Ld Advocates are present. Judgement is ready, it is pronounced in open Commission in 12 pages 6 separate sheet of papers.
BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case is that the Complainant is a permanent resident of the above noted address and citizen of India by birth, who has become the victim of gross medical negligence and deficiency in service by the Ops. In the beginning part of 2017, the Complainant got started suffering from some nasal problems, pain and erosion for which he consulted an ENT Doctor namely Dr. B.C. Hazra, MBBS, DEO (Cal) FAIMS(Ind), at Tamluk who after examining the Complainant, advised for a “CT Scan of Para Nasal Sinuses, Nasopharynx, Nose & Oropharynx (Plain & Contrast). The Complainant got done the said CT scan readily and the impression of the said CT Scan Report revealed inter alia as follows: “Small polyppoidal soft tissue mass (Nature) in posterior part of hard palate on right side”. (Annexure A). After perusing the CT Scan Report, the said Dr. B.C. Hazra opined that the Complainant was suffering from Palatal Tumor. The OP No.1 is a reputed consultant ENT Head Neck Surgeon who proposed to have a huge degree, qualification and experience though his signboard and have private chambers both at Mahishadal i.e. near the house of the Complainant and at Tamluk. Hoping for a better treatment, the Complainant firstly visited the chamber of OP No.1 at Tamluk on 25.04.2017, when the OP No.1 opined for an instant surgery and made arrangement at OP No. 2’s Nursing Home by his own volition and got admitted the Complainant there on the same day. The Complainant got operated at OP No.2’s Nursing Home on 25.04.2017 by OP No.1 and got released from there on 26.04.2017 with open nose palates, after depositing Rs. 30,000/- as the Doctor’s fees and cost of Operation (Package System), however, without any bill (Discharge Certificate Annexure B) the OP No.1 also opted for a Histopathological Report of the Palatal Growth to be done at his recommended Laboratory and the report revealed “Pleomorphic Salivary Adenoma “ (Annexure C). However, the Complainant found no relief in his affected nose palate rather the palate became open and his whole mount got infected swallowed hugely and the Complainant could not take any solid food till date. The OP No.1 still continued his further follow up treatment of the Complainant at his private chambers both at Mahishadal and Tamluk on 07.05.2017, 28.05.2017, 04.06.2017, 14.06.2017, 11.07.2017, 30.07.2017, 08.10.2017, 22.10.2017, 29.10.2017, 28.11.2017 and on each visit the OP NO.1 received his visiting fees (Annexure D series). Meanwhile, he performed two further operations to repair all his damage done upon the affected and open nose of the Complainant on 26.10.2017 (released on 27.10.2017) and on 30.10.2017 (released on 02.11.32017) both at the Nursing Home of OP No.3 at a most unhygienic ways and by realizing a package of Rs. 30,000/- on each occasions, thus in the Ops jointly realized (Rs 30,000/- X 3) = 90,000/- from the Complainant apart from the separate visiting fees and cost of medicines and pathological tests, (Discharge Certificates of OP No.3 Annexure E & F). Thereafter, as there was no relief, rather the physical and mental condition of the Complainant got worsen day by day, and he lost his normal speaking voice and became completely unable to take any solid food, he lost all his hope and faith upon the Ops and went to Dr. Chanchal Khatua having Chamber at Dhanwantori Pharmacy at Padumbasan, Tamluk on 07.11.2017 onwards (Annexure G) and thereafter at the “All India Institute of Medical Science, Bhubaneswar” at Patrapada, Bhubaneswar, Odisha on 06.01.2018, where he was diagnosed to have developed Palatal Fistula along with all his previous diseases as it was (Annexure H series). The Complainant also visited the “Kalinga Hospital Limited” in Bhubaneswar, Odisha (Annexure 1 series) and C K Birla Hospitals CMRI in Kolkata 07.2018 and a prolonged treatment for the repair of debris and destruction created by this Op NO.1 has been planned. Till date, for the wrong treatment and operation by the Op No.1, in connivance with OP No.2 & 3 , a total of over 6,00,000/- has already been spent by the Complainant, and still he is subjected to prolonged treatment, with utmost hope a belief that one day he may be fully cured. Had the Ops been careful and cautious, and had they followed the basic guidelines and medical norms, and had the Ops adopted the appropriate line of treatment, the life of the Complainant might not be put under serious threat and his nose might not be left in such an open condition with almost regular bleeding and he would have been able to recover and to take solid foods instead of his present “living-dead” conditions. The gross medical negligence and deficiency in service of the OP not only put the life of the complainant under threat, but also caused a serious mental agony to the Complainant, and till date a sum of Rs. 6 Lakh have already been spent by the Complainant for the cause of wrong and misdirected line of treatment given by the Ops. The cause of action of this case has started on and from 28.11.2017, i.e. from the date of last treatment by Op and it continues till date. All the relevant papers and documents have been filed in photo copies. Therefore, the Complainant hereby prefers this complainant before this Commission with the prayers for directing the Opposite Parties, to pay a consolidated compensation of Rs. 9,90,000/- to the Complainant for medical negligence, deficiency in service, mental agony, medical expenditures, to pay litigation cost of Rs. 10,000/- to the complainant for conducting this case, to pass such other orders of relief as the the Commission may deem fit and proper.
Notices have been duly served upon the ops. The Opposite Parties No.1, 2 and 3 have contested the case by filing written versions in two sets one by op-1 and another by ops-2 & 3 together.
The sum and summarisation of the written version of the OP-1 can be stated as follows: The Complainant has no cause of action for filing the instant complaint case under objection. The instant complaint case is harassing, motivated, concocted, false, fabricated, oppressive, frivolous, scandalous, after thought, baseless, vexatious, imaginary, and speculative with ulterior motive and wrongful gain, prolix, unnecessary, and thus not sustainable. The instant complaint case has been filed with an ulterior motive and for wrongful gain to harass and terminate the prestige of the opposite party with a cook and bull story. The instant complaint case is bad for non-joinder and mis-joinder of parties and thus it is not maintainable. Save and except those are matters of records and are specifically admitted in this written version all other averments and allegations made against the opposite party No.1 in this complaint under objection are specifically denied and disputed hereunder in seriatim by the present contesting opposite party no.1 and onus is strictly upon the Complainant to prove the same. According to op-1 he is a reputed doctor. He is engaged in rendering the medical services to the patients at large and other services related with medical services very honestly, sincerely, and carefully and also maintaining a goodwill and prestige in the field of medical services. He was /is all along very much diligent in providing the services to the high extend of satisfaction to their large number of customers. The opposite party No.1 had graduated in Medicine in ENT obtaining MBBS Degree from University of Calcutta and have been duly registered with West Bengal Medical Council with Registration NO. 65023 and attached with Calcutta Medical College and Hospital having specialist in Microersurgery, Endoscopic Nasal Sinus surgery, Head-Neck and thyroid surgery. It is further submitted by the present contesting opposite party No.1 that the present complaint filed by the complainant is not maintainable in law and is liable to be dismissed summarily for the following:-
- The Hon’ble Supreme Court in the judgement reported in 2009 (1) CPJ 32(SC) has specifically laid down that before admitting a complaint the complaint ought to have been referred for opinion of medical expert of specialized field before further proceeding in the matter the complainant herein has not filed any expert opinion in this matter which makes the complaint bad in the eye of law.
- It is submitted that the medical issues involved in this case is of so complicated in nature that without any evidence of medical expert of specialized field it would not be possible for the Hon’ble Commission to decide the matter and further voluminous evidence has to be recorded. The Consumer Forums being created for summary trial the present case be dismissed.
- It is stated that the complainant does not disclose any cause of action against the contesting opposite party No.1 and as such the same is liable to be dismissed.
- It is further submitted that the present complaint has been filed only to malign the reputation of the contesting opposite party No.1 and as such the same be dismissed with cost.
- The proceeding before this Ld. Forum being summary in nature and the issues involved in this case being complicated particularly when the allegations involved are of medical negligence of very highly technical nature this Ld. Forum would be pleased not to exercise jurisdiction in the mater and direct the complainant to approach civil court or the appropriate Forum for the appropriate reliefs.
- From the allegations made in the complaint It would be clear that the same would involve not only complicated question of facts of highly technical nature at the same time to adjudicate the dispute the evidence of experts would be required. The evidence to be extended by the parties in support of the respective contentions would involve elaborate oral evidence and adducing of voluminous documentary evidence and detailed scrutiny and assessment of such evidence by the Hon’ble Commission. The Ld. Forum constituted under Consumer Protection Act have only to exercise jurisdiction in the simple cases and to decline its jurisdiction in entertaining the purported complaint. The treatment procedure which has been adopted by the present contesting opposite party No.1 as follows:
The Complainant on 25.04.2017 consulted with the present contesting opposite party No.1 with complications of small polypoidal soft tissue mass (Nature) in posterior part of hard palate on right side and few small left maxillary polyps and C-shaped DNS with septal spur towards right side with hypertrophic interior nasal turbinate. The present contesting opposite party No.1 after clinical examination of the complainant has suggested for operation and accordingly the complainant was treated under the present contesting opposite party No.1 with care and cautious with all preoperative precautions with the following methods and procedure:-
WIDE LOCAL EXCISION OF PALATAL TUMOR QUARRY PLEOMORPHIC ADENOMA
PROCEDURE-1 Date 25.04.2017
DEFINITION :
UNDER GENERAL Anesthesia the patient supine.
- Mouth open by Boyle Davis mouth gag.
- Tumour seen involving posterior part of hard palate (inner upper side of the mouth the tumor was found).
- Wide local excision of tumour done including with normal tissue margin.
- Palatal defect is kept to ensure complete removal of tumour tissue.
- Histopathology report date-05.05.2017 pleomorphic salivary adenoma involving minor salivary gland.
PROCEDURE 2: Date 26.10.2017
PALATAL DEFECT REPAIR
DEFINITION:
After Proper Consent of Patient and Patient Party
- Under General anesthesia.
- Repair of palatal defect done in layer release of palatal flaps from palatal and nasal side.
PROCEDURE: 3 Date 30.10.2017
PALATAL DEFECT RECONSTRUCTION
DEFINITION:
After proper consent of patient and patient party.
- Under general anesthesia repair of palatal defect done by rotating local palatal flaps. Also offer on FHNO MD did on worship in head and neck in aims newer.
In medical science, probably there is not a single procedure, which has a 100% success rate. It is further submitted by the present contesting opposite party No.1 that the instant case is not maintainable in the eye of law, so the instant case is liable to be dismissed So, there is no deliberate laches or negligence on the part of the present contesting opposite party No.1 and also there is no deficiency in service on their part as the present contesting Opposite Party No.1 has duly performed their part of duties with care and cautions and the present contesting Opposite Party no.1 adopted the correct medical procedure line of treatment as available with regard to the treatment of the Complainant. The present contesting Opposite Party No.1 begs to submit that the Complainant avoided the follow up treatment as advised by the present contesting Opposite party No.1 and voluntarily withdrawn himself from the post-operative line of treatment as advised. The present contesting Opposite party No.1 begs to submit that the complainant has filed the instant case for wrongful gain suppressing the material fact. The Complainant has deliberately and intentionally suppressed the said material fact before this Ld. Forum and on that score that instant case is not maintainable in the eye of law. It is further submitted by the present contesting Opposite Party NO.1 that there are no deliberate laches or negligence on the apart of the present contesting Opposite Party No.1 and also there is no deficiency in service on their part as the present contesting Opposite Party No.1 has duly performed theirpart of duties to the Complainant. The present contesting Opposite Party No.1 begs to submit that he Complainant is not at all the consumer within the meaning of the Consumer a defined in the consumer Protection Act, 1986 as amended up-to-date. There is no service provider and consumer relationship in between the Complainant and the contesting does not existing Opposite Party No.-1, It is further submitted by the present contesting Opposite Party No.-1 that the sender of application is an equitable relief and lacks equity, must do equity by the Complainant and should come to court with clean hand. In the instant case the Complainant has not come before the court with clean hand but willful, intentionally and deliberately suppressed the materials facts and circumstances and as such the application of the applicant to be considered for rejection. The complaint is barred by limitation a claim under the provision of the consumer protection ought to be preferred ‘within a reasonable time’. But in spite of that the complainants has filed the instant case against the present contesting Opposite Party No.1 fulfill his evil intention and wrongful gain to terminate the prestige of the present contesting Opposite Party No.-1 and to realize the unlawful claim and money from the present contesting Opposite Party No.-1 with the help of the instant the baseless, harassing, motivated, concocted, false, fabricated, Oppressive, frivolous, scandalous, after thought, vexatious, imaginary, speculative, with ulterior motive and wrongful gain, prolix, unnecessary story and statement and as a result of that the complainant is not entitled to get any relief and compensation as prayed for. It is further submitted by the present contesting Opposite Party No.-1 that the Complainant has not filed any scrap of paper to show that said claim of the Complainant is a genuine one .TheComplainant is not entitled to get the relief as prayed for in the instant complaint under objection.
The sum and summarisation of the written version of the OP-2 & 3 can be stated as follows: The Complainant has no cause of action to file the instant complaint and it is liable to be dismissed. It is not denied that the patient was admitted in O.P. No.2’s Nursing home for Palatal Tumor operation under the treatment of Dr. Soumik Saha on 25.04.2017 and after completion of operation he was discharged on 26.04.2017 with cured condition. The OP No.2 denies that at the time of discharge no bill was given and an amount of Rs. 30,000/- was taken as the Doctors fees and cost of operation. It is not denied that the patient was admitted in O.P. No.3’s Nursing home for further two operations for repair all the damage of complainant under the treatment of Dr. SoumikSaha on 26.10.2017, 30.10.2017 and after completion of operation he was discharged with cured condition. The O.P. NO.2 & 3 deny all the statements made in the written complaint. At the time of admission the patient was given pre-operative precaution and he was also given post operative precautions and care and was provided with medicines as prescribed by the doctor. The patient was discharged all time in cured condition. At the time of discharge he was given all the papers relating to his treatment & bill and acknowledging the same according to the norms. There is no lacuna on the part of the nursing home authority in rendering proper medical treatment during his admission period. The patient being misguided has brought this case without any sufficient cause. All precautions and all ethics, norms have been properly maintained in performing the operation . There was no negligence on the part of the nursing home authorities. As such according to them the case is liable to be dismissed.
Arguments:
It is the contention of the Ld. Advocate for the OP No. 1 that the complainant is not a consumer as against OP No. 1 as complainant has not filed any money receipt showing that the doctor took any money. Dr. B.C. Hazra who treated the complainant initially has not been made a party in this case. He deposed in this case as OP No. 2 as an expert witness as he treated the patient too. He can not be any independent or expert witness. The complainant has not called for any expert opinion report by any Medical Officer of Government Hospital. The complainant was firstly treated on 11.04.2017 and again by OP No. 2 on 25.04.2017. The complainant has not stated in between the said 14 days from where he got treatment. The medical reports of AIMS, Kalinga Hospital and C.M.C., Vellore do not reflect any opinion to the effect that initial treatment done by OP No. 1 was wrong or defective in nature ; while pointing to the deposition of PW-2 he submits that in his cross-examination it has been elicited that there is chance of developing of a hole after removal polyp or by operation. Everyoperation there is risk factor. The perforation found is repairable. According to the Ld. Advocate for the OP-1 the above testimony of witness( PW-2)support the version of OPW- No. 1.
To buttress his contentions, the Ld. Advocate for op-1 has referred the following case laws :
In the case reported in 2018(1) CPR 507 (NC) wherein it is heldit is known that “No cure/no success is not a negligence”, thus fastening the liability upon the treating doctor is unjustified.
In the case reported in 2018(1) CPR 1 (ALL) wherein it is helda Judge can find a doctor guilty only when it is proved that he has fallen short of standard of reasonable medical care—In medical negligence cases, it is for patient/complainant to establish his case against medical professional and not for medical professional to prove that he acted with sufficient care and skill-Courts and Consumer For a are not experts in medical science and must not substitute their own views over that of specialists.
In the case reported in 2018(4) CPR 738 (SC) wherein it is held by the Hon’ble Court Respondent claiming negligence on the ground that she did not give consent for conventional surgery -Respondent’s or he may consider substitute or necessary or proper in the event of any emergency or if any anticipated condition is discovered during the course of the operation – Held, separate consent was not required as claimed by respondent – Even then appellant coming out of operation theatre and seeking consent of respondent’s husband for conventional surgery and doing so only thereafter-Respondent not citing any specific negligence-Respondent not adducing any medical evidence of any expert – Held, State Commission rightly rejected the claim.
In the case of MARTIN F. D’SOUZA – vs MOHD. ISHFAQ reported in 1(2009) CPJ 32 (SC) the Hon’ble SUPREME COURT OF INDIA observed in para - 41A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide AchutraoHaribhauKhodwa & others v. State of Maharashtra & Others, AIR 1996 SC 2377, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade. He also filed a literature regarding Nasal Polyp source, WIKIPEDIA- The free Encyclopedia for better under standing the contentions. The Ld Advocate for ops-2 & 3 has advanced his arguments in consonance with the view of the Ld Advocate for the op-1. Both of them have submitted that the case is liable to be dismissed.
Per Contra : The Ld Advocate for the complainant has countered the said contentions and submitted that the present condition of the complainant’s nasal region of the face suggest that it is due to negligent treatment done by the op no-1. Had the Ops been careful and cautious, and had they followed the basic guidelines and medical norms, and had the Ops adopted the appropriate line of treatment, the life of the Complainant might not be put under serious threat and his nose might not be left in such an open condition with almost regular bleeding and he would have been able to recover and to take solid foods instead of his present “living-dead” conditions. The gross medical negligence and deficiency in service of the OPs not only put the life of the complainant under threat, but also caused a serious mental agony to the Complainant, and till date a sum of Rs. 6 Lakh have already been spent by the Complainant for the cause of wrong and misdirected line of treatment given by the Ops. So, he prays for appropriate reliefs.
After careful consideration of the complaint supported by affidavit, written versions, evidences presented by the contesting parties and arguments, the following points are framed for consideration:
Points for Determination
1. Whether the complaint is maintainable in its present form and in law?
2. Whether the patient Saroj Samanta was given treatment as per protocol and guidelines without and deficiency or negligence?
3. If there was negligence or deficiency, what is the compensation to be given to the complainant?
4. To what other relief the complainant is entitled?
Decision with reasons
In re: Point no-1
We have carefully read, analyzed and evaluated the complaint supported by affidavit, written versions, evidences presented by the contesting parties and arguments. Indisputably, the OP No.1 treated the complainantfor the first on 25.04.2017 and continued his further follow up treatment of the Complainant at his private chambers both at Mahishadal and Tamluk on 07.05.2017, 28.05.2017, 04.06.2017, 14.06.2017, 11.07.2017, 30.07.2017, 08.10.2017, 22.10.2017, 29.10.2017, 28.11.2017 .Surgeries were done in the establishment of ops -2 & 3.It is not the case of ops that either op-1 or ops 2 & 3 provided for treatment of the complainant as complimentary or on charity. The preponderance of evidence and other documents indicate that the complainant has established his relation with the ops as consumer and service provider. As such, the instant case is maintainable in its present form and law.
In re: Points, 2,3 & 4
The points, 2,3 &4 being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
Having regards had to evidence of the complainant it appears that he has deposed that after perusing the CT Scan Report, the said Dr. B.C. Hazra opined that the Complainant was suffering from Palatal Tumor. The OP No.1 is a reputed consultant ENT Head Neck Surgeon who proposed to have a huge degree, qualification and experience though his signboard and have private chambers both at Mahishadalie. near the house of the Complainant and at Tamluk. Hoping for a better treatment, the Complainant firstly visited the chamber of OP No.1 at Tamluk on 25.04.2017, when the OP No.1 opined for an instant surgery and made arrangement at OP No. 2’s Nursing Home by his own volition and got admitted the Complainant there on the same day. The Complainant got operated at OP No.2’s Nursing Home on 25.04.2017 by OP No.1 and got released from there on 26.04.2017 with open nose palates, after depositing Rs. 30,000/- as the Doctor’s fees and cost of Operation (Package System), however, without any bill (Discharge Certificate Annexure B). the OP No.1 also opted for a Histopathological Report of the Palatal Growth to be done at his recommended Laboratory and the report revealed “Pleomorphic Salivary Adenoma “ (Annexure C). However, the Complainant found no relief in his affected nose palate rather the palate became open and his whole mount got infected swallowed hugely and the Complainant could not take any solid food till date. The OP No.1 still continued his further follow up treatment of the Complainant at his private chambers both at Mahishadal and Tamluk on 07.05.2017, 28.05.2017, 04.06.2017, 14.06.2017, 11.07.2017, 30.07.2017, 08.10.2017, 22.10.2017, 29.10.2017, 28.11.2017 and on each visit the OP NO.1 received his visiting fees (Annexure D series). Meanwhile, he performed two further operations to repair all his damage done upon the affected and open nose of the Complainant on 26.10.2017 (released on 27.10.2017) and on 30.10.2017 (released on 02.11.32017) both at the Nursing Home of OP No.3 at a most unhygienic ways and by realizing a package of Rs. 30,000/- on each occasions, thus in the Ops jointly realized (Rs 30,000/- X 3) = 90,000/- from the Complainant apart from the separate visiting fees and cost of medicines and pathological tests, (Discharge Certificates of OP No.3 Annexure E & F). Thereafter, as there was no relief, rather the physical and mental condition of the Complainant got worsen day by day, and he lost his normal speaking voice and became completely unable to take any solid food, he lost all his hope and faith upon the Ops and went to Dr. Chanchal Khatua having Chamber at Dhanwantori Pharmacy at Padumbasan, Tamluk on 07.11.2017 onwards (Annexure G) and thereafter at the “All India Institute of Medical Science, Bhubaneswar” at Patrapada, Bhubaneswar, Odisha on 06.01.2018, where he was diagnosed to have developed Palatal Fistula along with all his previous diseases as it was (Annexure H series). The Complainant also visited the “Kalinga Hospital Limited” in Bhubaneswar, Odisha (Annexure 1 series) and C K Birla Hospitals CMRI in Kolkata 07.2018 and a prolonged treatment for the repair of debris and destruction created by this Op NO.1 has been planned. Till date, for the wrong treatment and operation by the Op No.1, in connivance with OP No.2 & 3 , a total of over 6,00,000/- has already been spent by the Complainant, and still he is subjected to prolonged treatment, with utmost hope a belief that one day he may be fully cured. Had the Ops been careful and cautious, and had they followed the basic guidelines and medical norms, and had the Ops adopted the appropriate line of treatment, the life of the Complainant might not be put under serious threat and his nose might not be left in such an open condition with almost regular bleeding and he would have been able to recover and to take solid foods instead of his present “living-dead” conditions.
On careful scrutiny of the complaint, it is evident that complainant has made no specific allegation of breach of duty and any professional misconduct against the Opposite Parties, The crux of his allegation is that had the Ops been careful and cautious, and had they followed the basic guidelines and medical norms, and had the Ops adopted the appropriate line of treatment, the life of the Complainant might not be put under serious threat and his nose might not be left in such an open condition with almost regular bleeding and he would have been able to recover and to take solid foods instead of his present “living-dead” conditions.
Now, it is evident thathe has not specifically narrated as to how the op-1 failed to take duty of care in deciding whether to undertake the case, or a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. He has also failed to narrate how op-1 made breach of any of those duties given a right of action for negligence to the patient or how the op-1/ practitioner made dereliction of his duty to bring to his task a reasonable degree of skill and knowledge and or did not exercise a reasonable degree of care etc. The complainant has not been able to discard the procedures undertaken by the op-1 as narrated in the written versions; it has not been proved by rebuttal evidence or medical literature that the treatment given by theop-1 was wrong or such type of treatment is not generally done by any doctor of his field or with similar prudence. The complainant has not established any instance the op-1 has fallen short of standard of reasonable medical care or he acted with insufficient care and skill. The complainant has not adduced any medical evidence of any expert upon constituting medical board under the CMOH of the concerned District. On the contrary PW-2 who posed to be expert has rather supported the version of opw-1 by deposing that there is chance of developing of a hole after removalof polyp or by operation. Every operation there is risk factor. The perforation found is repairable .
On the other hand ,from the questionnaire put to the complainantand reply thereto and the annexure A to A 26 ,it appears that Admission form was duly signed by the wife of the complainant Manashi Samanta ,Consent letter ( A-6 , from the end of op-2) was signed by Dilip Kr. Metya ,in para -14 of the consent letter the consequence of operation was duly and legibly described. The factum of apprehending probable formation of hole on the region of operation were apprised of to the signatory of the consent form. The repairing surgery were also done according to the medical Protocol. Annexure ,A-20 provided by op-3 also shows the consent was tendered by complainant’s by brother Suprabhat Samanta. Any doctor of “Kalinga Hospital Limited” in Bhubaneswar, Odisha (Annexure 1 series) and C K Birla Hospitals CMRI in Kolkata and CMC Vellore has not tendered any comment or opinion to the effect that op-1 committed any error or gross negligence conducting the whole treatment or any part of his treatment.It has also not been proved that ops 2 & 3 had had any unhygienic atmosphere for which his any of operations got un successful or impaired.The ratio of the Judgements cited by the Ld Advocate for op-1 are applicable in the facts and circumstances of this case. In the light of the above discussion, we find that there is substance in the contentions put forth by the Ld Advocates for the ops.On the otherhand the submission of the Ld Advocate for the complainant can not be accepted.
Now, let us analyse the facts and circumstances of the instant case on the anvil of settled position of law and the ratio settled by the Honble Apex Court in the cases of medical negligence. A three judge Bench of the Hon’ble Apex Court in Dr. Laxcman Balkrishna Joshi v Dr. TrimbakBapuGodbole stipulated that the standard to be applied by a medical practitioner must be of a reasonable degree of care”..
“11. The duties which a doctor owes to his patient are clear. A person who hold himself and ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owed him certain duties viz a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties given a right of action for negligence to the patient. The practitioner must bring to his task 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 (cf. Halsbury”s Laws of England 3rdEdn. Vol. 26 p. 17)”.
In Jacob Mathew v State of Punjab, a three judge Bench of the Hon’bleSupreme Court upheld the standard of the ordinary competent medical practitioner exercising an ordinary degree of professional skill, as enunciated in Bolam (supra). The Court held that the standard of care must be in accordance with “general and approved practice”.
“24. The classical statement of law in Bolam has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular.
It has been invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and skill attained was that of the originally a competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, that standard of care, which assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used.”
After discussing the applicability of Bolam Test in the present day context, the Hon’ble Supreme Court held that the Bolam test is applicable for deciding medical negligence cases in the following words.
“41. Our law must take into account advances in medical sciences and ensure that a patient – centric approach is adopted. The standard of care as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts. Significantly, the standard adopted by the three-judge bench of this Court in Jacob Matthew includes the requirement that the course adopted by the medical professional be consistent with “general and approved practice” and we are bound by this decision.”
In the Jacob Mathew case Vs State of Punjab Hon’ble Supreme Court concluded-
1. 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 efforts would do or doing something which a prudent and reasonable man would not do ...The essential components of negligence are three: “duty “breach “ and “ resulting damage”.
2. Negligence in the conduct of the medical profession necessarily calls for a treatment with a difference. ...A simple lack of care, an error of judgement or an accident is not proof of negligence on the part of medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day he can not be held liable for negligence merely because 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 external precautions which might have prevented the particular happening can not be the standard for judging the alleged negligence.
3. A professional may be held liable for negligence on one of the two finds: either he was not processed 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.
4. The test for determining medical intelligence as laid down in Bolama case 1957 holds goods in its applicability in India.”
In Martin F.D.’ Souza vs. Mohd.Ishfaqon 17 February, 2009 the Hon’ble Supreme Court observed
“112. It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is,”
In Kusum Sharma vsBatra HospitalstheHon’ble Supreme Court held
“89. While deciding whether the medical professional is guilty of medical negligence following well known principles must be in view:-
Negligence is not breach of a duty exercised by omission to do something which is 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 reasonable competent practitioner in his field.
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.
On evaluation of the facts and circumstances of the case on the touchstone of above cited principles of law, we are of the opinion that the patient Saroj Samanta was given treatment as per protocol and guidelines without any deficiency or negligence. There was no negligence or deficiency on the part of the op 1 or the ops- 2& 3 of this case. The Complainant has failed to bring home any elements of negligence and deficiency in service against the ops .The complainant is not entitled to get any relief in this case. Consequently, the points 2,3& 4 are decided against the Complainant.
Thus, the case does not succeed.
Hence, it is
O R D E R E D
That the CC/491of 2018 be and the same is dismissed on contest against all the ops-1, 2& 3. No order as to costs is passed.
Let a copy of the judgment be supplied to each of the parties, free of cost.
