West Tripura


Ms.Inia Debnath. - Complainant(s)


Dr.Amitava Roy. - Opp.Party(s)

Mr.A.L.Saha, Mr.K.Nandi, Mr.S.Bhowmik

15 Jun 2023


CASE   NO:   CC- 118 of 2021
Ms. Inia Debnath,
D/O Sri Sujit Debnath,
P.O. Dhaleswar, P.S. East Agartala, 
Dhaleswar Road No.7,
Agartala -799007, 
District- West Tripura. ..............Complainant.
1. Dr. Amitava Roy, 
17, Thakurpalli Road, Kadamtali,
Opposite CNG filling Station,
Krishnanagar, Agartala- 799001,
District- West Tripura.
2. Diagnostic & Analytic Lab,
17, Thakurpalli Road, Kadamtali,
Opposite CNG filing Station,
Krishnanagar, Agartala- 799001,
District – West Tripura. …..........Opposite parties.
For the Complainant : Sri Amritlal Saha,
  Sri Kajal Nandi,
  Sri Sunil Bhaumik, 
    Learned Advocates. 
For the Opposite Parties : Sri Sankar Bhattacharya,
  Sri Subendu Noatia,
  Jermin Debbarma,
  Learned Advocates.
ORDER  DELIVERED  ON:   15.06.2023.
F I N A L    O R D E R
1. Inia Debnath (here-in-after called as “the Complainant”) has filed this complaint against the O.P. No.1 and 2 claiming compensation on the ground of medical negligence on the part of the O.P. No.1 and 2. 
1.1 On 19.08.2020 the complainant visited the chamber of O.P. No.1 who advised some pathological tests from laboratory of O.P. No.2. The O.P. No.1 advised GI Endoscopy and Colonoscopy.
1.2 After biopsy test possibility of IBD (Inflammatory Bowl Disease) was considered and O.P. No.1 prescribed medicines. However, the condition of the complainant gradually deteriorated. Now the complainant visited ILS Hospital, Agartala wherein she was treated as outdoor and indoor patient during the month of March, 2021. There pathological tests were conducted and Doctor at ILS Hospital opined wrong diagnosis by the O.P. No.1 and 2. At this juncture the complainant went to AMRI Hospital, Kolkata wherein Dr. K.K. Ghosh and Angshuman Mudkhapadhya, Pulmonologist conducted various tests and the biopsy block conducted by O.P. No.1 and 2 was collected and was given to Dr. Tribedi  & Roy, a Diagnostic laboratory in Kolkata. As per the report of Tribedi & Roy it was detected that the complainant was not suffering from IBD but in fact the complainant had been suffering from Crohn's disease and Tuberculosis(TB). Medicines were prescribed accordingly.  
1.3 Due to wrong diagnosis the complainant had to suffer physically, mentally and financially. As such has filed this case claiming compensation as the O.Ps did not have necessary skills to perform the duties of physician and pathologist. 
1.4 Legal Notice was served on 14.06.2021 claiming compensation but to no good. 
2. The O.Ps submitted joint written objection denying and disputing any negligence. The O.Ps further pleaded that the diagnosis of the O.Ps matched with the diagnosis of ILS Hospital, Agartala and report of Tribedi and Roy, Kolkata. The O.Ps pleaded that no action has been complained against ILS Hospital, Agartala which clearly proves the vindictive attitude of the complainant. It is pleaded in Para- 6 of the written objection that the condition of the complainant was improving but after 12.01.2021 the complainant stopped visiting the O.P. The O.P. No.1 prescribed medicines as per protocol and considering clinical condition of the complainant and the O.P. No.1 noticed that the complainant had been medically improving.
2.1 That Crohn's disease is itself a type of IBD as per medical text and O.P. No.1 is not a Pulmonologist as such based on chest symptoms and further investigation related to the symptom on 30.03.2021 anti TB drugs prescribed by the Pulmonologist in Kolkata is not the subject of O.P. No.1 and the O.Ps deny and dispute the allegation that the pathological test and report conducted were wrong.
3. The complainant submitted evidence on affidavit and by firisthi submitted all medical documents and bills. 
3.1 The O.Ps also submitted evidence on affidavit.
4. During the course of argument Learned Counsel Mr. A.L. Saha appearing for the complainant argued that the medical reports of the O.Ps have been proved to be wrong and no proper care was taken by the O.Ps. Hence, the O.Ps are guilty of medical negligence. 
4.1 Per contra Learned Counsel Mr. Sankar Bhattacharya appearing for the O.Ps referred the judgment of Hon'ble Supreme Court in Vinod Jain Vs. Santokba Durlabji Memorial Hospital and Anr. reported in 2019 STPL 2992 SC argued that no medical negligence can be attributed to the O.Ps. 
5. Learned Counsel referred medical Text Book of Robbins and Cotran Pathologic Basis of Disease (Vol.II) South Asia Edition by Vinay Kumar, Abul K. Abbas and John C Aster, Chapter 17 Page- 796 and 797. 
6. The following points are taken up for discussion and decision:-
(I) Whether the O.Ps exercised ordinary skill of a medical officer and possessed the requisites skills to provide medical treatment  to the complainant? 
(II) Whether the O.Ps did exercise that skill with reasonable competence?
(III) Whether the complainant is entitled to any compensation as prayed for?
7. For better appreciation, paragraph – 8, 9 and 10 of the judgment of Vinod Jain(Supra) is reproduced below:-
''8. 'Negligence' has been defined in the Halsbury's Laws of England, 4th Edn. Vol. 26 pp. 17-18  and extracted in Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors. [(2010) 3 SCC 480]  as under: 
22. Negligence- Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.
9. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligence if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam V. Friern Hospital Management Committee [(1957) 1 WLR 582:: (1957) 2 All ER 118]). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A situation, thus, cannot be countenanced, which would be disservice to the community at large, by making doctors think more of their own safety than of the good of their patients.
10. This Court in another judgment in Jacob Mathew v. State of Punjab [(2005) 6 SCC1] dealt with the law of negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation of a degree of care and caution, but there could be no assurance of the result. A physician, thus, would not assure a full recovery in every case, and the only assurance given, by implication, is that he possesses the requisite skills in the branch of the profession, and while undertaking the performance of his task, he would exercise his skills with reasonable competence. Thus, a liability would only come, if (a) either the person(doctor) did not possess the requisite skills, which he professed to have possessed; or (b) he did not exercise, with reasonable competence in a given case, the skill which he did possess. It was held not to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. In  the said opinion, a reference was, once again, made to the Halsbury's Laws of England as under:
To Establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”   
8. Further as per the authority of Text Book referred by Learned Counsel of the O.Ps, we find that IBD is a “Inflammatory Bowel Disease:-
Inflammatory bowel disease(IBD) is a  chronic condition resulting from inappropriate mucosal immune activation. The two disorders that comprise IBD are colitis and Crohn disease.
The distinction between Ulcerative Colitis and Crohn disease is based, in large part, on the distribution of affected sites(Fig.17-32) and the morphologic expression of disease (Table 17-9) at those sites.(Ulcerative colitis is limited to the colon and rectum and extends only into the mucosa and submucosa, in contrast, Crohn disease, which has also been referred to as regional enteritis(because of frequent ileal involvement) may involve any area of the GI tract and is typically transmural.”
9. We do not find any opinion of the doctors in ILS Hospital, Agartala that the diagnosis of the O.Ps was wrong. Rather, the discharge summary dated 07.03.2021 of the ILS Hospital clearly indicates 'Suspected Ulcerative Colitis”. The medical document of AMRI Department Laboratory Medicine, Kolkata dated 18th March, 2021 shows that “Mycobacterium Tubercolosis: Detected very low” and it was advised to interpret the result in conjunction with other laboratory tests and clinically correlated. We also consider the medical documents of AMRI, Salt Lake, Kolkata of the Department of Pulmonology. 
10. Admittedly, the O.Ps particularly the O.P. No.1 is not a Pulmonologist. From the documents of AMRI, Kolkata, we do not find any opinion that the diagnosis of O.P. No.1 based on the report of O.P. No.2 was either wrong or a absurd diagnosis. 
11. Hon'ble Supreme Court in Vinod Jain(supra) as quoted above was also pleased to expound that the doctor can be held liable only in case, if he professed to have requisite skill inspite of not having that skill or the doctor inspite of having requisite skill did not exercise such skill with reasonable competence. 
12. What necessarily follows in the case at hand is that even if the entire pleading of the complainant is admitted, the condition for leveling allegation of medical negligence against the O.Ps does not stand on legal legs. 
13. On the top of it, the medical text book referred above also indicate that IBD is a Chronic condition which comprises two disorders i.e., 'Colitis' and 'Crohn's Disease'  and the distinction between these two is based on the distribution of the effected sites. Hence, even if there was error of judgment but it can not be said that the O.Ps did not exercise reasonable skill which they possess. And it is not the case of the complainant that the O.Ps did not possesses requisite skills which they professed to possess.
14. All the points are decided in the negative.
15. In the result, the case of the complainant is hereby dismissed, however, without cost. 
16. Supply a copy of this Final Order free of cost to the complainant and the Opposite parties.

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