HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 15 of the Consumer Protection Act, 1986 ( in short, ‘the Act’), arising out of the order dated 16.03.2018 passed by the Learned District Consumer Disputes Redressal Forum, Unit-I at Kolkata (in short, ‘the District Forum’, presently ‘the District Commission’) in connection with consumer case No. CC/55/2017.

2. By the impugned order, the District Commission dismissed the consumer complaint on contest against the opposite parties without costs.

3. Briefly stated the facts of the case as mentioned in the consumer complaint are that the complainant in the month of January, 2015 felt pain in her abdomen and went to Dr. Sabyasachi Sarkar, who after check up asked to the complainant for undergoing USG test. On perusal of the report Dr. opined that she had got a stone at her gall bladder. For removal of the same, she got admitted at the North Land Nursing Home i.e. the opposite party No. 2 Nursing Home for undergoing her operation. Said operation of gall bladder was conducted by the opposite party No. 1 Doctor from 4.30 p.m. to till 7.00 p.m. Before conducting the operation the complainant was informed that the operation shall be micro surgery and not open surgery. At the time of said operation, the opposite party No. 1 Doctor told that he had to opt for open surgery as a vein was seen and observed over the gall bladder of the complainant. No written consent was taken from the patient party for doing such open surgery while the complainant had paid the amount for micro surgery. The complainant after undergoing such operation has been at the said hospital for two more days and she was discharged on 03.05.2015. At the time of discharge the opposite party No. 1 Doctor assured that drain pipe shall be removed from the patient after 15 days. After returning home, the complainant’s condition deteriorated and the complainant noticed that due to leakage of drain pipe, the complainant felt very much uneasy and, as such, she contacted the opposite party No. 1 Doctor who asked her to visit the opposite party No. 2 Nursing Home on the next day / date. When the complainant reached there, the opposite party No. 1 Doctor stitched the said leakage. After returning home, the complainant again felt pain and informed the opposite party No. 1 who refused to give any opinion as he was in Delhi at that time. The complainant thereafter went to another Nursing Home and she was dressed by Dr. Gulgulia who advised the complainant to undergo MRCP test. After conducting the said test, it was found that there was a small whole in the duct and also injury in the carniac liver of the patient. Dr. Gulgulia advised the patient for undergoing another surgery after six months for her better treatment. The complainant in such manner suffered 2-3 months and subsequently, she was operated upon by Dr. Sumit Sanyal who removed the drain pipe and the complainant was discharged in a stable condition. The unsuccessful operation has ruined the complainant physically, mentally and financially for which she files this case praying for reliefs as mentioned in the petition of complaint.

4. The opposite party No. 1 Doctor entered appearance in this case and was contesting the case by filing written version denying and disputing the case of the complainant. The case of the opposite party No. 1 Doctor is that medical issues involved in this case are so complicated in nature and that without any evidence of medical experts of specialized field, it would not be possible for the Learned Forum to decide on the matter and further voluminous evidence has to be recorded. The patient, a young lady of 25 years Smt. Mitali Ghosh accompanied by her husband and another person attended his clinic on 30.01.2015 with history of episodes of epigastric pain and advised to undergo USG whole abdomen. USG whole abdomen revealed cholelithiasis and further investigation was suggested. After completion of investigation, the patient was found to be fit for surgery. The surgery was scheduled and the patient was admitted at the opposite party No. 2 Nursing Home on 28.04.2015 at 10.20 a.m. After preanesthetic check up consent for surgery was taken from the patient’s husband and the operation was scheduled on 28.04.2015 afternoon.

5. Further case of the opposite party No. 1 Doctor is that laparoscopic cholecystectomy was planned and accordingly 4 port were done. Gall bladder identified, Calot’s triangle dissected, cystic duct and artery clipped and divided in between clips. Gall bladder dissected out of liver bed and extracted out. After proper homeostasis of gall bladder bed of liver and proper washing of the field a minute bile leak was detected at porta hepatis. On repeated cleaning bile leak persisted. On detailed examination of gall bladder a specimen of small thin whitish thread like structure found to be arising from a hepatic surface of gall bladder which was suggestive of some anomalous duct draining into the gall bladder.

6. Further case of the opposite party No. 1 Doctor is that the patient party was informed and the decision to convert into open surgery was explained to the husband and other patient party. After getting verbal consent, the surgery was converted to open surgery immediately. On opening peritoneum, a pin head sized rent was detected at right duct of the confluence of common bile duct. After proper exposure 3 interrupted stitches were put with 4/0 vicryl to secure bile leakage. After satisfactory control of billiary leakage through peritoneal toileting was done and an abdominal drain was placed at hepatorenal pouch and abdomen closed in layers. The patient was put on nothing per mouth regime with intravenous, antibiotics and intravenous fluid.

7. Further case of the opposite party No. 1 Doctor is that the first post operative day was satisfactory but on the second post operative day approximately 800 ml. bile was collected in the drain over 24 hours. Otherwise, the patient was doing well, passed clear urine, stool colour was yellow and no yellowish tinge of sclera. Abdominal peristaltic sound was good and normal diet was allowed. The patient tolerated normal diet except slight nausea but no vomiting.

8. Further case of the opposite party No. 1 Doctor is that during the next couple of days the billiary drainage decreased and the patient was improving and, as such, the patient was discharged on 03.05.2015 in the morning with drain in situ and advised to attend his clinic as and when required.  The patient subsequently attended his chamber on 06.05.2015 evening again with complaint of weakness and nausea and he decided to admit the patient on that day. Intravenous antibiotics were started and the patient improved over next couple of days with decrease billiary drainage, improved appetite and normal passage of urine and stool. The patient herself insisted to go home and was discharged on 10.05.2015 morning.

9. Further case of the opposite party No. 1 Doctor is that after that the patient came to his chamber a few times, drain amount decreased over time and finally ceased to nil and when the drain was removed by the patient herself. Repeated liver function test (LFT) was prescribed and reports showed normal bilirubin level, but serum alkaline phosphatase level was slightly increased. His plan was to perform ERCP (Endoscopic retrograde cholangiopancreatography) and stenting but the patient party was reluctant to undergo simple blood test, like liver function test and on repeated advice the patient did not undergo these tests at regular intervals. On each visit he advised them that the patient may need a secondary surgery, but the husband of the patient said, the patient was doing well and ultimately, the patient lost in follow-up. The patient or the patient party was not in touch with the opposite party No. 1 Doctor after 3-4 months from the date of operation though follow-up was required to be taken. There was no deficiency in service on the part of the opposite party No. 1 Doctor and, accordingly, the opposite party No. 1 prayed for dismissal of the case.

10. The case of the opposite party No. 2 Nursing Home is that the said Nursing Home did not have any hand in treating the complainant. The opposite party No. 2 Nursing Home rendered all assistances to the patient during her stay in the Nursing Home for treatment. The decision of the opposite party No. 1 Doctor for open surgery instead of micro surgery was the exclusive domain of the opposite party No. 1 Doctor. Though Dr. Gulgulia conducted the NRCP test but he has not been made a party in this case as well as Dr. Sumit Sanyal. In absence of them, the case must fail due to non joinder of the necessary parties.

11. In view of the said fact, the opposite party No. 2 has prayed for dismissal of the complaint case.

12. The District Commission on an appreciation of the materials on record has dismissed the consumer complaint vide order dated 16.03.2018 in the above manner.

13. Being aggrieved by and dissatisfied with the said order, the complainant has filed this appeal.

14. We have heard the Learned Advocates appearing for the parties. We have also gone through the entire records of the District Forum and perused the materials placed on record.

15. Learned Counsel for the appellant has urged that at the time of operation, the complainant was advised that the complainant had to go for micro surgery, but later on, the opposite party No. 1 Doctor under the instance of the opposite party No. 2 has performed open surgery. The fact of open surgery operation was admitted by the opposite party No. 1 in their written version. He has further urged that the consent to undergo open surgery was taken is absolutely false and fabricated and it is denied by the complainant.

16. He has further urged that the opposite party No. 1 Doctor has got no document to prove that consent was given by the complainant or her family members to undergo open surgery. The petitioner has paid money for micro surgery but the opposite party had done open surgery. This amounts to unfair trade practice by the opposite parties.

17. He has further urged that the discharge summary certificate discloses a remark that MRCP shows injury at the carniac loss of segment. Therefore, due to the unskilled operation of the opposite party No. 1 Doctor, the complainant has incurred an injury showing carniac loss of segment. So, the opposite party No. 1 Doctor is very much liable for medical negligence in service and practice. So, the appeal should be allowed and, consequently, the complaint filed by the complainant should be allowed.

18. On the other hand, Learned Advocate appearing for the respondent No. 1 has urged that the complainant / appellant has not impleaded 5 point Nursing Home, Dr. Lala Tirthankar, Dr. Sumit Sanyal, R.N. Tagore Hospital as parties to that instant complaint case which renders this complaint case as non maintainable.

19. He has further urged that without any evidence of 5 point Nursing Home, Dr. Lala Tirthankar, Dr. Sumit Sanyal and R.N. Tagore Hospital, this case cannot be properly adjudicated. The appellant / complainant has failed to justify the allegations alleged in the complaint case.

20. He has further submitted that medical issues involved in that complaint case are so complicated in nature that without any evidence of medical experts of specialized field it would not be possible for the Learned Commission to decide on the matter.

21. He has further submitted that the complainant has filed the present complaint case only to malign the reputation of the opposite party No. 1 Doctor. As such, the same should be dismissed with costs.

22. Having heard the Learned Advocate appearing for both the parties and on perusal of the materials on record, it appears to us that it is an admitted position that the complainant was admitted in the opposite party No. 2 Nursing Home for micro surgery, but in place of doing micro surgery, open surgery was done by the opposite party No. 1 Doctor.

23. It is also an admitted position that the complainant has got a stone at her gall bladder. For removal of the same, she got admitted to the opposite party No. 2 Nursing Home for undergoing her operation.

24. It is also an admitted position that after operation, the complainant was discharged on 03.05.2015.

25. It is also an admitted position that while the complainant was discharged from the opposite party No. 2 Nursing Home, a drain pipe was inserted with the assurance that the same would be removed after 15 days. Within that period, the drain pipe got a leakage and the drain pipe was stitched by the opposite party No. 1 ..  ? Doctor.

26. It is also an admitted position that the complainant did not get relief from her pain while the husband contacted the opposite party No. 1 Doctor, the opposite party No. 1 Doctor informed that he was in Delhi and he cannot provide medical assistance to the complainant. On the basis of the said fact, the complainant consulted other Doctors including Dr. Gulgulia and Dr. Sumit Sanyal, who, later on, made operation and gave relief to the complainant.

27. Now, we shall have to consider as to whether there was negligence on the part of the opposite parties and whether there was deficiency in service on the part of the opposite parties.

28. On going through the written version filed by the opposite party No. 1 Dr. Sabyasachi Sarkar and his evidence on affidavit it appears to us that the patient Smt. Mitali Ghosh accompanied by her husband and another person attended before him on 30.01.2015 with history of episodes of epigastric pain and he advised to undergo USG whole abdomen. USG whole abdomen revealed cholelithiasis and further investigation was suggested. After completion of investigation, the patient was found to be fit for surgery. The surgery was scheduled and the patient was admitted at North Land Nursing Home on 28.04.2015 at 10.20 a.m. After pre anesthetic check up and consent for surgery was taken from the patient’s husband and the operation was scheduled on 28.04.2015 afternoon. It is also in evidence on record that the laparoscopic cholecystectomy was planned. Accordingly, 4 port was done, Gall bladder identified, Calot’s triangle dissected, cystic duct and artery clipped and divided in between clips. Gall bladder dissected out of liver bed and extracted out. After proper haemostasis of gall bladder bed of liver and proper washing of the field a minute bile leak was detected at porta hepatis. On repeated cleaning bile leak persisted. On detailed examination of gall bladder a specimen of small thin whitish thread like structure found to be arising from a hepatic surface of gall bladder which was suggestive of some anamolous duct draining into the gall bladder.

29. It is also in evidence on record that the patient party was informed and the decision to convert into open surgery was explained to the husband of the patient and other patient party. After getting verbal consent, the surgery was converted to open surgery immediately. On opening peritoneum, a pin head sized rent was detected at right duct of the confluence of common bile duct. After proper exposure 3 interrupted stitches were put with 4/0 vicryl to secure bile leakage. After satisfactory control of billiary leakage through peritoneal toileting was done and an abdominal drain was placed at hepatorenal pouch and abdomen closed in layers. The patient was put on nothing per mouth regime with intravenous, antibiotics and intravenous fluid.

30. It is also in evidence on record that the first post operative day was satisfactory but on the second post operative day approximately 800 ml. bile was collected in the drain over 24 hours. Otherwise, the patient was doing well, passed clear urine, stool colour was yellow and no yellowish tinge of sclera. Abdominal peristaltic sound was good and normal diet was allowed. The patient tolerated normal diet except slight nausea and no vomiting. The photocopies of the BHT and discharge summary certificate dated 02.05.2015 and 09.05.2015 of the patient also disclosed the same facts. There appears to be no contradiction in the evidence of Dr. Sabyasachi Sarkar.

31. Learned Lawyer appearing for the appellant has urged that prior to operation no consent form and informed consent were obtained from the patient by the opposite parties. So, the opposite parties are liable for medical negligence.

32. Upon hearing both parties and on perusal of the materials on record it appears to us that the patient must have sufficient information and undertaking before making decisions about her medical care. So, the consent should be obtained after providing all the necessary information. In this particular case, we find that on 28.04.2015 i.e. on the date of operation, the husband of the patient, Ramkrishna Ghosh executed one consent form and handed over to the North Land Nursing Home i.e. the opposite party No. 2 Nursing Home.

33. It is also found that on 10.05.2015, the husband of the patient namely Ramkrishna Ghosh also executed one consent form and on 06.05.2015, the husband of the patient namely Ramkrishna Ghosh also signed and submitted one informed consent and handed over to the North Land Nursing Home. Before making decisions about the medical treatment of the patient, the patient was duly informed about the medical care. So, the consent form and informed consent were obtained after providing all the necessary information. So, it cannot be said that the opposite party No. 1 Doctor was able to perform his duties, as such, he is not liable for medical negligence. Therefore, the submission as made by the Learned Advocate appearing for the appellant / complainant is not acceptable. Learned Lawyer appearing for the respondent No. 1 submits before this Commission that the medical issues involved in the complaint case are so complicated in nature that without any evidence of medical experts of specialized field, it would not be possible for this Commission to decide the matter. On going through the record we find that there is substance in the submission as made by the Learned Lawyer appearing for the respondent No. 1.

34. We are of the view that medical expert’s opinion is required when negligence in method of treatment is considered as the Commissions are not having technical expertise to assess the correctness of treatment either in respect of surgery or in respect of medicines / injections applied. The failure and negligence to perform micro surgery operation and operation by open surgery instead in the present case are of such special nature and, therefore, findings cannot be arrived in absence of expert’s opinion. In this case, the complainant has not filed any application for appointment of experts for their opinion. Therefore, it may be concluded that the complainant / appellant has failed to file evidence of medical experts in this case. The written version of the respondent No. 1 Dr. Sabyasachi Sarkar including his evidence discloses that prior to operation USG of whole abdomen of the patient was done after completion of investigation the patient was found to be fit for surgery and, accordingly, surgery was scheduled. It also appears to us that after operation on 06.05.2015, the patient came to the opposite party’s No. 1 clinic and he noticed proper care was not taken on behalf of the patient party at home. As a result, fixation of drain pipe got loose and on 06.05.2015 it was refixed. From the above evidence and case of the opposite party No. 1 it is found that the proper care of the patient was not taken by the patient party. As a result, the fixation of drain pipe got loose.

35. It is also proved that prior to operation, the opposite party No. 1 Dr. took proper care and protection for conducting the operation of the said patient.

36. It is well settled principle of law that a medical practitioner cannot be held responsible only on the ground that the patient has not received full recovery of his / her illness. In this connection, Hon’ble Apex Court in Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors. reported in 2010 CTJ 241 has observed that :-

“(i) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

(ii) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

(iii) The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

(iv) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

(v) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

(vi) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

(vii) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

(viii) It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

(ix) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

(x) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

(xi) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”

37. Keeping in view the facts and circumstances of the case and well settled principles enumerated above, we find that there is nothing on record on behalf of the appellant / complainant that there was any negligence on the part of the opposite parties while treating the complainant.

38. The Hon’ble Supreme Court in a case reported in 1 (2009) CPJ 32 (SC) in para no. 49 (MARTIN F. DSOUZA VS. MOHD. ISHFAQ ) has observed that :- “when a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.

39. In para No. 47 of MARTIN F. DSOUZAs case (Supra) it has been held that :-

“Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.”

40. The principle governing the liability of a medical professional had been noticed by the Hon’ble Supreme Court in case Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1, in which the test laid down in Bolam V. Friern Hospital Management Committee (1957) 1 WLR 582 have been approved. The relevant observations which have a   bearing for the decision of the instant case read as under :-

Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (decided by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: duty, breach and resulting damage.

(2) A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

41. Hon’ble Apex Court has further held in Jacob Mathew case : (SCC.24, Para 33)

​”33. Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (see Blacks Law Dictionary, 7^th Edn.). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence.

The crux of the findings recorded in the above cited cases is that a physician cannot assure the patient full recovery of the disease suffered by the patient and for proving the medical negligence against a treating doctor, very strong cogent and convincing evidence is required which is missing in this case. What was the best in the facts and circumstances of the case, the opposite parties have acted accordingly while treating the complainant and as such it cannot be a case of any kind of medical negligence or deficiency of service.”

42. Learned Counsel for the appellants in support of their allegation regarding negligence against the treating Doctor and the opposite party No. 2 Nursing Home has relied on the following judgments namely Dr. V.K. Gupta Vs. Krishan Kumar & Anr. reported in 2016(2) CPR 557 (NC) and Anil Dutta & Anr. Vs. Vishesh Hospital & Ors. reported in 2016(3) CPR 106 (NC). However, reliance on these two judgments in the adjudication of this appeal / complaint, facts being at variance, would be misplaced.

43. In view of the foregoing discussion we are of the view that the appellant / complainant has failed to prove her case of medical negligence and deficiency in service. As such, the impugned order under challenge is sustainable in the eye of law. For the reasons recorded above this appeal is dismissed.

44. The appeal is thus disposed of accordingly.