w w w . L a w y e r S e r v i c e s . i n



Dr. Akhil Chandra Paul & Another v/s Anjana Mitra Mazumdar


Company & Directors' Information:- J MITRA AND CO PRIVATE LIMITED [Active] CIN = U52110DL1969PTC005010

Company & Directors' Information:- MITRA S K PVT LTD [Active] CIN = U51909WB1956PTC023037

Company & Directors' Information:- R. G. PAUL PRIVATE LIMITED [Active] CIN = U51597WB2016PTC216669

Company & Directors' Information:- MITRA CORPORATION LIMITED [Active] CIN = U74999WB2012PLC180831

Company & Directors' Information:- PAUL & COMPANY (INDIA) PRIVATE LIMITED [Active] CIN = U51909DL1998PTC091926

Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- D K PAUL & COMPANY PRIVATE LIMITED [Strike Off] CIN = U27109WB2000PTC090959

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

Company & Directors' Information:- S K MITRA & CO PVT LTD [Strike Off] CIN = U31909WB1946PTC013993

Company & Directors' Information:- K PAUL PVT LTD [Strike Off] CIN = U74210WB1942PTC011033

Company & Directors' Information:- K C PAUL & CO PVT LTD [Strike Off] CIN = U36101WB1938PTC009323

Company & Directors' Information:- M B MAZUMDAR PVT LTD [Strike Off] CIN = U29299WB1948PTC016391

Company & Directors' Information:- R C PAUL PVT LTD [Strike Off] CIN = U51909WB1945PTC012571

Company & Directors' Information:- S C PAUL & CO PVT LTD [Strike Off] CIN = U74999WB1943PTC011307

    First Appeal Nos. 35 of 2011 & 04 of 2012

    Decided On, 28 February 2019

    At, Assam State Consumer Disputes Redressal Commission Gauhati

    By, THE HONOURABLE MR. DILIP KUMAR MAHANTA
    By, & THE HONOURABLE MS. RENU PRAVA
    By, MEMBERS

    For the Appellants: A. Dhar, Surajit Dutta, Advocates. For the Respondent: S. Choudhury, Noorjaman Ahmed, Noorjaman Ahmed, Advocates.



Judgment Text

Dilip Kumar Mahanta, Member:

1. Both these appeals are directed against the order dated 17.6.2011 passed by the District Consumer Disputes Redressal Forum, Cachar, Silchar, in respect of C.P. Case No. 36 of 2008, filed by respondent Smt. Anjana Mitra Mazumdar and as such, the two appeals have been clubbed together and are disposed of by this common judgment.

2. Brief facts giving rise to these appeals are as follows : According to the version of the complaint petition, on 17.7.2006 night, complainant’s husband Debasish Mitra Mazumdar who had been suffering from fever with pain in the abdomen, was taken to the Red Cross Hospital, Park Road, Silchar. He was attended by appellant Dr. Arunabha Datta who prescribed medicines and suggested for Sonography test as well as some blood tests for further diagnosis. It is the allegation of the complainant that on 18.7.2006, after going through the reports of Sonography and other tests pertaining to the patient, Dr. Arunabha Datta, diagnosed the problem as “Acute Appendicitis” and recommended immediate removal of the appendix as it was on the verge of bursting. He also suggested the name of Dr. Akhil Chandra Paul for further consultation and surgery. Accordingly, complainant’s husband was admitted in the Ellora Nursing Home at Silchar, on 18.7.2006, and on the same date, Dr. Akhil Chandra Paul conducted the operation for removal of the patient’s appendix.

3. It is the version of the complainant that after completion of the operation, at about 2-30 p.m., the surgeon, above named, left for other works though the patient was complaining about acute pain and on much request and persuasion, he examined the patient around 9 p.m. and assured the complainant that everything was alright. According to the complainant, after the operation, her husband was discharged from the said hospital on 22.7.2006, though he was not fully recovered.

4. The further accusation of the complainant is that thereafter, on 19.8.2006, once again, her husband had to be hospitalised in the Red Cross Hospital, Silchar, and blood transmission was done as his haemoglobin percentage was found to be on the lower side. According to the complainant, this deterioration of the health condition of her husband was purely due to infections arising out of the operation performed by Dr. Akhil Chandra Paul. On 25.8.2006, complainant’s husband was released from the Red Cross Hospital, Silchar, on the request of the complainant and his family members. Subsequently, 30.8.2006, complainant’s husband was admitted in the Apollo Hospital at Chennai. According to the contention of the complainant, doctors of the said hospital disclosed before them that the condition of the patient had arisen due to premature and negligent operation leading to internal infection. Complainant could not complete the treatment of her husband at Apollo Hospital at Chennai, due to alleged financial constraint, and had to take voluntary discharge. Ultimately, complainant’s husband expired on 13.9.2006.

5. Under the said circumstance, the respondent, as complainant, instituted C.P. Case No. 36 of 2008 claiming from the two appellant doctors Rs. 2,00,000 towards medical expenses of her husband plus Rs. 8,00,000 as compensation along with litigation cost.

6. The District Forum after hearing both the parties and on perusal of the evidence on record, directed both the appellants to pay to the respondent complainant total amount of Rs. 10,05,000 (Rs. 2,00,000 for medical expenses and Rs. 8,00,000 as compensation plus Rs. 5,000 towards litigation cost). It has further been ordered that the awarded amount will be required to be paid by appellants Dr. Akhil Chandra Paul and Dr. Arunabha Datta at the ratio of 70% and 30% within a period of two months from the date of judgment failing which, the entire amount shall carry interest @10% per annum from the date of judgment till realisation. The said order has now been challenged in the present appeals.

7. We have heard the learned Counsel appearing for the appellants and have duly perused the impugned order of the District Forum, written arguments submitted by the rival parties, as well as the records of the relevant case filed by the complainant. However, the oral submission of the respondent / complainant could not be taken notice of as their engaged Counsel was not in attendance for the last several dates fixed for hearing.

8. In her evidence, the complainant has asserted that when her husband was hospitalised in the Apollo Hospital at Chennai, she was told by the attending doctors of the said institution that the operation conducted on her husband was done prematurely without conducting the required tests like X-ray to make out the position of the appendix. According to her testimony, the said doctors also disclosed before her mother-in-law (P.W.-2) that the condition of the concerned patient had arisen because of premature and negligent operation leading to infections arising out of the said surgery. She has also alleged that Dr. Arunabha Datta assisted Dr. Akhil Chandra Paul in the said surgical operation and later on, he delayed the release of the complainant’s husband from Red Cross Hospital, Silchar, knowing fully well that the operation conducted by Dr. Akhil Chandra Paul had caused infections in the body of the patient and thus prevented complainant’s husband from getting better treatment.

9. The description of the complainant (P.W.-1) and her mother-in-law (P.W.-2) that the doctors of the Apollo Hospital at Chennai, revealed before them that the complications of the concerned patient had cropped up due to negligent handling of the surgical procedure conducted by the two appellant doctors, is however, nothing but hearsay evidence, because, admittedly, no doctor of Chennai Apollo Hospital has been examined as witness to authenticate the said versions.

10. Rather, in her evidence, P.W.-2 has categorically deposed that the doctors of Apollo Hospital had disclosed to them that they suspected that the patient might be suffering from blood cancer. It also appears from the medical papers submitted by the complainant that both Red Cross Hospital, Silchar, and the Apollo Hospital at Chennai, suggested for bone marrow test and biopsy to detect the cause of post appendicectomy fever and alarming decrease in the platelet count of the complainant’s husband, but no such test was performed, as suggested.

11. In the impugned judgment, the District Forum has observed that in the Discharge Certificate dated 25.8.2006 (Ex.-11), it has been mentioned that the complainant’s husband was suspected to be suffering from intra-abdominal infection and that after the operation, there was rapid fall of the Haemoglobin and WBC count of the patient and all these facts are suggestive of the point that the condition of the patient started to deteriorate after the mishandling of the surgical operation and improper post-operative treatment rendered by the two appellant doctors.

12. In our considered opinion, the finding of the District Forum cannot be accepted for the following reasons. Simply because there was rapid fall of the Haemoglobin and WBC count of the patient, after his discharge from the hospital, following the operation for removal of the patient’s appendix, it cannot be straightway held that this was due to post-operative infection.

13. The operation was performed on 18.7.2006 and the patient was released from hospital on 22.7.2006. About one month later, the patient was admittedly, had to be hospitalised once again, in the Red Cross Hospital, Silchar, on 19.8.2006, as his haemoglobin percentage was found to be on the lower side. During the period of treatment, three units of blood transmission were done. Though, bone marrow test and biopsy to detect the cause of post appendicectomy fever and alarming decrease in the platelet count of the complainant’s husband was suggested, no such test was carried out. As per request of his family members, the patient was ultimately discharged from the said hospital on 25.8.2006.

14. Afterward, on 30.8.2006, complainant’s husband was admitted in the Apollo Hospital at Chennai. In this hospital also, the treatment of the complainant’s husband was not completed as the family members of the concerned patient requested discharge from the said clinic on the plea of financial constraint. In view of the said request, accordingly, the patient was discharged from Chennai Apollo Hospital on 5.9.2006 against medical advice.

15. In the relevant Discharge Certificate (Ex.-21) of the Apollo Hospital at Chennai, it has been mentioned that the complainant’s husband was investigated for suggested intra-abdominal residual abscess. His haematological parameters showed an alarming decrease in the platelet count and WBC count.

16. Opinions of infectious disease specialist, medical gastroenterologist and haematologist were taken for optimization of his status for the surgery which he was advised. Several transfusions of platelets were done. A bone marrow aspiration was advised to sort out his thrombocytopenia and visualization of blast cells in the blood smear. However, the patient, allegedly, due to his dire financial position, requested to be discharged against medical advice and accordingly, he was discharged on request.

17. Thrombocytopenia is a condition in which a person has a low blood platelet count. Platelets (Thrombocytes) are colourless blood cells that help blood to clot. Platelets are made in the bone marrow, the spongy tissue inside our bones. One can get thrombocytopenia if the body does not make enough of them, or if they are destroyed faster than they can be made. The body might not make enough platelets if the person has a

* Blood disorder that affects the bone marrow, called aplastic anemia.

* Cancer such as leukemia or lymphoma, which damages the bone marrow.

* Platelet lowering disease that runs in the family, like Wiskott-Aldrich or May-Hegglin syndrome.

* Virus such as chickenpox, mumps, rubella HIV, or Epstein-Brarr.

18. Likewise, the most immature cells are called myeloblasts (or blasts in short). The percentage of blasts in the bone marrow or blood is particularly important. Having at least 20% blasts in the marrow or blood is generally required for a diagnosis of Acute Myeloid Leukemia.

19. The above discussion clearly reveals the importance of the bone marrow biopsy in the case of the complainant’s husband. Admittedly, though both Red Cross Hospital, Silchar, and the Apollo Hospital, Chennai, advised the patient to go for the said test to appropriately identify the reason for reduction of his blood platelet count and WBC count, as the family members of the concerned patient did not go for the said test, the diagnosis remained inconclusive.

20. In view of this position, the actual cause of fever and decrease in the platelet count of the complainant’s husband remained undetected. Though the doctors suspected the cause to be of intra-abdominal infection, no conclusive finding could be arrived at as the necessary bone marrow test and biopsy was not carried out as suggested. There is apparently nothing in the medical papers submitted on behalf of the complainant to establish that the decline in the health condition of her husband, after his appendix surgery was as a result of post-operative intra-abdominal infection.

21. From the evidence on record, it is quite evident that Dr. Arunabha Datta was in no way connected with the surgical procedure performed by appellant Dr. Akhil Chandra Paul for removal of the appendix of complainant’s husband. Therefore, the finding of the District Forum to club both the doctors, above named, for the alleged medical negligence in respect of the said operation, referred to above, cannot be accepted.

22. In view of this position, the main point for decision in the present case is whether appellant Dr. Akhil Chandra Paul performed the appendectomy without due care and attention or whether he conducted the said surgical procedure in ordinary course of a doctor’s duty. The well settled proposition in such cases is that the complainant must produce expert medical evidence in support of his/her allegation of medical negligence or incompetence of the doctor against whom the case has been brought. In absence of production of any expert evidence indicating negligence, the appellant doctor cannot be held neglectful in his service in treating the patient. When the complainant alleges medical negligence on the part of the treating doctor, the onus of proving the same squarely lies on the complainant. It is to be noted here that in the instant case, no evidence has been produced by the complainant to establish any medical carelessness in treating her husband in respect of the appendix surgery performed by appellant Dr. Ak

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hil Chandra Paul. 23. Besides this, the doctors who have treated the patient in the Apollo Hospital at Chennai, have also not opined any thing in the Discharge Certificate (Ex.-21) that the appendectomy conducted by appellant Dr. Akhil Chandra Paul was inappropriate or negligent and/or that the subsequent deterioration of the health condition of the patient was as a result of the said surgical intervention, as the District Forum has come to the conclusion, that appears from the judgment under challenge. 24. In the facts and circumstances detailed above, we are of the view that the finding of the District Forum that rapid fall of Haemoglobin and WBC count of the complainant’s husband, after his discharge from the hospital, following the operation for removal of the appendix, was due to post-operative infection, cannot be sustained. 25. Accordingly, we allow the present appeals and set aside the impugned order of the District Forum. Consequently, the complaint petition filed by the complainant stands dismissed. 26. However, under the facts and circumstances of the case, there will be no order as to cost. The statutory amount deposited by the appellants before this commission, if any, may be released in their favour. The original record of the C.P. Case No. 36 of 2008 is to be returned to the concerned District Forum along with a copy of this judgment. Appeals allowed.
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