West Bengal

Bankura

CC/2/2024

Dinobandhu Kundu - Complainant(s)

Versus

Dr.Sudhansu Sarkar - Opp.Party(s)

Subrata Kumar Chakraborty

06 Aug 2024

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA

  Consumer Complaint No.02/2024

          Date of Filing:  02/01/2024

Before:                                        

1. Samiran Dutta                                     Ld. President      

2. Siddhartha Sankar Bhui                    Ld. Member

 

For the Complainant:Ld. Advocate Subrata Chakraborty

For the O.P.: Ld. Advocate Sayontan Chowdhury

 

Complainant:

Dinobandhu Kundu,S/O-Late Atankabhanjan Kundu,R/O-Vill&P.O-Hura,P.S-Hura,Dist-Purulia,presently residing at Kshudiram Bose Sarani,P.O-Kenduadihi,P.S&Dist-Bankura,Mob-8918452702

Opposite Party:

1.Dr.Sudhansu Sarkar,one of the Doctor of Anamoy Polyclinic,Diagnostic Center & Hospital situated at Gobindanagar Bus-Stand,Bankura,P.O-Kenduadihi,P.S-Bankura,Dist-Bankura

2.Director of Anamoy Polyclinic, Diagnostic Center & Hospital situated at Gobindanagar Bus-Stand,Bankura,P.O-Kenduadihi,P.S-Bankura,Dist-Bankura

 

FINAL ORDER / JUDGEMENT                  

 

Order No.10

Dated:06-08-2024

Both parties file hazira through Advocate.

The case is fixed for argument.

At this stage a petition is filed on behalf of the Complainant for taking evidence of O.P. No.1/Dr. on the ground stated therein.

The Complainant without leading evidence himself cannot ask for evidence of the adversary. The prayer is accordingly rejected.

After hearing argument from both sides the Commission proceeds to dispose of the case as hereunder: -

The Complainant’s case is that he was suffering from Fistula in ano and visited O.P. No.1/Surgeon attached to O.P. No.2/Nursing Home on 27/02/2023 when O.P. No.1/Surgeon suggested for operation and accordingly he was admitted on 13/05/2023 at O.P. No.2/Nursing Home and after operation of Fistula by laser surgery on 14/05/2023 under the supervision of O.P. No.1/Surgeon he was discharged on 15/05/2023. But on and from 16/05/2023 the Complainant having

experienced post operative sufferings  again contacted O.P. No.1/Surgeon on

                                                                                                                                                                                        Contd…..p/2

Page: 2

20/05/2023 who advised for further operation and accordingly he was again admitted on 26/05/2023 at O.P. No.2/Nursing Home and after operation he was discharged on 27/05/2023. But the Fistula problem was still subsisting and the Complainant felt that Fistula operation has not been successfully done by O.P. No.1/Surgeon which compelled him to visit Dr. Partha Sarkar, Director of Advanced Research Institute for Ano-Rectal Surgery, Kolkata on 04/06/2023 who however initially advised to refer the Complainant before the AIIMS, New Delhi but upon insistence Dr. Partha Sarkar undertook  the Fistula operation further on 07/06/2023 at Seva Niketan Nursing Home, Kolkata and after successful operation of Fistula he was discharged on10/06/2023. The Complainant has incurred huge medical expenses for such unsuccessful Fistula operation at the hands of O.P. No.1/Surgeon at O.P. No.2/Nursing Home for which he has approached this Commission alleging medical negligence against the O.P. Dr./Nursing Home claiming adequate compensation for the same.

Both O.P. No.1/Surgeon and O.P. No.2/Nursing Home contested the case by filing a joint written version contending inter alia that after all  necessary examinations and investigations including Fistulogram X’ray and being satisfied with the reports thereof Fistula operation was carried out by laser surgery successfully but due to some post-operative problem the Complainant had to undergo operation for the second time. Both O.P. No.1&2 all along followed medical standard, skill and diligence  during pre-operative and post-operative period and as such they cannot be held liable on any ground of medical negligence for any complication arising out of such operation.

-: Decision with reasons:-

Having regard to the facts of the case, contention, submission, and documents on both sides the Commission finds that admittedly the Complainant being a patient of Fistula had to undergo Fistula operation by laser surgery twice under the supervision of O.P. No.1/Surgeon at O.P. No.2/Nursing Home within a short interval.

According to the Complainant Fistula operation done twice at the instance of O.P. No.1/Surgeon at O.P. No.2/Nursing Home was not successful otherwise he could get complete relief. Being dissatisfied with the operation and surgery at the hands of O.P. No.1/Surgeon at O.P. No.2/Nursing Home the Complainant got complete relief immediately after undergoing similar operation at the hands of Dr. Partha Sarkar, Kolkata.

                                                                                                                                         

                                                                                                                                                                            Contd…..p/3    

Page: 3

It is the usual impression of the Complainant that Fistula operation at the hands of O.P. No.1/Surgeon at O.P. No.2/Nursing Home having failed to give him any relief cannot be said to be successfully done  due to medical negligence on the part of the operating doctor. Subsequent operation at Kolkata immediately thereafter has cured the Complainant of his Fistula complication and thanks should be given for successful operation done by said Dr. Partha Sarkar.

But the act medical negligence on the part of the operating Dr. cannot be equated to the success or nonsuccess of the operation but it is based on the theory whether the operating Dr. followed the medical protocol for such operation with skill and diligence.

The Commission finds from the record that before performing Fistula operation X’ray report of Fistulogram dated:27/04/2023 was consulted by O.P. No.1/Surgeon where it gives the impression of Sinus Tract in Right Perianal Fossa and Fistula operation was done accordingly as usual.

It is no doubt true that some post-operative complication arose for which the Complainant was subjected to further similar operation. No damage or irregularities in Fistula operation could be suggested from any of the materials on record produced by the Complainant. MRI report of the Fistulogram dated: 05/06/2023 for the subsequent operation at the hands of Dr. Partha Sarkar does not draw any adverse inference regarding previously performed operation done by O.P. No.1/Surgeon at O.P. No.2/Nursing Home. The risk of Fistula operation can  easily be understandable from the prescription of Dr. Partha Sarkar dated: 04/06/2023 where it is categorically stated that the chance of success of operation is 80% without any guarantee of 100% success. Recurrent Fistula in Ano cannot also be ruled out in such case.

                                                                                                                                                                          Contd…..p/4  

Page: 4

Thus being driven by personal impression and ignorance of actual concept of Fistula operation the Complainant has filed the instant case against the O.P.s with unfounded allegation of medical negligence and the Commission cannot therefore entertain it. It cannot be the generalized theory of medical negligence that the treating/operating doctor at whose treatment the patient gets relief is a good doctor but the doctor on the same footing cannot be said to be an unsuccessful doctor if the operation or treatment somehow gives rise to some post-operative complication.

From practical point of consideration the Complainant has failed to make out a case of medical negligence of wrong treatment / operation against the O.P. Surgeon/Nursing Home but what the Complainant has tried to establish in this case is an unsuccessful Fistula operation which is literally different from wrong treatment/operation.

Hence it is ordered…….

That the case be and the same is dismissed on contest but without cost.

Both parties be supplied copy of this Order free of cost.

 

     __________________                                   ________________                         

 HON’BLE   PRESIDENT                           HON’BLE    MEMBER