State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027


S.C. CASE NO-156/O/1996



DATE OF FILING : 3.4.96 DATE OF FINAL ORDER: 29.5.09



APPELLANTS/COMPLAINANTS :

1. Smt Swapna Sur.

Wife of Sri Kausik Sur,

Residing at 1/4B, Sachin Mitra Lane,

Calcutta- 700 009.



RESPONDENTS/O.P.S : :

1. Dr. Ashutosh Ganguly,

Father’s name not know to the petitioner “Sevalaya Nursing Home” 4, Abhoy Guha Road, Calcutta –700 006.



2. Sevalaya Nursing Home,

4, Abhoy Guha Road,

Calcutta –700 006



BEFORE :HONBLE JUSTICE Mr. A.Chakrabarti, PRESIDENT.

MEMBER : Sri. A.K. Ray.

MEMBER : Smt. Silpi Majumder.



FOR THE PETITIONER :Sri .A. Sharma, Advocate.

FOR THE O.P.S :Sri. P.K. Basu, Advocate.

Ms. S. Dutta, Advocate.

Sri. T. Chakrobarty, Advocate.

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Sri. A.K. Ray. Member


This is a complaint filed by the Petitioner Smt Swapna Sur, complaining against Dr. Ashutosh Ganguly a Gynecologist that he had negligently made a caesarian operation on her causing damage to her left urater and left kidney. The operation was performed on 30.12.92 at a nursing home named Sevalaya Nursing Home at 4, Abhoy Guha Road, Kolkata- 700 006.



2. The petitioner’s case is that she was a regular patient under OP No-1 Dr. Ashutosh Ganguly and on his advice she was admitted to Sevalaya Nursing Home for caesarian operation which was done on 30.12.92 and she gave birth to a male child. It has been alleged that since after the operation Petitioner was suffering from various ailments. She visited the nursing home for her clinical examination. She was advised by OP No –1 to get admitted again in the same nursing home to have a proper medical treatment. The OP-doctor advised her to have IVP and Cystogram. Accordingly, she got herself clinically examined and obtained a skiagram with reports. According to the said report there was something wrong in her left Kidney. Hydronephrosis was seen in the left Kidney and the lower left Urater could not be visualized up to 1 hour. Thereafter, Dr. Ganguly referred the Complainant to an eminent surgeon, namely, Dr. Bimalendu Mukherjee for having proper diagnosis and medical treatment. Dr. Mukherjee upon thorough investigation and clinical examination of the patient was of the opinion that the Petitioner had sustained injury at her left Urater during such caesarian operation done by OP NO –1 and had some leakage of Urine PV. Dr. Mukherjee further advised her to have USG of both the kidneys and also to have further Skiagram with report without compression which were done accordingly. From such examination it was revealed that in the left Kidney of the Petitioner there was no evidence of any excretion of the contrast medium up to 70 minutes. It was further evident from the said USG report dated 24.3.94 that while the right kidney was functioning more or less properly, there was a problem in the left Kidney and it was specifically mentioned in the report itself that the left Urater was not visualized. Under such circumstances she was advised to undergo another major operation. She was admitted to ST. Marry’s Nursing Home where another major operation was done on her. After such operation she was again advised to have a USG report and as per the report it appeared that her left kidney was smaller than the right kidney. The aforesaid reports along with the report of Dr. Bishnupada Majhi and Dr. Dipak Mukherjee , an eminent urologist, it was finally declared that the left kidney of the petitioner was not functioning on account of inefficient caesarian operation which led her to the filing of the instant complaint claiming substantial damages from Dr. Ganguly , OP No-1.



3. The Allegations made in the complaint were denied by Dr. Ganguly. The operation was done on the Petitioner on 30.12.92. The operation was successful when a quite normal child was born . There was no complaint whatsoever by the Petitioner after the said operation during her stay in the nursing home. She was discharged on 8.1.93. There was no factual foundation in the said petition concerning allegation of the Complainant during the period from 28.12.92 to 8.1.93. She totally suppressed the facts that from 28.1.93 to 6.3.94 where she had been treated during the said long period of more than 1 year. He has no nursing home as alleged. Sevalaya nursing home is a partnership firm and OP No-1 was not a partner of the said Sevalaya nursing home. On 15th January 1993 the Petitioner came to him and after examining her he advised admission in the aforesaid nursing home for doing some urgent check up and on 16.1.93 she took admission in the said nursing home where she was clinically examined under the care of OP No-1 doctor. A Skiagram report from Dr. Amalendu Roy was also obtained. She was released from the Sevalaya Nursing Home on 27th January, 1993. OP No-1 had taken due medical care of the Petitioner for the aforesaid period from 15.1.93 to 27.1.93. He however referred her to Dr. Bimalendu Mukherjee , now President of Urological Society of India , as there was some kidney problems found from the Skiagram report. He had taken due reasonable care to treat her but she did not contact him till 1.12.95 . The allegations that she had sustained injury at her left Urater causing some leakage of urine and also causing mild Hydronephrosis at her left kidney which in turn caused incontinence of urine was never complained of during her stay in the said nursing home. Dr. Bimalendu Mukherjee had performed another operation but no particulars had been given in the complaint about the date and time and nature of the operation. OP No-1 doctor came to learn from the Petitioner that she had been clinically examined and also operated by Dr. Bimalendu Mukherjee. As per the USG report her right kidney was bigger then the left kidney in bipolar length. It was not unusual that size of the two kidneys was different. Therefore, the subsequent report obtained by the Petitioner relating to her kidney problem had nothing to do with the performance of ceassarian section operation. The fact was, the OP doctor contended, that the Complainant had been treated with due care, attention and expartise and there was no carelessness or negligence on his part.



4. Smt Swapna Sur, Complainant, in her examination in chief stated amongst others that after the caesarian operation she was suffering from various ailments and infirmities particularly from various complicated problems arising out of her kidney. On advice from OP No –1 she took admission for the second time in the said nursing home for necessary clinical and medical check up . She had IVP and obtained a Skiagram report wherefrom it was evident that there was something wrong in her left kidney and it was detected that so far her kidney was concerned Hydronephrosis was seen in the left side and lower Urater ( left) could not be visualized even up to one hour during such tests. The OP-1 had committed a blunder and was negligent during caesarian operation and finding it to difficult to cope with the situation, he referred her to an eminent surgeon of the city namely Dr. Bimalendu Mukjerjee for having a proper diagnosis and medical treatment of the injury. The said specialist doctor Bimalendu Mukherjee diagnosed that during such ceassarian operation she had sustained serious injury of her left Urater resulting in incontinence of bladder causing leakage of urine which finally developed into Hydronephrosis of her left kidney. She had to undergo further medical treatment under an eminent surgeon Professor Bishnupada Majhi for having proper relief. She was advised to have intravenous urography (delayed) and accordingly, such clinical examination was done and it was evident from such report dated 3.1.96 that her right kidney was normal in size while the left one was becoming smaller in size gradually and it was further evident from that report that as per IVU her right kidney was seen normal and her right Urater was also normal but the left kidney was getting smaller in size.



5. In her cross examination on behalf of the OPs she replied against question no –7 that after the faulty operation by Dr. Ganguly thereby cutting her left Urater her problems had started and finally she was referred to Dr. B. Mukherjee who detected such blunder. In her answer to question no- 11 she said that she had to undergo major operation which was the out come of the purported injury caused by Dr. Ganguly. Dr. B. Mukherjee diagnosed and confirmed this in his prescription dated 7.3.94.



6. In his evidence on affidavit Dr. Ashutosh Ganguly OP No- 1 stated inter alia that the patient (complainant) was admitted at Sevalaya nursing home on 28.12.92 and he performed the ceasssarian section operation on 30.12.92 . A male child was born and she was discharged on 8.1.93. She visited him for checkup on 15.1.93 and on his advice she again took admission in the said nursing home for further clinical examination by him. One Skiagram report was obtained. She was discharged on 27.1.93 with advice to contact Dr. B. Mukherjee an eminent Urologist for his expert opinion and treatment. Dr. Mukherjee on clinical examination without any conclusive proof made an opinion. In their brief of written argument both the Complainant and the OPs mostly relied on their earlier submission. The Complainant filed a petition for incorporation of paragraph –16 (a) by way of amendment which was categorically refuted by OP NO –1 in his additional written version filed before us on 24.11.08.



7. We have heard the parties to this case at length and have gone through their written submissions. OP NO- 2 practically did not appear before us to contest this case. OP No-1 contested the case on behalf of both the parties as would be evident from the written submissions filed by him on behalf of the OPs.

8. The moot question before us is to decide if the ceassarian operation conducted by OP No –1 had actually caused the injury by cutting her left Urater. Admittedly Dr. Ganguly, OP-1 had advised and treated the Complainant during her pre & post delivery period of her second child. Dr. Ganguly conducted the ceassarian operation on 30.12.92. After her discharge she came back to him again on 15.1.93 for further checkup and examinations. She was under his treatment till 27.1.93 during which period a Skiagram report was obtained containing IVU and Cystogram examination. As per the said report Hydronephrosis was seen in the left side and her left lower Urater could not be visualized up to one hour. Obviously, the Skiagram report was a speaking one and Dr. Ganguly was prudent enough to refer her to an eminent surgeon of urology, Dr. B. Mukherjee and not to any general physician or Gynecologist because from such Sikagram report he had come to know that the damage as manifest in the aforesaid Sikagram report could be better handled by the said Dr. Mukherjee. Dr. Mukherjee being an experienced surgeon on medical examination of the patient immediately detected that during such caesarian operation injury had been caused to the left Urater of the Petitioner and he clearly mentioned mild Hydronephrosis in left kidney of the Petitioner and recorded his finding on his prescription dated 7.3.94. Her ordeal started therefrom and to repair such injury Dr. Mukherjee suggested another operation, but prior to undergoing such operation , she was advised to have USG which was done on 15.3.94. It was found from the USG report that both the kidneys of the Petitioner were clearly in position but the measurement of the right kidney was 10 cm when the left kidney was 9 cm in bipolar length. Her left Urater was not visible in the Skiagram report and as such the argument of OP –1 that Dr. Mukerhjee without any conclusive proof and clinical examination made opinion about injury to the left Urater which was completely unfounded, baseless and untrue. All the aforesaid documentary evidences like clinical and medical reports etc go to show that the Petitioner had no problem whatsoever in her kidney at the time of pre-delivery period and treatment of Dr. A. Ganguly, OP No-1 at the place of OP-2, Sevalaya nursing home. We are therefore inclined to hold that Dr. Ganguly committed an unpardonable blunder of causing injury to the left Urater of the Petitioner at the time of delivery of her second child and because of his sheer negligence, carelessness other resultant complications started with the Petitioner and her left kidney got nonfunctional. She had to experience severe pain and trauma and had to spend a lot of money towards repair of her left kidney. She could not however, save this kidney.



9. Hence in the above facts and circumstances, we have no reason to disbelieve the story of the Complainant and her agony caused by OP No –1 doctor. The complaint therefore succeeds but in part as we do not find any specific allegations against OP No –2 nursing home. We accordingly, exonerate this OP No – 2 nursing home from the purview of this complaint case. As the complaint succeeds against OP No –1, he is directed to pay compensation of Rs. 1.50 lakh (Rs. One lakh and fifty thousand) along with a litigation cost of Rs. 3,000/- to the Complainant within 40 days from the date of communication of this order failing which interest @ 10 % p.a, would accrue on the aforesaid amounts till payment.





Member Member President