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



Dr. Anirban Jana, Medical Officer, Kasturi District Hospital v/s Kamal Saha & Others

    First Appeal No. A/1258/2015

    Decided On, 26 April 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT & THE HONOURABLE MR. TARAPADA GANGOPADHYAY
    By, MEMBER

    For the Appellant: Binota Roy, Advocate. For the Respondent: Mita Bag, Ritobroto Banerjee, Abhik Kr. Das, Advocates.



Judgment Text

Tarapada Gangopadhyay, Member

This Appeal U/s 15 of the C.P.Act 1986 is directed by the Op no.1 assailing the judgement and order dated 5.10.2015 passed by the Ld. District Forum, Nadia in Complaint Case No.CC/2013/11, directing the OP no.1 to pay, within 30 days from the date of the order, to the complainant Rs.4,90,000/- (Rupees four lakhs ninety thousand) , Rs.1 lakh (Rupees one lakh) as compensation and Rs.10,000/- (Rupees Ten thousand) as Litigation cost, failing which interest @10% per annum would be paid by the OP no.1 to the Complainant 'till full realization'.

The facts of the case, as appearing from the materials on record, are that the Respondent No.1/Complainant visited the Appellant/OP No.1-Doctor on 10.12.20123 with problem in Gallbladder when the Appellant/OP No.1-Doctor advised some tests upon examination the reports of which the Appellant/OP No.1 Doctor advised the Respondent No.1/Complainant for admission to Respondent No.4/OP No.4-Nursing Home where Laparoscopic Cholecystectomy was done on 16.12.2012 and discharged on 22.12.2012 with post operative USG report showing 'Normal' as revealed from the Discharge Certificate dated 22.12.2012. In course of Laparoscopic Cholecyctectomy the Appellant/OP No.1-Doctor upon detecting the reverse anatomical position of the Gallbladder, suggested for Open Surgery but the patient party allegedly did not give consent forsurgery and then the Appellant/OP No.1-Doctor completed the Laparoscopic Cholecystectomy. After Laparoscopy Cholecystectomy when the Respondent No.1/Complainant felt pain in abdomen and continuous passing of urine the Respondent No.1/Complainant revisited the Appellant/OP No.1-Doctor on 24.12.2012 when upon perusal of the blood report dated 24.12.2012 reporting increase of value of Bilurubin to '8.04' the Appellant/Op No.1 Doctor referred the Respondent No./Complainant to Calcutta National Medical College and Hospital for second opinion where on 31.12.2012 Respondent No.2 /OP No.2-Doctor diagnosed development of 'Post operation jaundice C/O P.O. Bile C/O Leakage' . Thereafter, the Respondent No.1/Complainant revisited the Appellant/OP No.1-Doctor on 10.1.2013 when the Appellant/OP No.1-Doctor drained out stored fluid of 3.5 Ltr. by means of syringe extraction. Thereafter the Respondent No.1/Complainant got admitted into National Medical College and Hospital where the Respondent No.2/OP No.2-Doctor on 14.1.2013 drained out fluid of 6.5 Ltr. exploring abdomen and after such drainage of fluid the Respondent No.2/OP No.2 Doctor referred the Respondent No.1/Complainant to the Respondent No.3/OP No. 3 Doctor at SSKM Hospital where Respondent No.3/OP No.3 Doctor on 22.4.2013 performed second operation and discharged the Respondent No.1/Complainant on 29.4.2013. With the aforesaid factual background the Complainant moved the Complaint Case concerned before the Ld. District Forum which passed the order in the aforesaid manner. Aggrieved by such order , the oP no.1 Doctor has preferred the instant Appeal.

Ld. Advocate for the Appellant/OP No.1-Doctor submits that the Ld. District Forum passed the impugned judgement and order in total defiance of settled principle of law to the effect that Surgeon cannot be held responsible for every post operative complication, for complication occurring during the treatment. Ld. Advocate adds that the Surgeon who performed the second Operation did not mention any defect of first surgery. In this context ld. Advocate refers to the decisions of Hon’ble National Commission in Smt. Vidya Devi –Vs- Dr (Mrs)Jatinder Chaddha and Anr. reported in 2014(2) CPR 340 (NC) and Dr. Sanjay Gadekar Suprathet Hospital and Surgical Research Institute Ltd. –Vs- Sanghamitra Khobragade reported in 2016(3) CPR 270 (NC) and Mrs Lalita Ramesh Jain V. Talesara Hospital & Anr, reported in 2013(2) CPR 515 (NC).

Ld. Advocate also submits that the ld. District Forum did not apply its mind properly in course of adjudication of the Complaint case concerned as is evident from its self-contradictory observation to the effect that the Appellant No.1/OP No.1 Doctor was aware of reverse anatomical position of the Gallbladder as against non adoption of open surgery before performing Laparoscopic Cholecystectomy .

Ld. Advocate continues that the ld. District Forum passed the order impugned on the basis of perception which is contrary to the settled principle of law to the effect that medical negligence is not a matter of perception and inference as well but a matter of proof. In this connection, Ld. Advocate refers to a decision of the Hon’ble National Commission in Abraham Koola and Anr. –Vs- Royal Hospital and Anr., reported in 2011(3) CPR 478 (NC).

Ld. Advocate continues that the Appellant /OP No.1- Doctor provided service as per Standard treatment Protocol and hence there is no negligence on the part of the Appellant/OP No.1 Doctor.

Ld. Advocate further submits that there is no conclusive evidence such as expert-opinion to prove negligence on the part of the Appellant/OP No.1 Doctor.

Ld. Advocate concludes that in view of the aforesaid submission the instant appeal should be allowed, the impugned order be set aside and the complaint be dismissed.

Ld. Advocate for the Respondent No.1/Complainant submits that the value of Bilurubin increased after Laparoscopic Cholecystectomy, indicating injury in CBD during surgery, which indicates lack of skillful and proper care on the part of the Appellant/OP No.1-Doctor.

Ld. Advocate continues that there is no proof on the part of the Appellant/OP No.1-Doctor that he proposed Open surgery after detecting reverse anatomical location of the Gallbladder as the Appellant/OP No.1 Doctor has taken recourse to.

Ld. Advocate further submits that the Continuation Sheet dated 31.12.2012 of Calcutta National Medical College and Hospital reveals 'Post Operation Jaundice,C/O P.O. bile leakage' which clearly indicates defect as well as carelessness in Laparoscopic Cholecystectomy by the Appellant Op No.1- Doctor.

Ld. Advocate continues that diagnosis in the Discharge Certificate dated 22.4.2013 of IPGMER, Calcutta where Respondent No.1/Complainant was finally treated, to the effect of, 'External 'Biliary fistula' also indicates lack of proper and skillful care on behalf of the Appellant/Op No.1- Doctor.

Ld. Advocate finally submits that the second operation by Dr. U.Bhattacharya on 14.1.2013 subsequent to first operation on 16.12.2012 by the Appellant /OP No.1-Doctor, indicates negligence and deficiency on the part of the Appellant/OP No.1 Doctor.

Ld. Advocate concludes that in view of the aforesaid submission the instant Appeal should be dismissed and the impugned order be upheld.

Ld. Advocate for the Respondent No.4 /OP No.4 submits that Sri Narayan Hospital and Research Centre, Vellore on 10.4.2012 i.e. before the Laparoscopic Cholecystectomy by the Appellant/OP No.1-Doctor, detected problem in Gallbladder, which clearly points to no necessity of USG before Laparoscopic Cholecystectomy.

None appears on behalf of the Respondent Nos.2 and 3/OP Nos.2 and 3 to advance their defence.

Heard both the sides appearing , considered their respective submissions and perused the materials on record.

The absence of Pre-operation USG report on the records suggest that the Appellant/Op No.1-Doctor initiated Laparoscopic Cholecystectomy without ascertaining the anatomical position of the Gallbladder, which indicates lack of reasonable and careful service on behalf of the Appellant/OP No.1 Doctor.

Suffering from jaundice, upper biliary stricture, intra- abdominal fluid collection, Post-cholecystectomy CBD injury , external biliary fistula' as evident respectively from Continuation Sheet dated 31.12.2012, Post Operation MRI report dated 3.1.2013 , Post Operation USG dated 10.1.2013 of whole abdomen and Discharge summary dated 29.4.2013 of IPGMER, indicate that the Appellant/OP No.1-Doctor at the time of Laparoscopic Cholecystectomy did not take requisite steps to prevent the occurrence of the above noted problems after Laparoscopic Cholecystectomy , which is unexpected from any medical professional and such lapse on behalf of the Appellant/OP No.1-Doctor indicates deficiency in service and resultant negligence on behalf of the Appellant/OP No.1 Doctor.

Repeated 'Exploratory Laparotomy and drainage of biloma' in the Calcutta National Medical College and Hospital on 14.1.2013 as revealed from the Discharge summary dated 9.2.2013 of the said hospital substantiates medical negligence at the time of first Laparoscopic Cholecystectomy performed by the Appellant/OP No.1-Doctor.

The above referred evidences of treatment indicate that Appellant/Op No1- Doctor failed to adhere to the principle of meticulous dissection so that only positively identified structures are divided.

It is well settled that expert opinion is not mandatory in all cases of medical negligence particularly in the cases where medical negligence is evident exfacie on records as in the case on hand.

The foregoing facts and evidences on records clearly indicate the presence of three essential components of medical negligence i.e. 'duty', 'breach' and 'resultant damage' as was held by the Hon’ble Supreme Court in Jacob Mathew –Vs- State of Punjab, reported in (2005)6 SCC 1 are present in the case on hand.

Facts of the decisions referred to by the ld. Advocate for the Appellant/OP No.1 Doctor being not identical with the facts the case on hand, those are of no help to the Appellant/OP No.1 Doctor.

Consequently, the instant Appeal deserves dismissal and is dismissed accordingly. The impugned order is modifi

Please Login To View The Full Judgment!

ed to the following extent. The Appellant/OP no.1-Doctor is directed to pay, within 45 days from the date of this order, to the Respondent No.1/Complainant Rs.5 lakhs (Rupees Five lakhs) as Compensation which appears to be just and reasonable in view of the degree of damage to the Respondent No.1/Complainant and Litigation cost of Rs.10,000/- (Rupees Ten thousand). The Respondent No.4/OP No.4 Nursing Home being vicariously liable for its failure to ensure careful and reasonable service by the Appellant/OP No.1-Doctor who was engaged with it for rendering proper and careful service, is also directed to pay within the aforesaid period to the Respondent No.1/Complainant Rs.1 lakh (Rupees one lakh). In case of default in payment the Appellant/OP No.1- Doctor and the Respondent No.4/OP No.4-Nursing Home shall be liable to pay interest @ 9% per annum to the Respondent No.1/Complainant for the entire period of default. Other issues in the impugned order shall remain unaltered. The instant Appeal is disposed of in the aforesaid manner.
O R