide to save the limb or the life. On merits negligence attributed to the opposite parties was denied.

Two questions are for consideration in this case, which are framed as under:

1. Whether there was any negligent act on the part of the opposite party in the matter of diagnosis and treatment given to the complaint ultimately resulting in disability?
2. Compensation, if any, if the complainant is entitled.

The injuries were suffered by Lekh Raj at about 5.30 p.m. on 11-7-1995. He was taken to Primary Health Centre of Village Hariana from where he was referred to Civil Hospital, Hoshiarpur (Annexure C20). The patient reached Bharaj Nursing Home of opposite party at about 8.30 p.m. on that very day. This would show that about three hours time had already elapsed when the patient was examined by the opposite party. Since the patient was in shock, blood pressure was unrecordable because of the two fractures - one on the arm and other on the leg and there existed a big haematoma on account of injury to the vessel in the leg, treatment to stabilise the patient by administering fluids through intravenous coupled with some medicines was required and given. Support to the leg was also provided. Since the patient was in shock it was not considered necessary to have X-ray immediately. Sometime must have been taken for clinical examination of the patient and for providing aforesaid treatment as expressed by experts referred to above. It was necessary to allow the patient to come out of shock. It is futile to argue as suggested by the Counsel for the complainant that immediately at 8.30 p.m. doctor, the opposite party, should have referred the patient to C.M.C. as no treatment for the vessel injuries could be provided by the opposite parties. There is fallacy in this argument. The attempt of every doctor initially would be to bring the patient out of shock and thereafter to decide about the nature of treatment to be given. Journey to Ludhiana from Hoshiarpur even by road would have taken about two hours. By that time obviously the maximum period of six hours as referred expired and the damage ultimately caused to the patient of amputation of the leg could not have been attributed to any act on the part of the opposite parties.

In the context of negligent act on the part of the opposite parties, it was further argued that even in the morning at the time of referring the patient to C.M.C., Ludhiana, the condition of the patient was still under shock. It has been explained that blood pressure at that time was recordable and before that time requisition for blood has already been made, it is also the part of the treatment. The amputation of leg is not on account of injuries suffered. The complainant has thus utterly failed to prove negligent act of the opposite parties either in the matter of providing treatment or in the matter of alleged delay in referring the patient to C.M.C., Ludhiana.

In view of the fact that the complainant had failed to prove negligent act on the part of the opposite parties, it si not considered necessary to decide as to how much amount of compensation the complainant would have been entitled to. For the reasons recorded above, this complainant fails and is dismissed.

RECENT COPRA JUDGEMENTS

Dr. B. Narasaiah Vs. Kande Laxmaiah 1999 CCJ 999

Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad

The wife of the complainant namely, Kande Lingamma, was taken to opposite party No.1, i.e, Dr. B. Narasaiah of Amangal, Mahaboobnagar District, as she was suffering from severe stomach pain and strict, as she was suffering from severe stomach pain and continuous vomiting on 15-7-90. The opposite party No.1 prescribed some medicines and the patient was asked to be brought after four days. On 19-7-1990, the complainant and his wife went to the opposite party No.1, who advised them to get an X-ray. After seeing the X-ray, the opposite party No. 1 diagnosed that the complainant's wife was suffering from chronic appendicitis and advised operation. On 28-7-1990, the complainant's wife was admitted in Soujanya Nursing Home, i.e., opposite party No.2 and was operated by the opposite party No.1 on the same day and was discharged on 8-8-1990. The complainant paid the necessary amount. But after four days, after discharge, the complainant took his wife to the opposite party No.1 as she was having vomiting. The opposite party No.1 prescribed some medicines and gave injection and the complainant's wife was thereafter taken for doctor's treatment two or three times within 22 days. As the health of the complainant's wife was deteriorating, on 2-9-1990 the opposite party No.1 advised the patient to be taken to Osmania General Hospital, Hyderabad. According to the complainant, the Dy. Medical Officer who examined her got anguished regarding the mode of treatment and surgery done by the opposite party No.1 and after testing he diagnosed that the complainant's wife was suffering from cancer. She, thereafter underwent two operations and after the second operation, she expired on 15-9-1990. Alleging that due to wrong diagnosing that the complainant's wife was suffering from appendicitis and conducting operation for appendicitis by the opposite party No.1, the complainant's wife died, the complainant claimed compensation of Rs. 75,000 including the cost of medicines and other expenses from the opposite party No.1 with costs.

The opposite party No.1 filed a counter stating that he advised the wife of the complainant to undergo surgery, as she was suffering from chronic appendicitis and that to rule out the real or uretericstone which sometime mimics appendicitis X-ray was taken and as she expressed her unwillingness to go to Hyderabad for the surgery and insisted to prescribe some medicines. So a course of antibiotics and anti-inflammatory drugs were given to her and she went to her village. Again she was brought to the opposite party No.1 on 29-7-1990 with severe pain. Then the opposite party No.1 advised emergency surgery, but due to administrative reasons as the same could not be performed in primary health centre in which the opposite party No.1 is working, the patient was admitted in the Soujanya Nursing Home, i.e, opposite party No.2 and the opposite party No.1 operated and the inflamed appendix was removed and sent for histopathological examination which confirmed the diagnosis of the acute appendicitis. Sometime after she was discharged she was again brought to the opposite party No.1 once or twice for routine check up, but she did not complain any pain. It was only on 1-9-1990 she again came with vomiting and was found to have distension of her abdomen and no mass fell through rectal examination. She was managed conservatively for submitted intestinal obstructions with fluids and nasogastric aspirations, but as there was no relief due to these medicines, she was referred to the Osmania General Hospital for further management. As she was admitted in Osmania General Hospital and as she actually dies on 15-9-1990 is Osmania General Hospital after two operations, the diagnosis made is correct and there is no negligence on the part of the opposite party No.1 in removing the appendicitis. Hence, there is no negligence or deficiency of service on the part of the opposite party No.1

The district Forum held that the patient was suffering from cancer and the opposite party No.1 wrongly diagnosed it as appendicitis and conducted the operation, due to which the complainant's wife died. The complaint was allowed in part directing the opposite party No.1 to pay a sum of Rs. 10,000 and Rs.200 as costs and dismissed the complaint as against the opposite party No.2.

The statement made by K. Laxmaiah that doctors at Osmania General Hospital made the diagnosis of cancer as soon as they saw the patient is false. The diagnosis of recurring appendicitis for which operation was done was never contested by the medical staff of the Osmania General Hospital. The death of K. Lingamma was not attributed to any previous surgery. The affidavit clearly discloses that the opposite party No.1 is not negligent either in diagnosing the ailment of the complainant's wife as appendicitis or in conducting the operation thereon. The action of the opposite party No.1 was supported by Exh. B-4 and the extracts of Exh.B-5, the operation notes and we are, therefore, satisfied that there is no negligence on the part of opposite party No.1 in diagnosing or in conducting the operation and in removing the appendix.

For all the aforesaid reasons, we allow the appeal and set aside the order of the District Forum. There shall be no order as to costs in this appeal.

RECENT COPRA JUDGEMENTS