HON’BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT
This Appeal has been directed against the judgement and order dated 21.11.2017 passed by ld. D.C.D.R.F., Siliguri in C.C. 11/S/2013 where the Ld. Forum concerned while disposing of the said Complaint Case allowed it in part against the Opposite Party with cost, directed the O.P. to pay a sum of Rs. 3 lakh (Rupees three lakh) towards compensation for long treatment, Rs. 1 lakh (Rupees one lakh) as compensation for mental pain, agony and harassment and Rs.10,000/- (Rupees ten thousand) towards litigation cost with default clause.
Being aggrieved by such judgement and order dated 21.11.2017 the present Appeal has been preferred by the Opposite Party/Kejriwal Stone Clinic and Kidney Care Centre, Siliguri.
The case of the Complainant/Respondent and hereinafter referred to as the Complainant was that the complainant Moina Byapari once paid a visit to the chamber of Dr.P.Biswas, Chief Surgeon, of N.F.Railway , NJP with complaint of recurring pain in the left inguinal region and being referred by said Dr. P.Biswas, the complainant consulted Dr. N. K .Kejriwal, a Doctor as well as one of the Directors of the Kejriwal Stone Clinic and Kidney Care Centre, Siliguri on 25.9.2012 with certain test reports including USG report, done from the Railway Hospital and after perusal of the said treatment records as well as the report of Dr. P. Biswas, it appeared to Dr. Kejriwal that the patient had calculus measuring approximately 7.2 mm in the left ureter as well as calculus measuring approximately 7.3 mm in the lower Calyx of the left kidney and another calculus measuring approximately 3.1 mm in the mid third of the kidney. The complainant after doing all the tests came to know from the Opposite party that she was suffering from stone in her kidney and the Opposite party advised the complainant to undergo surgery for recovery from the said disease. Consequently, surgery to the complainant was performed by the Opposite party and she was discharged from the Nursing home with the hope that she would be totally cured from the disease as the stone from the kidney had been removed. The complainant had to pay a sum of Rs.1 lakh (Rupees one lakh) for the surgery and another Rs.1 lakh (Rupees one lakh) for medicines and tests. After 10 days from the date of operation, the complainant suffered from pain in her stomach and she again paid visit to the Doctor for proper treatment and after some tests it was found that she was suffering from stone in her kidney. The complainant thereafter paid visit to the Opposite party for seeking reliefs but the Opposite party did not entertain her for which the complainant had to take recourse of the D.C.D.R.F. concerned claiming a sum of Rs.10 lakhs (Rupees ten lakh) for wrong treatment and Rs.2 lakh (Rupees two lakh ) for mental agony and tension complied with other consequential reliefs.
A written version was filed on behalf of the OP/Kejriwal’s Stone Clinic & Kidney Care Centre where the cause of action was categorically denied by the OP/appellant herein. In the said written statement, it was stated that the complainant first visited Dr. N. K. Kejriwal on 25-09-2012 as she was referred by Dr. P. Biswas, the chief surgeon of N.F. Railway, NJP for removal of her ureteric stone. The appellant/OP also stated that the complainant came to the said hospital with all her reports, done outside the Railway Hospital and on 25-09-2012 Dr. N. K. Kejriwal advised the patient to get herself admitted at the earliest for undergoing operation for removal of her ureteric stone with fresh USG report to know the exact status of her disease as the earlier USG was done on 14-09-2012 showing stones in both the kidneys and no ureteric stone was reflected in the said report. On 03-10-2013 the patient came to the OP and she was admitted at the hospital for undergoing removal of the left lower stone and she was discharged on 04-10-2012 with advice to take some medicines and she was again asked to report after one month with a fresh USG report. Denying the averments with regard to the operation charge amounting Rs. 1,00,000/- (Rupees one lakh), the OP in the said written version categorically claimed that a sum of Rs. 30,000/- (Rupees thirty thousand) to Rs. 35,000/- (Rupees thirty five thousand) were charged but as per request of Dr. P. Biswas, the operation charge including other incidental charges were reduced to Rs. 15,000/- (Rupees fifteen thousand) only. As per statement in the written version on 12-11-2012 the complainant reported the OP/Dr. with a complaint that she was suffering from pain in the lower abdomen and back, she produced a fresh USG report which mentioned a small calculus in the left kidney but no stone in the left lower ureter as it was already been removed in the previous operation. The OP in the said written version categorically stated that the left kidney stone was small in size and as such did not require any surgical intervention at that stage as her pain in the lower abdomen was not due to the kidney stone and thereafter the complainant did not turn up. Denying the allegations of negligence and deficiency in service on the part of the OP, the OP further reiterated that the complainant was not entitled to the compensation as prayed for and it ultimately a prayer for an order of dismissal of the complaint case was prayed for.
From the materials available on record as pointed out by Ld. Counsel appearing for the appellant, the respondent herein paid a visit to the chamber of Dr. N. K. Kejriwal, one of the Directors of the appellant/clinic with complaint of recurring pain in the left inguinal region and she brought all the test reports including USG report with her and after a careful perusal of the treatment records including the report of Dr. P. Biswas the chief surgeon of N.F. Railway, NJP, Dr. Kejriwal found a calculus measuring approx. 7.2 m.m. in the left uretus as well as calculus approx. 7.3 m.m. in the lower calyx of the left kidney and another calculus measuring approx. 3.1 m.m. in mid third of the right kidney.
The materials on record also revealed that the complainant was advised to get her admitted on 03-10-2012 for removal of calculus on the left uterus. Ld. Counsel for the appellant submitted that the patient was explained in details after diagnosis and in clear terms about the prognosis and she was further advised to bring all the relevant test reports. It was also pointed out that on 03-10-2012 Dr. N. K. Kejriwal, the surgeon of the appellant/clinic removed the calculus from the left uterer of the patient under General Anesthesia. The appellant/OP in his written version categorically claimed that the surgery was uneventful and the complaint/respondent herein was discharged on 04-10-2012 with advice to follow up after one month with fresh USG and upon being prescribed necessary medication. The appellant also claimed that as per recommendation of Dr. P. Biswas, the patient paid only a sum of Rs. 15,000/- (Rupees fifteen thousand) as the operation charge.
The main allegation of the patient partly was that the doctor of the appellant clinic did not give her proper treatment rather treated her negligently for which she had to suffer much and claimed compensation in terms of her application, being CC/11/S/2013.
The doctor who treated the patient in the written version categorically claimed that the patient paid a visit to the appellant/clinic again on 12-11-2012 with complains of pain in the lower abdomen and back and from the USG report dated 10-11-2012, it was detected that there was a presence of calculus measuring approximately 8 m.m. in the left kidney but no stone was found in the uteror which was removed by the appellant on 03-10-2012. It is argued before us that the doctor treating the patient prescribed certain medicines with the idea to treat such kidney stones conservatively with advise to follow up after three months.
Now the issue left before us is whether the doctor of the appellant clinic was justified in doing so or such an attempt of treating on the part of the doctor for the treatment of the patient conservatively can be termed as medical negligence or deficiency in service.
In this context we may refer to the report of Dr. Biswajit Dutta, Professor and Head, Department of Urology, North Bengal Medical College as opinion of expert in deciding this issue which is quoted herein below.
“1. Should a patient be operated for removal of ureteric stone stone without diagnosis of the same by the operating doctor?
If a patient comes to a surgeon with the recent investigation reports showing evidence of ureteric stone, after clinical examination and based on the evidence of recent investigation reports, patient can be planned for operation.
2. What steps is to be taken by the treating doctor before operating a patient for removal of ureteric stone?
Before operating a patient for removal of ureteric stone, the doctor should take history, does clinical examination and do investigations like Ultra sonography (USG), X-ray or CT scan of KUB region for confirmation of diagnosis of Ureteric stone and other relevant Blood examination, ECG, chest X-ray to exclude any risk or contraindication to surgery.
3. Should the treating doctor carry out ultrasonography (USG) of whole abdomen of the patient before operating him for removal of ureteric stone?
If very recent USG is available showing evidence of ureteral stone, it is not mandatory to advise USG by the treating doctor.
4. How far USG is important in case of operating a patient for removal of ureteric stone?
Usually, if USG done more than a week before the date of operation, USG can be done again before sending patient to OT.
USG can usually detect ureteric stone but may miss the same if the stone is very small, patient is very obese or abdomen contains excess gas. In this situation, if history and clinical symptoms are very much suspicious then NCCT of KUB can be done.
5. How serious is calculus in lower calyx of left kidney measuring 7.3 mm in size? What is the necessary treatment for it?
Opinion: A calculus of 7.3 mm in lower calyx of kidney usually remains asymptomatic and such asymptomatic calculus may be treated by close follow up only.
If such calculus causes recurrent pain, infection or hematuria, it may require treatment by RIRS with Flexible Ureteroscopy or ESWL or rarely by PCNL.
6. How serious is calculus measuring 9 mm in size in lower polar calculus in left kidney? What is the necessary treatment for it?
Opinion: A calculus of 9 mm in lower pole calyx of kidney usually remains asymptomatic and such asymptomatic calculus maybe treated by close follow up only.
If such calculus caused recurrent pain, infection or hematuria, it may require treatment by RIRS with flexible Ureteroscopy or ESWL or rarery by PCNL.
7. What does gradual increase in size of calculus in left kidney from 6.5 mm (in lower polar region) to 7.3 mm (in lower calyx) to 9 mm (In lower polar region) indicate? What is the necessary treatment for it?
Opinion: Small calculus in kidney may gradually increase in size though there is no definite rate in the increase in size of such renal calculus.
If such calculus causes recurrent pain, infection or hematuria, it may require treatment by RIRS with Flexible Ureteroscopy or ESWL or rarery by PCNL.
If the calculus remains asymptomatic, it can be treataed by regular follow up upto 10 mm in size.
8. What immediate and necessary steps to be adopted by the treating doctor if a patient complains of pain within one month since being operated for removal of ureteric stone?
Opinion: In such a patient, initially patient should be treated symptomatically with analgesic, antibiotic and then he/she should be investigated with Urine examination and culture/sensitivity, USG of whole abdomen, X-ray of KUB region and Hemogram and then to plan further treatment according to the investigation reports.
Ld. Counsel for the appellant in course of her argument explained the course of treatment adopted by the appellant/Dr. and with reference to the literature on the subject “Harison’s Principles of Internal Medicine, 19th Edition”, she pointed out that “it typically requires weeks to months (and often much longer) for a kidney stone to grow to a clinically detectable size. Although the passage of a stone is a dramatic event, stone formation and growth are characteristically clinically silent. A stone can remain asymptomatic in the kidney for years or even decades before signs or symptoms (e.g. pain) etc. became apparent”. On the basis of the above symptoms as pointed out in the literature, Ld. Counsel for the appellant urged that Ld. DCDRF failed to appreciate that the complainant did not produce any document to prove that such surgical intervention was necessary for the recurring pain suffered by her or to produce any document of treatment to prove that such surgical intervention was a necessity in her case or that she had to undergo the same by some other doctors subsequently when the size of the stone was detected as less than 10 mm. The conduct of the respondent/complainant, who filed the instant complaint case for claiming compensation to the tune of Rs. 12,00,000/- (Rupees twelve lakh) excluding the cost of treatment which was more than Rs. 1,00,000/- (Rupees one lakh) was not proper as it is coming out from the averments of the petition of complaint that he paid such amount to the OP for getting proper service and treatment, but he produced the receipts showing payment of Rs. 15,000/- (Rupees fifteen thousand) which is treated as concessional rate for providing proper service. Pointing out this factual aspect of the matter, Ld. Counsel for the appellant drew our attention to a decision of Hon’ble National Commission in Tata Motors Ltd. and another Vs. Hazoor Maharaj Baba and Another, reported in 2013 (4) CPR 272 and tried to impress that the complainant herein filed the instant complaint case against the hospital for the unlawful gain. Since the complainant could not produce the relevant receipt for payment of the balance consideration to the Hospital Authority, it can safely be held that the complainant never paid any such amount rather she paid the admitted amount of Rs. 15,000/- (Rupees fifteen thousand) for the treatment which according to their version was a concessional rate.
So far as the allegation of medical negligence in treating the patient/complainant was concerned, if we consider the allegations of the complainant in the light of the expert’s opinion quoted earlier, coupled with the consistent views of the Hon’ble National Commission and the Hon’ble Supreme Court on the subject it appears to us that the appellant/doctor decided to treat the patient in an alternative method and nonavailability of desired result from the treatment of a doctor cannot be termed as negligence on his part. Since it was not an allegation of the complainant that the attending surgeon was incompetent to treat the patient, suffering from kidney stone rather he preferred to treat the patient in a conservative method, his action for treatment cannot be termed as medical negligence or deficiency in service. Accordingly we are of the views that the allegation of medical negligence has not been established and Ld. DCDRF was not justified in passing the impugned judgment and allowing her prayer for compensation, the same being for wrongful gain.
In the result the appeal succeeds and accordingly we allow the appeal exparte. The judgment and order passed by Ld. DCDRF in CC/11/S/2013 dated 21-11-2017 are set aside. We do not pass any order as to cost.
