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



Nandini Bala Saha v/s Dr. M. Pramanik & Another


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

Company & Directors' Information:- NANDINI INDIA PRIVATE LIMITED [Active] CIN = U51900GJ2016PTC085844

    Complaint Case No. CC/89/2010

    Decided On, 29 May 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT
    By, THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER & THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, MEMBER

    For the Complainant: Binota Roy, Rajtilak Ghoshal, Advocates. For the Opp. Party: Koyeli Mukhopadhyay, Prabir Basu, Advocates.



Judgment Text

Ishan Chandra Das, President

The Complaint Case being C.C. 89 of 2010 originated from a Petition of Complaint filed before this Commission (W.B.S.C.D.R.C.) dated 02/12/2010 alleging medical negligence against the OPs and claiming compensation of a sum of Rs.42,00,000/- (Rupees forty two lakh) for the death of wrongful and/or negligent treatment of the patient Sukul Chandra Saha, and for other consequential reliefs.

Briefly stated, the case of the complainant was that on 27.2.2010 at about 11-00 a.m. her husband Sukul Chandra Saha a School teacher by profession was admitted to Dishari Health Point (P) Ltd. a Nursing Home of the O.P. No.1 located at Malda with the pain of abdomen. After going through the different clinical & radiological tests including USG , the OP nO.1 (Dr. Manabesh Pramanik & hereinafter referred to as O.P. no.1) opined that there was acute calculus cholecystitis on the gall-bladder and advised for surgical treatment . On 28.2.2010 i.e. on the next day some tests were done and after perusing the reports , the O.P. NO.1 operated the patient at about 5-30 p.m. and after such operation, the O.P. No.1 informed the patient party that the operation was successful, the drain having put in sub hepatic space . On 1.3.2010 i.e. on the next date of such operation, the complainant noticed that nothing was coming out from the drain filled inside the body of the patient. On 2.3.2010 the O.P. NO.1 took the patient inside the operation theatre and thereafter the complainant found something coming out through the drain. Immediately after the said operation, the physical condition of the patient deteriorated gradually and on being asked by the complainant, the O.P. No.1 explained that a few sludge remained in the Gall-bladder and it would be cured by proper medicine and injection and if not cured, the E.R.C.P. would be done by the doctor who was scheduled to visit the Nursing Home on 11-3-2010. In that process the O.P. No.1 had confined the patient at his Nursing Home for more than five days during which period sludge was continuously coming out through ‘Drain’ by over-flowing . On 7.3.2010 , the O.P. NO.1 told the complainant that there the E.R.C.P.would not be necessary and the patient would be cured by medicine only and the patient was kept under the observation of the O.P. NO.1 till 9-3-2010 , when the patient was discharged with the advice of E.R.C.P. , to be done at Dishari Nursing Home on 11-3-2010. The complainant brought her husband to her house, observed the colour of urine of her husband & being perplexed contacted the O.P. NO.1 that as per Biopsy report, there was cancer in the place of surgery. The complainant alleged that the O.P. NO.1 intentionally lapsed a few days’ time for referring the patient to a Hospital in Kolkata for his better treatment by performing E.R.C.P. but lastly on 15.3.2010, the complainant was advised to remove the patient to Kolkata and a reference to the O.P.No.2 (Dr.Bharat Vyas hereinafter referred to as the O.P. No.2) , of Gujrati Relief Society was given. Accordingly, the patient was brought to Kolkata on 15.3.2010 and he was admitted in the said Hospital under the O.P. No.2 and on 16.3.2010 , as per advice of the O.P. NO.2, the E.R.C.P. of the patient was done at Kothari Medical Centre by one Dr. Pattanayak. In the report of the said E.R.C.P. of the patient , Dr. Pattanayak highlighted the defects in the operation site. The complainant also alleged that Dr. Vyas wrongly fitted the rice pipe through the nose and it was found that deoxygenated blood and sludge were coming out through drain and at last on 18.3.2010 at about 9.25 a.m., the complainants’ husband died due to the negligence and wrong treatment of the OPs No. 1 and 2. It was further alleged that the Op No.1 did not advise the test for detecting cancer prior to the operation and the O.P. NO.1 further reported to the complainant that the husband died due to ‘Septicemia’ but to save themselves they issued the death certificate showing that the reason of death was ‘cancer’. The complainant in her petition of complaint also alleged that the patient was not attended by the O.P. NO.2 under whom he was admitted and the premature death of the patient was caused due to negligence and deficiency of proper care at the post operative stage which prompted the complainant to take recourse of this Commission claiming reliefs in terms of the petition of complaint.

The O.P. NO.1 (Dr. Manabesh Pramanik) filed a Written Version to contest the Complaint Case and prayed for dismissal of the same for want of cause of action . In the first part of his Written Version , the O.P.No.1 questioned the competency of the State Commission in dealing with the complicated case of medical negligence and advised the Commission to pressurize the complainant in filing any expert’s opinion but in the later part of his Written Version, the O.P. NO.1 admitted that the patient (Sukul Chandra Saha and hereinafter referred to as the patient) was first checked by him on 22.2.2010 and on clinical examination, the O.P. NO.1 found the patient suffering from cholecystitis and after some pathological and radiological tests Laparoscopic Cholecystectomy was done on 28.2.2010. The process of such operation was uneventful and it was noted in the “Discharge Summary” . In the said Written Version the O.P. NO.1 stated that the specimen was sent for Histopathological examination and in the post operative period there was minimal bile leak which gradually reduced, conservative treatment was given to the patient & it got stopped draining. On 6.3.2010 , U.S.reveals Cholangitis with minimal fluid in POD and GB fossa. The O.P. NO.1 in his Written Version also stated that on 8.3.2010, USG was done and it shows sludge in C.B.D. and minimal collection in G.B.fossa for which the patient was given conservative treatment though it was felt that the patient might need E.R.C.P. It was also stated in the said W.V. that on the 6th day of operation the stitches were removed, the wound was found healthy and the patient was discharged . On 9.3.2010 with all his test reports, condition and prognosis of the patient was explained to one Pinaki Saha, a relative of the patient.

Denying and disputing all other material allegations, as contained in the body of the Petition of Complaint, the O.P.No.1 denied all the allegations against him including conspiracy or connivance in between both the O.Ps. demanded strict proof all the allegations and ultimately prayed for dismissal of the Complaint case.

The O.P. No.2 (Dr. Bharat Vyas & hereinafter referred to as the O.P.No.2 ) in his separate Written Version categorically denied all the allegations brought against him, demanded strict proof of all the allegations and ultimately prayed for dismissal of it with costs.

Now the only point for consideration is – whether the OPs were negligent in treating the patient and deficient in giving proper /adequate service as required under the standard protocol of such treatment.

Admittedly, the patient (i.e. Sukul Saha, the husband of the complainant) was admitted to Dishari Health Point (P) Ltd with complaint of severe pain in abdomen and he was examined by the O.P.No.1 who advised for several tests like USG etc and it was detected that the patient was suffering from Acute Calculus Cholesistitis of the Gall-bladder and the patient was advised for surgery and upon receiving all the test reports, the O.P. NO.1 upon finding the patient fit for undertaking surgery, performed successful surgery on 28.2.2010 at 5.30 p.m. with putting drain in Subsequent-hepatic space.

Ld. Counsel appearing for the complainant in course of her argument drew our attention to the medical records of the patient and pointed out that the patient suffered from several post operative complications as there was constant rise in the WBC count and the billirubin levels of the patient and there was clear indication of jaundice and infection. She also urged that such rise in the said levels clearly indicated bile leakage and the O.P. NO.1 simply preferred to continue keeping the sub-hepatic drain for draining of fluid which was accumulated in the pouch of Doughlas (POD) and G.B.fossa. Further pointing out from the medical records, she submitted that there was approximately 60 ml fluid even after draining though the medical literature reveals that a small collection of 10-15 ml is not unusual after G.B. surgery (and not beyond that). Pointing out the above features she indicated that there was bile leakage but the O.P.No.1 was negligent in not taking necessary steps for proper treatment of the patient. Criticising the conduct of the OP No.1 , Ld. Counsel for the complainant also submitted that the O.P.No.1 instead of taking positive step for E.R.C.P. , merely advised the patient stating in the Discharge Summary that the patient may require E.R.C.P. and asked him to wait for a doctor coming from Calcutta and thereby causing further delay in referring the patient for E.R.C.P. immediately which contributed to the serious condition of the patient, she added. To further her argument ld. Counsel for the complainant submitted that though the O.P.No.1 found every indication of sepsis, did not perform necessary tests for confirmation and subsequent treatment nor the patient was referred to an Oncologist even after the Histopathology report revealing Carcinoma of G.B.which led to untimely death of the patient . In course of her impressive argument Ld. Counsel for the complainant also urged that the O.P.No.2 (Dr. Bharat Vyas ) did not attend the patient when he was admitted under the said doctor for E.R.C.P. at Gujrati Relief Society, nor did he inform the complainant that the E.R.C.P. stenting was not possible in the said Hospital. Drawing our attention to the Haematology report dt 17.3.2010 , she urged that there was high W.B.C. count but O.P.No.2 was of opinion that the cause of death of the patient was ‘Cardiorespiratory’ failure in a case of Carcinoma in Gall Bladder’ which were inconsistent to each other –she added.

Ld. Counsel for the O.P.No.1 in course of his argument submitted that a medical practitioner would be held liable for medical negligence if it is established that the doctor treated the patient in a casual and negligent manner and caused sufferings of the patient. He further submitted that in the instant case the patient was suffering from pain in abdomen, USG was done which revealed stone in gall-bladder, cholesystectomy, being the standard treatment protocol, was done explaining the risk associated with it and taking proper consent, the surgery was uneventful but after the surgery , it was observed by the O.P.No.1 that there was some abnormality in growth in cells and as such the specimen was sent for biopsy. He with all fairness admitted that there were some post operative complications of the patient in the instant case, but the O.P. No.1 provided treatment to the patient as per well accepted norms after performing all necessary tests and undertook surgery to remove the stone in the Gall-bladder by removing the entire fall-bladder as per the standard practice. He also added that the patient could not survive due to incidental gall-bladder cancer for which the surgeon undertaking operation cannot be blamed for medical negligence or deficiency in service.

Ld. Counsel appearing for the OP NO.2 in course of argument submitted that as per advice of the O.P.No.1 and with a view to unearthing the problem of the patient E.R.C.P. of the patient was done by Dr. Pattanayak at Kothari Medical Centre. Denying the allegation of leaving the patient unattended and uncared, he urged that the rice tube was fitted by the attending Nurse under the supervision of the O.P. No.2 and the question of Criminal conspiracy against a helpless patient in the death bed could not and did not arise at all rather he drew our attention to the Death Certificate of the patient and tried to impress that due to cardio respiratory failure in case of Carcinoma in gallbladder the patient died on 18.3.2010 and neither of the OPs/Doctors’ could be blamed for his death in the name of medical negligence, - he urged.

The factual aspect of the matter are not seriously disputed by the parties. It is admitted that the patient Sukul Chandra Saha, since deceased, was examined by the O.P. No.1/Doctor, advised for several tests like USG to ascertain the casue of severe pain in abdomen , found the patient suffering from Acute Calculus Cholecystitis of the gallbladder, the patient was admitted for surgery under the O.P. no.1 after necessary tests and after finding the patient permissible for surgery. It is also not disputed that rather it is admitted that the OP No.1 performed surgery on 28.2.2010 . According to the OP No.1, the surgery was successful and the drain was put in subsequent-hepatic space. It is coming out from the averments as stated in the Petition of Complaint as well as from the B.N.A. filed on behalf of the complainant that due to fault of the OP No.1 in the post operative stage, the patient expired on 18.3.2010 and the Death Certificate of the patient (Annexure-C) revealed that the death of the patient was “Cardio-respiratory failure in a case of Carcinoma gall-bladder”. Ld. counsel appearing for the OP No.1 in course of argument submitted with reference to the evidence of one Dr.Sumit Sanyal, Asst. Professor , Surgical Gastroenterology, S.S.K.M.Hospital, Kolkata, that the said witness after evaluating all the treatment papers and documents expressed his opinion, on affidavit, that the treatment provided by the OP no.1 was as per “well accepted medical norms”. He also pointed out with reference to the statements of Dr. Sumit Sanyal that the O.P.No.1 performed necessary tests, had done surgery to remove the stone in the gall-bladder by removing the entire Gall bladder, as per the standard practice.

Ld. Counsel for the Complainant tried to impress drawing our attention to the report of the Pathological tests that the O.P.No.1 did not care for the condition of the patient did not refer him for E.R.C.P. at the appropriate stage and he was negligent in the matter of treatment of the patient waited for a couple of days & referred the patient ultimately to the O.P.No.2 for E.R.C.P. which could not be held ‘inappropriate’ in the instant case, but the fact remains that the allegation of the complainant , was not based on the opinions of medical experts.

We have considered the factual aspects of the case in the light of a catena decisions as referred to by ld. Counsel for the Opposite parties. Ld. Counsel for the O.P.No.2 relied on a decision of the Hon’ble National commission in Sikha Nayak Vs. Dr. Manabesh Pramanik, reported in 2006, C.T.J. 662 (C.P.) (NCDRC) where the Hon’ble National Commission held that a case of medical negligence has to be proved by proper medical expert’s evidence and it cannot be based on mere statements of a patient. This (WBSCDRC) in Dr. Dwijadas Som Vs. Krishna Hazra, reported in 2005 C.T.J. 921 (CP) (SCDRC), held that “simply because a patient succumbs to his ailments , it cannot be presumed that the doctor treating him is guilty of medical negligence”. It was further held in Dr. Dwijadas Som (supra) that “a Consumer Forum or Commission cannot assume the role of a medical expert without being so and it cannot adjudge the charges leveled by a patient that the method of treatment or medicines prescribed for him were wrong or faulty”.

A medical practitioner ordinarily tries his best to redeem the patient out of his/her sufferings and he does not gain anything by act with negl

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igence or by omitting it to act unless there is a specific allegation of negligence no action, Civil or Criminal, should be taken against any medical professional man. It was observed by the Hon’ble Apex Court in Jacob Mathew -Vs- State of Punjab reported in (2005) 6 SCC 1 that “a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end dose medicine to his patient”. We shall not be unmindful that “sometimes despite best efforts, the treatment of a Doctor fails or sometimes best efforts of a surgeon the patient dies. In these cases the Doctor or the surgeon should not be held guilty of medical negligence unless there is strong evidence to suggest that he is”. Hon’ble Apex Court in Jacob Mathew case (supra) also held that “negligence in the context of medical profession necessarily calls for a treatment with a difference”. It is surprising to note that in the instant case, the complainant did not make any attempt to refer the matter to the medical experts for establishing medical negligence as alleged , the reason best known to the complainant but in the absence of any definite opinion over the issue, we cannot reject the opinion of Dr. Sumit Sanyal, as noted earlier, simply because the said witness was a pocket witness or coming from the Medical Fraternity and having regard to the facts of the case and on the basis of the discussion in the earlier part of the judgement we firmly hold that the complainant failed to establish medical negligence against both the Opposite parties and therefore she does not deserve any relief in the instant Complaint Case. Hence, the Complaint Case stands dismissed. Parties do bear their respective costs.
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