In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/190/2016.

Date of filing: 25/11/2016.                     Date of Final Order: 02/08/2024.

Sri Binod Kumar Deb,

Son of Later Jogesh Chandra Deb,

Residing at Gitanjali Apartment, Flat no. S/303,

2/A, S.C. Chatterjee Sarani, (Bahir Serampore),

P.O. Mallickpara, P.S. Serampore,

PIN. 712203, Dist. Hooghly (WB).                                            …..complainant

   vs  -

1. Dr. Milan Krishna Roy, M.S. (Cal),

Of Serampore Surgical Nursing home (P) LTD.,

8A, K.M. SHA Street, P.O. & P.S. Serampore,

PIN. 712201, Dist. Hooghly (WB).

2. Dr. Robin Mondal, M.S. (Cal),

Associate Professor, Department of Surgery, WBMES,

Of Serampore Surgical Nursing home (P) LTD.,

8A, K.M. SHA Street, P.O. & P.S. Serampore,

PIN. 712201, Dist. Hooghly (WB).

3. Dr. Alokparna Ghosh,

Of Serampore Surgical Nursing home (P) LTD.,

8A, K.M. SHA Street, P.O. & P.S. Serampore,

PIN. 712201, Dist. Hooghly (WB).

4. Serampore Surgical Nursing home (P) LTD.,

8A, K.M. SHA Street, P.O. & P.S. Serampore,

PIN. 712201, Dist. Hooghly (WB).…..opposite parties

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

 Brief facts of the case: This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that on 24.2.2016 the complainant undergone for his Colonoscopy Test and after the said test, he got the report of the said test in which it was mentioned in the impression that ‘Annal Fissure’ was seen in the rectum and after getting the report, the complainant meet with Opposite Party no. 1 at his chamber at Serampore Surgical Nurshing Home (P) Ltd. 8A, K.M. Sha Street, Post & P.S. – Serampore, Dist- Hooghly, PIN-712 201 on 04/03/2016 and after going through the colonoscopy report, Opposite Party No. 1 suggested the complainant a mere operation of ‘Annal Fissure’ for which the complainant needs to be admitted in the Serampore Surgical Nurshing Home (P) Ltd for 4 days and the said operation would cost around Rs.20,000/- to 21,000/- and Opposite Party No. 1 also assured the complainant that he himself would conduct the operation.

            The complainant also stated that he was admitted at Serampore Surgical Nurshing Home (P) Ltd for the said operation on 07/03/2016 at about 10.00 a.m. and after paying all medical expenses, subsequently at around 4.00 pm. Two juniors doctors (namely Dr. Robin Mondal and another name not known) came and represented themselves as Junior Doctors of Dr. Milan Krishna Roy they replied that they would conduct the operation as Opposite Party No. 1 was not presently available in the above said Nursing Home and after that anesthesia was done by Dr. Alokparna Ghosh on the complainant and those two junior doctors operated the complainant.

            The complainant also stated that though assurance of conducting operation was given by Opposite Party No. 1 but he was not available at the time of operation of the complainant and those two Juniors Doctors (namely Dr. Robin Mondal and another name not known) negligently operated “Fistulectomy” instead of “Anal Fissure” as it appeared in the Discharge Certificate.

            The complainant also stated that after gaining senses the complainant was feeling severe fever and pain and after a day of the said operation the complainant started to feel unbearable pain from neck to anal cavity but Opposite Party No. 1 assured the complainant that pain would be gone away in few days.  Thereafter Opposite Party no. 1 pushed an injection on the complainant and on 10/03/2016 at about 3.00 p.m. the complainant was released from the Nursing Home.

            The complainant also stated that on 11/03/2016 to 14/03/2016 complainant was feeling severe pain and fever, subsequently the complainant made phone call to the Opposite Party No. 1 but every time he aborted the calls and on 15/03/2016 in the morning the complainant went for latrine and at that time he noticed that a 2.5 inches Surgical Tapes came out with the released stool and after that the Complainant’s physical condition was deteriorating and seeing no further sign of recovery and finally the family members of the Complainant  met with Opposite Party No. 1 again and he suggested some tests of W.B.C., T.C.D. and Creatinine, when report came it was found that WBC-22,000 and Creatinine Count 2.65 and after going through the reports the Opposite Party No. 1 suggested further admission in the above said Nursing Home but going through the Blood Test Report the Complainant and his family members decided to consult this matter with Dr. Sagar Sadhu of N.H. Rabindranath Tagore, International Institute of Cardiac Sciences Hospital at Kolkata .

            The Complainant also stated that on 22/03/2016 at around 4.00 p.m. Dr. Sagar Sadhu and other surgeons of N.H. Rabindranath Tagore, International Institute of Cardiac Sciences Hospital at Kolkata physically checked and examined the Complainant and advised for some medical test. Accordingly the complainant did all the tests referred by Dr. Sagar Sadhu on 22/03/2016, 25/03/2016, 26/03/2016 and 27/03/2016 and the result showed that Complainant was in great danger as the result of Creatinine was raised above the optimum mark beside this complainant’s anal cavity was ruptured drastically.

            The Complainant also stated that after going through the above test report and result of the test of the Complainant, Dr. Sagar Sadhu physically checked up the Rectum of the Complainant and Dr. Sagar Sadhu noticed and told the Complainant that rectum hole got much injury as a result of said injury two fingers were entering into Complainant’s rectum without any resistance and Dr. Sadhu further stated the Complainant that through this channel, the stool has entered and jammed the said area of the rectum and as a result the Complainant’s two kidneys became affected, then on 22/03/2016 Dr. Sagar Sadhu made phone call to Opposite Party No. 1regarding the operation and Opposite Party No. 1 stated that he was not present but his two Juniors has done the operation after  consulting him.

            The Complainant also stated that finally on 23/03/2016 Dr. Sagar Sadhu and other Surgeons of N.H. Rabindranath Tagore, International Institute of Cardiac Sciences Hospital at Kolkata conducted incision and drainage of gluteal abscess operation was done on the Complainant and on 28/03/2016 the Complainant was discharged from the said hospital with a note of temporary loops colostomy with repair of rectal rent/ fistula on his clinical Discharge Summary. From the above said impression made by the doctors of N.H. Rabindranath Tagore, International Institute of Cardiac Sciences Hospital at Kolkata it is very much clear and evident that the complainant has been still suffering from damage of his rectum hole which is not at all repairable due to this negligence operation done by the opposite parties.

            Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 3,50,000/- as cost of operation at Serampore Surgical Nursing home (P) Ltd. and N.H.R.N. (Tagore) and to pay a sum of Rs. 2,00,000/- for all the tests and to pay a sum of Rs. 1,50,000/- for mental agony and to pay a sum of Rs. 1,50,000/- for subsisting medical expenses and to pay a sum of Rs. 10,000/- as litigation cost.

Defense Case:- The opposite party Nos. 1 to 4 contested the case by filing separate written versions denying inter-alia all the material allegation as leveled against them.

Opposite party no. 1 stated that the complainant a 71 years patient consulted me on 04/03/2016 for the first time with the complaint of past history of his perianal pain. Prior to meet me he undergone some tests, namely routine blood   sugar, urea, creatinine, serology, LFT, TSH, urine examination, ECG, X-ray chest, echocardiography, digital rectal examination and proctoscopy, the report of which indicated ‘one fibrous tract  - nodule at 7 O’ clock position.

            After clinically examining the patient and perusing all those test Reports, op no. 1 advised surgery. At the same time I had duly explained the pros and cons of the surgery and its associated risks. The patient having understood the procedure, agreed for the surgery under me.

            The patient was thereafter admitted on 07/03/2016 at the Nursing Home at ‘Serampore Surgical Nursing Home (P) Ltd’, wherein op no. 1 am attached to personally as a Senior Surgeon.  Then the present OPPOSITE Party No. 3, Dr. Alokparna Ghosh, an experienced Anesthetist attached to this Nursing Home, duly conducted pre-anesthetic check up and found the patient to be fit for the surgery.  Necessary antibiotic cover by Ceftriaxone was also provided.  As standard protocol, the patient was prepared for surgery. Proctoscopy examination under saddle block, revealed “Fistula in Ano” at 7 o’ clock position. i.e. at the site where fibrous tract was detected in per rectal examination.  The Fistulectomy was done by the present Opposite Party No. 2 Dr. Robin Mondal an M.S. (CAL) Associate Professor, Department of Surgery, WBMES, in my presence at the O.T.

            The surgery was uneventful and approach for surgery was made from perianal region and it was done successfully.  The wound was lightly dressed which was removed on the next day during dressing by me. Daily dressing was performed until the day of discharge on 10/03/2016 with advice to take sitz bath and perform regular dressing under supervision of the trained nursing staff.  The patient was also advised to take few medicines, like Tablet Loxof AZ, Cermaffin, Tab Pan L, Tab Pyregesic and Hydrohealk ointment, which was duly mentioned in the Discharge Certificate and he was further advised to attend OPD after 10 days or as and when required, but the patient did not follow the same.

            On 22/03/2016, that is after 12 days of his discharge some family members of the patient reported about the patient having pain and fever. Op no. 1 advised them to bring the patient immediately but they did not follow my advice even then.

            A fissure (both acute and chronic) is a painful condition in which diagnosis is purely clinical, i.e. by clinical examination and not by Colonoscopy which is discouraged if not contraindicated. It is a painful condition and how Colonoscopy can be done properly in a patient having Anal Fissure (painful spasm of sphineter) is not clear (May be under sedation).  It is, therefore, very doubtful that a colonoscopy was at all carried out with a correct diagnosis of a fissure which should have caused exquisite pain to the patient. Probably deep sedation was used during the colonoscopy.

            Rather, the most confirmatory test to diagnose anal fissure is EUA (EXAMINATION UNDER ANAESTHESIA).  Moreover it is located in the middle posteriorly (90%) (Referred: Bailey and Love short practice of surgery, 24^th Edition page 1252 and 1253) i.e. at 6 o’clock position and further it is uncommon in the elderly because of muscular atony (reference as above)

            Hence Nodule with a cord-like structure at 7 o’clock position, as has been found in this patient, is the blind end of the fistulous tract, finally diagnosed as fistula in ano.  The whole fistula tract was excised and sent for histopathological examination (biopsy). Diagnostic Centre - Ref: DY/21/16 reportdated30/03/2016 also suggested fistula with chronic inflammation leaving no doubt that patient had “Fistula ano”.

`           Apart from that when Dr. Robin Mondal (The Opposite Party No. 2) and op no. 1 examined the patient under saddle block anesthesia in the OT. A nodule with a cork like structure at 7O’clock position as found in this patient, which was the blind external opening of the fistulous tract.  So the diagnosis finallywas fistula in ano.

The Postoperative MRI on 25/05/2016 also shown a low variety trans sphinteric Fistula in ano with abscess, which is a known complication of “Fistulectomy” and abscess drainage which may require further treatment.  Fistula is ano is not an incapacitating condition.

            Finally, it was beyond doubt that the complainant suffered from “Fistula in ano” and not an ÄNAL Fissure.  Accordingly there was no question of operation of any “Anal Fissure”, but the “Fistula” which has been rightly done in the instant case.

            The Opposite Party no. 1 also stated that one of the complications of “Fistulectomy” is infection, which is compounded by inadequate or improper post-operative local dressing.  If proper dressing would be done regularly by a competent trained Nurse or Dressed, then chances of post-operative infection is minimum. Op no. 1 repeat again, that the post-operative dressing is a very vital measure in peri-anal surgery.  The patient was, therefore, advised to attend OPD after 10 days or when required, but the patient utterly ignored it.  This is further evident from his follow-up consultation with Dr. Sadhu has remarked that the patient is lost to post-operative follow-up, that is, very irregular follow-up. It is absolutely not clear as to how much meticulously it was done in the post discharge period and whether it was at all done by any trained personnel?

            The Opposite Party no. 1 also stated that subsequent complication, which has been complained of without supplying with any paper in support of the same, would have been due to the fact that the patient did not attend personally to me for the required follow-up, as was advised in the Discharge Certificate and in all likelihood, he did not undertake the proper dressing at all under a trained dresser, as was advised by him. So this opposite party prayed to dismiss the case.

            Opposite party no. 2 stated that the complainant has no right or cause of action to file the instant case. The instant complaint case is not maintainable in law, in its present form and in view of the facts of the present case. The instant petition of complaint is frivolous, vexatious, misconceived, harrassive, malafide and speculative one.  There is no negligence or deficiency in service in rendering medical treatment towards the patient, the present Complainant, as has been complained of.

            Opposite party no. 2 stated that the complainant actually went to Dr. Milan Krishna Roy, an eminent senior practicing and vast experienced Surgeon, with the complaint of his past history of Peri anal pain and claimed that he has been suffering from Anal Fissure, which had been diagnosed by a Colonoscopy at ILS Hospitals, Dr. Roy has, therefore, asked him to g et admitted at Serampore Surgical Nursing Home (P) Ltd. for his operation subject to undergoing with pre-operative measures like pre-anesthetic check up and other associated tests. At this juncture Dr. Roy requested op no. 2 to help him in the operation. Now, it may submit here that a Fissure (both acute and chronic) is a painful condition in whose diagnosis is purely clinical, i.e., by clinical examination and not by Colonoscopy with is discouraged if not contraindicated.  It is very doubtful that a colonoscopy was at all carried out with a correct diagnosis of a fissure which should have caused exquisite pain to the patient.  Probably deep sedation was used during the colonoscopy.

            Rather, the most confirmatory test to diagnose “Anal Fissure” in EUA (examination under anesthesia).  Moreover it is located in the midline posteriorly (90%) (Referred: “Bailey and Love Short Practice of Surgery”, 24^th Edition page 1252 and 1253) i.e. at 6 O ‘clock position and further it is uncommon in the elderly because of muscular atony (reference as above).

            When Dr. Ray and op no. 2 examined the patient under saddle block anesthesia in the OT, a nodule with a cord-like structure at 7 O’clock position as found in this patient, which was the blind external opening of the fistulous tract.  So the diagnosis finally was fistula in ano.

            The whole fistula tract was excised and sent for histopathological examination (biopsy).  Biopsy report (Dynamic Diagnostic Centre- Ref: VDY/21/16 report dated 30/03/2016 also suggested fistula with chronic inflammation leaving no doubt that patient had “Fistula in ano”.  So it is beyond doubt that he suffered from “Fistula in ano” and not an ANAL Fissure”. Accordingly, there was no question of operation any “Anal Fissure’, but the “Fistula” which has been rightly done in the instant case.

            Now in coming to the question of any Post operative pain and fever, as per the Patient’s complaint, op no. 2 submitted that one of the complications of “Fistulectomy” is infection / abscess which is compounded by inadequate or improper post-operative local dressing. If proper dressing would have been done regularly by a competent person, then chances of post-operative infection is minimum.

            So far as regards the alleged retention of surgical tape or gauze, would not have been possibly retained with proper dressing. It is quite evident that the patient did not undergo regular dressing by a trained person. On discharge patient was advised to attend OPD after 10 days or as and when required which he utterly ignored.

            This is further evident from his follow-up consultation with Dr Sagar Sadhu on 24/05/2016 where Dr. Sadhu has remarked that the patient is lost to post-operative follow-up i.e. very irregular follow-up.  From the above it is evident from the above fact that the patient has a tendency to disregard medical advice and ct in a whimsical manner.

            Next, he patient complains of a creatinine count of 2.65 (However, No documents provided alongwith support his claim).  Maximum creatinine level was 1.85 on the day of surgery at R.N. Tagore Hospital on 23/03/2016 which came down to 1.34 (normal level) on 26/03/2016.  Blood count and creatinine rise was due to sepsis from post-operative peri-anal infection compounded with benign prostatic enlargement (USG report at RN Tagore Hosp-25/03/2016, suggests Prostate Enlargement and Significant post void Residual Urine Volume). WBC count and creatinine level came down to normal after abscess was drained.

            Further providing that infection was the cause of rise in creatinine levels. The patient was discharged from RNT Hospital with a note of temporary loops colostomy with repair of rectal rent/fistula. So far regards the operation at R.N. Tagore Hospital, it was only incision and drainage of gluteus abscess.  Temporary loop colostomy6 was only paneled if required, but never performed.  It is evident in the discharge summary.

            Post-operative MRI on 25/05/2016 a low variety trans-spinteric fistula in ano with abscess which is a known complication of fistulectomy and abscess drainage and may require further treatment.  “Fistula in ano” usually is not an incapacitating condition, let alone cause of death or permanent disability. Its treatment can be prolonged with recurrences even after multiple surgeries.  So this opposite party prayed to dismiss the case.

            Opposite party no. 3 stated that he had examined the patient for ascertaining his fitness for the operation and the patient’s physical condition was found normal and his examination reports were within normal limit and thus he was fit for anesthesia and therefore he was operated on 7.3.2016 at Serampore Surgical Nursing home (P) Ltd. Fistulectomy was done under saddle block under 1.5 ml of heavy sensorcaine at Lr L5 level with 25G spinal needle and the patient remained seated for around 7-8 mins and his preoperative condition was stable. The report of physical condition of the patient was described indetails in the written version of the opposite party no. 3. Therefore the patient was removed to ward with the instructions of post operative advice as was given by the RMO. So, the instant case is lodged by the complainant against the opposite party no. 3 unnecessarily without having any sort of negligence on the part of the opposite party no. 3. So, the instant case should be dismissed against the opposite party no. 3.

            Opposite party no. 4 stated that there were no specific allegations towards the opposite party no. 4 to the effect that either the bed or the other equipments provided to the complainant by opposite party no. 4, nursing home was faulty or the same caused any inconvenience to the complainant or the services rendered on the part of any of the nurses or any other attending staff, attached to this institution has ever resulted in any negligence or deficiency on their part and the complainant never claimed any relief against the opposite party no. 4. So, the instant case should be dismissed against the opposite party no. 4.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The O.P. Nos. 1, 2, 3 and 4 have filed separate petition for treating their written version as their evidence on affidavit.

Argument highlighted by the ld. Lawyers of the parties

Complainant have filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant shall have to be taken into consideration for disposal of the instant proceeding.

            Heard argument of both sides at length. In course of argument ld. Lawyers of both sides have given emphasis on evidence and documents produced by the parties.

From the discussion hereinabove, we find the following issues/points for consideration.

DECISIONS WITH REASONS

The first three issues/points of considerations which have been framed on the ground of maintainability and / or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are vital issues and so these points of considerations are clubbed together and taken up for discussion jointly at first. 

Regarding these three points of considerations it is very important to note that the OPs even after appearance in this case and after filing written version have not filed any petition on the ground of maintainability of this case due to the reason best known to them.  Under this position this District Commission has passed the order of further proceeding of this case.  On this background it is also mentionworthy that the OPs also have challenged this above noted points in their written versions.  So this District Commission finds it just and proper to decide the maintainability issues at first.  This District Commission after going through the material of this case record finds that the complainant in his complaint petition has stated that he was finally medically treated by Dr. Sagar Sadhu (Surgeon) of N.H. Rabindranath Tagore, International Institute of Cardiac Sciences Hospital at Kolkata.  But fact remains that the complainant has not taken any steps to implead Dr. Sagar Sadhu (Surgeon) of N.H. Rabindranath Tagore, International Institute of Cardiac Sciences Hospital at Kolkata as parties of this case.  Even Dr. Sagar Sadhu (Surgeon) of N.H. Rabindranath Tagore, International Institute of Cardiac Sciences Hospital at Kolkata have not been impleaded Proforma OPs of this case and so it is crystal clear that this case is bad for non-joinder of parties.  Thus it is crystal clear that this case is not maintainable in its present form and in the eye of law.  Moreover, in this case the complainant side has not agitated any claim against OP-3 Dr. Alok Parna Ghosh and against OP-4 Serampore Surgical Nursing home (P) Limited.  So this case is not maintainable against OP-3 & 4.

It is the settled principle of law that term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in follow up care, at any point of time by treating doctors or anyone else it is always open to be considered by the Commission.  This legal principle has been observed by Hon’ble Apex Court in the case of Chandra Rani Akhori and others Vs. M.A Methusethupathi (Doctor and others) and it is reported in II(2002)CPJ 51(SC).  In this instant case the complainant side has failed to establish by way of producing satisfactory evidence that there was pre or post-operative or in the follow up care there was negligence on the part of treating Doctors or anyone else.   In this regard it is very important to note that the OP-1&2 in the discharge certificate clearly advised the complainant to come to the OP-4 Nursing Home on any problem and also advised for dressing regularly by trained person but complainant has failed to show that he followed the advice of OP-1&2.  This matter is clearly indicating that there is no negligence on the part of the OP-1&2.  This is further evident from complainant’s follow-up consultation with Dr. Sagar Sadhu on 24.5.2016 where Dr. Sadhu has remarked that the patient is lost to post operative follow up i.e. very irregular follow up.  From the above it is evident that the patient has a tendency to disregard medical advice and act in a whimsical manner.  All these factors are clearly reflecting that the complainant has failed to show that this case is maintainable in its present form and in the eye of law and the complainant has his cause of action for filing this case.  Thus it is crystal clear that this case is not maintainable and the complainant has no cause of action to file this case.  Thus the above noted three points of considerations are decided against the complainant.

The points of consideration No.4 is related with the question as to whether there is any deficiency of service on the part of the OPs or not and the points of consideration no.5 is connected with the question as to whether the complainant is entitled to get any other relief in this case or not.  The questions and / or issues involved in these two points of considerations are interlinked and / or inter-connected with each other and for that reason and also for the convenience of discussion these two points of considerations are clubbed together and taken up for discussion jointly. 

For the purpose of arriving at just and proper decision and also for the interest of proper and complete adjudication of this case there is urgent necessity of making scrutiny of the material of this case record.  After going through the material of this case record, this District Commission finds that the complainant reported the incident to the West Bengal Medical Council who conducted enquiry and after conducting enquiry the Medical Council finds that there is no error on the part of the Ops.

Moreover, in this case expert opinion has been filed by the local hospital authority wherefrom it is revealed that there is no fault or negligence or deficiency of service on the part of the OPs.  In this regard it is settled principle of law when there is no medical evidence to prove in respect of any specific kind of negligence on the part of the doctor except raising issue of non-giving of express consent, there is no other alternative but to discharge the OPs doctors from the allegations of the complainant of negligence and deficiency of service.  Failure of complainant to prove ailments allegedly suffered by the complainant after discharging from the hospital were due to faulty surgery performed by the doctor, the Doctors cannot be held liable for payment of any compensation.  This legal principle has been observed by Hon’ble Apex Court in the case of Dr. S.K. Jhunjhunwala Vs. Mrs. Dhanwanti Kumar and another and it is reported in AIR 2018 Supreme Court 4625.  Thus it is crystal clear that there is no fault, negligence and deficiency of service on the part of the OP-1&2.  It has already been observed by this District Commission that the complainant has no allegation against OP-3&4.

A cumulative consideration of the above noted discussion goes to show that the complainant has failed to establish his case of medical negligence and deficiency of service against all the Ops and so this District Commission has no other alternative but to dismiss this case on contest.

In the result, it is accordingly,

                                                                                    Ordered

That this complaint case be and the same is dismissed on contest.

No order is passed as to cost.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.