DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24-PARGANAS, JUDGES’ COURT, ALIPORE, KOLKATA-700 027
C.C. CASE NO._93 OF 2007
DATE OF FILING: 3.5.2007 DATE OF PASSING JUDGEMENT_29.12.2009_
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Present : President : Dipak Shyam Roy
Member(s) : A. Roy Chowdhury & Sharmi Basu
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COMPLAINANT : Mrs. Rehana Parveen, w/o Md. Hakimul Kabir of R.H.E
Sadhanpur, Flat no.E-5, P.O & Dist: Burdwan
-versus-
O. P. / O. PS : 1. Dr. Z.A Rahman, Ruby General Hospital, Kasba ,
Golpark, E.M. Bypass, Kolkata – 107, P.S. Kasba
Ruby General Hospital , Kasba Golpark, E.M.
Bypass, Kolkata – 700 107, P.S. Kasba ,
Represented by Managing Director.
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>> J U D G E M E N T <<
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This application under Section 12 of the C.P Act, 1986 has been filed by the complainant Mrs. Rehana Parveen against the O.P-1 Dr. Z.A. Rahman and O.P-2 Ruby General Hospital on the allegation of deficiency in service on their part. The fact of the case as made out in the petition of complaint is that in 2004 a leak on the CBD of the complainant was detected during her operation of Gall Bladder stone performed at Sandeepan Nursing Home ,Midnapore. To cure that problem she was admitted at O.P-2 Ruby General Hospital, where for repairing the leak portion of CBD ,Laparotomy was performed and thereafter all the subsequent treatments were performed and conducted in the said Ruby General Hospital under O.P-1 Dr. Z.A Rahman. After lapse of more than 2 years the complainant suffered from pain in abdomen and swelling around Umbelias. On 20.1.2006 with the aforesaid problem the complainant contacted Dr. Z.A Rahman who examined her at Ruby General Hospital as outdoor patient and advised for some pathological and clinical tests which were conducted at Burdwan and thereafter she again consulted Dr. Rahman on 10.2.2006 and on the same day she was admitted at Ruby General Hospital under Dr. Rahman. From USG Report performed in that Hospital, it was detected that she had problem of one Bulky Uterus and two Venereal Hernia in the lower abdomen. On 11.2.2006 the O.P-1 performed Laparoscopic Hernia operation of the complainant who was discharged from the Hospital on 15.2.2006 with an observation that post operative period was uneventful and some medicines were also prescribed for the patient. For this operation, Rs. 73,164/- was paid by the complainant through the Insurance Company under their cash less medicine policy. The complainant has now alleged that on 15.2.2006 on the date of discharge the complainant felt pain in the operative portion of the body and she was attacked with high fever for which she was discharged in the evening. She was not supplied with any other documents excepting the discharge summary. On 18.2.2006 the stitch from the operative portion was removed by the O.P-2. A few days after her discharge from the hospital she again felt high fever and husband of the complainant immediately contacted the O.P-1 over telephone who prescribed Azithal 250 mg and Fixon to continue for 10 days . After 10 days she again felt ill with high fever and again she consulted the Doctor. After two months of the operation it was found that the stitch of the operative portion was reddish and she felt pain in the operative area and pus was discharging from the wound and it became infected. The complainant contacted the O.P-1 on 20.4.2006 and the doctor advised for some medicine. On 1.5.06, 14.5.06, 3.6.06, 8.7.06 and 17.7.06 during her check up the O.P-2 prescribed some medicines but discharge of pus from the wound continued and pain on the operative portion still existed. The O.P-1 prescribed several medicines but there was no development. Ultimately patient went to Christian Medical College, Vellore where she was admitted on 14.8.2006 and was discharged on 6.9.2006. The doctors of the said hospital explained the operative findings as “Discharging sinus leading on to an abscess overlying a prosthetic material with part of the abscess communicating deep to the prosthetic material on the right side. Foul smelling discharge. Interloop Adhesions”. After post operative period, the complainant had a faecal fistula for which a diversion loop ileostomy was done on 25.8.2006 and thereafter doctors recommended for review in surgery-1 after three months. On 14.11.2006 the complainant was again admitted at that Medical Hospital for repairing his faecal fistula and he was discharged from there on 21.11.2006. She was again admitted on 15.1.2007 for Ileostomy would closure which was performed satisfactorily and the complainant was discharged from the said hospital on 23.1.2007. The complainant has now alleged that due to wrong treatment of Hernia operation by the O.P-1 on 11.2.2006 ,the complainant suffered for the whole year and also was admitted several times to the hospital and ultimately she was recovered on 23.1.2007. The complainant has now prayed for a direction upon the O.P for paying compensation to the tune of Rs.8 lacs due to complainant’s mental agony and harassment and also for litigation cost of Rs.2000/- by the O.Ps. The O.P-1 Dr. Z.A Rahman has contested the case filing written version denying all the material allegations of the complainant. He has contended that no consideration has been paid by the complainant for her treatment in the O.P Hospital or to the O.P-1. As such the complainant is not a consumer within the meaning of this Act. He has contended that the petition of complaint does not disclose any medical negligence or deficiency in service and it has been filed merely out of greed as a speculative venture without any genuine cause. The case of the O.P-1 is that the complainant was admitted under him in O.P Hospital on 10th February, 2006 with a complain of swelling and pain in his lower abdomen which she had since last 10 months. Before admission the complainant consulted him and he advised her for some investigations including Ultra Sound of the whole abdomen and the complainant was diagnosed the case of Ventral Hernia (Incisional Hernia) and it was considered proper to repair the Harnia Laproscopically using dual mess and this procedure is commonly followed nowadays to repair Hernia . The surgery was performed successfully and practically there was no post operative complication, only she had developed drug induced allergic reaction i.e itching with rash and fever which on observation was duly taken care of and treated by administering necessary medicines. Such reaction is also a known complication of Antibiotic Drug. The Surgery was done on 11th February, 2006 and after close observation ,clinical examination from time to time, the patient was discharged on 15.2.2006 as she was then found to be stable. On 18 . 2 . 2006 after examining the patient the surgical wounds seemed to be healthy and her skin stitches was removed by the O.P-1 on the same day and she was advised to continue antibiotic ,anti inflammatory and other medicines. It was mentioned in the discharge advice. The O.P-1 had examined the patient again on 20.4.2006 in the out patient department when she came with a complain of pain around one of the incisional site. The O.P-1 advised antibiotic for the wound infection (subcutaneous)as observed and asked her to report back after 2 weeks. He again examined the patient on 1.5.2006 in the out patient department and on examination inflammation was found to be reduced and he advised her to continue antibiotic for a further period of 10 days in addition to other medicines. Thereafter on 14.5.2006 he examined the patient and found the infection was persisting and advised wounds swab for culture and blood sensitivity and also advised her to continue antibiotic. Patholotical report of wound swab given on 16.4.2006 was shown to him on 3.6.2006 and he then changed the antibiotic after studying that report. On 8.7.2006 the patient again visited him when he advised again wounds swab examination to ascertain the type of bacterial infection and also prescribed necessary medicines till the report was available. The patient came on 17.7.2006 and the report revealed that the patient was infected with different bacterias than what was before. To mange this condition he prescribed appropriate antibiotic according to the bacterial sensitivity and also advised her to come after 10 days to ascertain the response of the prescribed drug and to consider future line of treatment. But the patient thereafter never turned up and since then he was in complete darkness as to the condition of the patient. He has further contended that the operative wound infection is a known complication and advice of antibiotic to prevent and treat infection is standard medical protocol. The duration of infection cannot be foreseen in medical science which depends on various factors. Recurrence of bacterial wound infection commonly occurs as the skin is exposed to bacteria. His further contention is that the patient developed intraabdominal fluid collection following laparoscopic cholecystectomy for gall bladder stone performed at a Nursing Home in Midnapore. In 2004 he performed a exploratory laparotomy by an upper abdominal incision. He has denied that he conducted repair of leak of CBD as alleged. His further contention is that there was no leak in CBD as revealed in the ERCP report and such fact can be ascertained if the ERCP report is produced by the complainant. His further demand is that the exploration had successfully been done . He has claimed that the clinical summary , diagnosis and the advice disclosed in the discharge summary delivered from the O.P Hospital are true ,proper and correct. On 15.2.2006 the patient had no high fever and he was afebrile and before giving discharge advice patient was also examined by the physician to whom he referred as a measure of abandon caution keeping in view of the drug allergy. The O.P no.1 has denied that husband of the complainant consulted him over phone intimating that his wife fell ill with high fever. He also denied that he prescribed medicine over phone. He has denied that patient had no other alternative but to go to Vellore . He has contended that patient of her own choice to go to Christian Medical College at Vellore ignoring the advice given by him and also denying the opportunity to study the response of the medicine prescribed by him to treat the patient. He has not admitted the correctness and observation made by the Christian Medical College, Vellore. According to him , the development of Faecal Fistula as alleged has no bearing with or any way related to the surgery performed by him. He has claimed that there was no negligence or lack of care or error in treatment performed by him and his associates and he has prayed for dismissal of the case with cost and has stated that quantum of compensation claimed is not supported by any evidence. The O.P-2 has also contested the case filing written version. It has contended that the O.P Hospital is neither a natural person nor a juristic person and as such no legal proceeding against the name of the hospital is maintainable. It has further contended that the petition of complaint neither discloses any grievance nor any specific case of deficiency of service against the O.P Hospital and as such there is no scope to claim any compensation against the Hospital. Without any genuine reason only to harass the management of the hospital this complaint has been filed to take some wrongful gain out of sheer greed. It has denied that on 18.2.2006 the O.P-2 removed the stitches from the operated portion of the patient. It has prayed for dismissal of the case with compensation and has also adopted the written version filed by the O.P-1. The complainant and the O.P-1 filed their respective evidence on affidavit. O.P-2 did not file any evidence but adopted the evidence adduced by the O. 1. Parties have also field their respective questionairs and reply. Point for decision in this case is whether the case against the O>Ps is maintainable and whether the O.Ps are guilty for medical negligence and deficiency on their part and if so, what amount of compensation the complainant is entitled to. Decision with reasons: The Ld. Advocate appearing for the complainant submits that the complainant was operated for Gall Bladder Stone in the year 2004 at Nursing Home at Midnapore and a leak occurred on CBD during the aforesaid operation. For curing the said problem the complainant was admitted in Ruby General Hospital and her treatment was conducted by Dr. Z.A Rahman ,the O.P-1 of this case. The O.P-1 to close the leak portion of CBD performed Laparotomy. After lapse of two years of the said portion the complainant suffered pain in abdomen and swelling umbilious and contacted O.P-1 on 20.1.2006 and after several pathological and clinical tests as advised by O.P-1, complainant was again admitted at Ruby General Hospital on 10.2.2006 . USG report dated 20.1.2006 performed in that hospital disclosed bulky uterus ,vental hernia in the lower abdomen of the complainant and the complainant was operated again by way of Laparoscopic Hernia and repaired on 11.2.2006 by the O.P-1 and she was discharged on 15.2.2006 and for that purpose, Rs.73,164/- was paid. On 15.2.2006 the patient felt high fever and pain in the operative portion of the body and her stitch was removed in the said hospital from the operative portion by the O.P-1. After few days as complainant felt high fever ,the O.P-1 was consulted to prescribe some medicines. The Ld. Advocate alleges that after two months of the operation of Hernia by the O.P-1, complainant found that the said stitch of the operated portion had become redish and the complainant felt pain in the operated area and Pus was found discharging from the wound which became infected. The O.P-1 was contacted who advised to take some medicines and thereafter the complainant came to the Hospital for checking on 15.6.2006 ,14.5.06, 3.6.06, 8.7.06,and17.7.06 but discharging of pus from the wound continued and pain in the operated area did not stop. The O.P-1 prescribed certain medicines but there had been no development of the patient. Thereafter the complainant went to vellore where she was admitted at Christian Medical College , Vellore, on 14.8.2006 and was discharged on 6.9.06 . Faecal Fistulla was found after post operative period for which a diversion loop was done on 25.8.2006 and again she was admitted to the said hospital on 14.11.2006 for repair of Faecal Fistula and was discharged from the said Hospital on 21.11.2006. Again she was admitted to that hospital on 15.1.2007 for iliostomy wound closure which was performed satisfactorily and she was discharged from the hospital on 23.1.2007. The Ld. Advocate submits that due to wrong treatment of Hernia portion by Dr. Z.A Rahman which was conducted on 11.2.2006, the complainant suffered throughout the year and was admitted several times in the hospital and ultimately she was recovered on 23.1.2007 from Velore. The Ld. Advocate further alleges that O.P no.1 Dr. Z.A Rahman did not take proper care and attention at the time of treatment of the complainant. As a result the complainant suffered and the operation could not be successful. The complainant spent huge amount of Rs. 3 lacs and had to sustain unbearable physical trouble. For the wrong treatment the complainant was being harassed both physically and mentally and financially. He has therefore prayed for compensation along with treatment cost and litigation cost. The Ld. Advocate appearing for the O.P-1 submits that the main allegation of the complainant is that due to wrong Hernia Operation she suffered and she had post operative wound infection for which she went to Vellore for treatment. She has also alleged that operation was done wrongly by the O.P-1 and it was unsuccessful operation. The Ld. Advocate submits that post operative infection is known complication and advice of Antibiotic to prevent infection is standard medical protocol and duration of infection cannot be foreseen. According to him, recurrence of bacterial wound infection commonly occurs as the skin is exposed to bacteria and in this case , to manage the condition appropriate antibiotic according to bacteria sensitivity was prescribed and the O.P-1 advised the patient to come after 10 days to ascertain the response of drug and to consider future line of treatment but she never turned up. The Ld. Advocate further submits that the complainant has questioned the surgery done by the O.P-1 alleging that the treatment was wrong. The Ld. Advocate refers to the evidence on affidavit furnished by O.P-1 stating in details about the surgery done by him and post operative treatment advised by him. The Ld. Advocate further submits that in absence of any expert opinion or expert’s evidence to support medical negligence there is no scope to hold that doctor who is a master in surgery is guilty or negligence or there had been any wrong treatment. The Ld. Advocate also submits that complainant does not disclose in his pleadings pinpointing the negligence meaning thereby surgery performed or medicine advised or treatment given by the O.P-1 was not in accordance with the standard norms or what he has done is not accepted by standard treatment as per medical text book. According to him , mere allegation without making out specific case and proving the same by proper evidence, it is not enough to hold that a doctor is guilty . In this case, the diagnosis was inceisional hernia , for which laparoscopic repair done and patient was stable and medicine and other advice was given. The documents furnished by the complainant itself will prove that doctor had prescribed medicines (antibiotic) , changed medicine and advised pathological tests. According to him, in this case there is no iota of evidence or authentic documents or medial opinion or sufficient opinion suggesting any wrong or negligence. The O.P-1 in para 10 of the written version stated that it was incorrect to allege that there was leak in CBD. He further submits that the complainant is required to produce ERCP report that there was leak in CBD but he has not produced the same. His further argument is that the correctness of the finding of CMC Vellore has not been admitted by the O.P-1. According to the Ld. Advocate all grievances of the patient cannot take the shape of consumer dispute unless the grievance is raised before service provider and there is any reply from the service provider. In the present case, grievance has been raised for the first time before the Forum before lodging any complaint against the person from whom compensation is claimed. The onus heavily lies on the complainant to prove that the O.P-1 and the hospital are guilty of medical negligence including wrong treatment and for that purpose, expert evidence is most necessary to satisfy the Forum that treatment given by the Doctor and the surgery performed by the Doctor or the medicine prescribed by him upon clinical examination cannot be approved as per medical opinion based on medical text book. In the instant case the complainant has miserably failed to pinpoint the negligence and to prove the same through expert evidence. Considered the submissions of the Ld. Advocates for both sides. Admittedly the complainant of this case was admitted at Ruby General Hospital under O.P-1 Doctor Z.A Rahman and it has not been disputed that the complainant spent considerable amount of money in connection with her treatment at Ruby General Hospital under Doctor Rahman. That being so, The complainant is a consumer and the O. nos. 1 and 2 are service provider to the complainant. It is now settled principle of law that to prove medical negligence on the part of the doctor or the hospital the complainant is required to prove it with sufficient document. In this case, the allegation that surgical operation was done by the O.P-1 was not in accordance with the prescribed norms established under medical science or the medicines prescribed for her treatment were wrongly prescribed has not been supported by any evidence of an expert. In this regard much reliance has been placed upon the findings of Christian Medical College, Vellore, but in that finding no where it has been stated that the course of action taken by the O.P-1 in regard to the treatment of the complainant was erroneous. That apart, any error of judgement in the matter of diagnosis or any mistake in prescribing medicine on the part of a doctor itself is not sufficient to hold that there was medical negligence. The complainant has failed to establish what was required to be done but that has not been done or what has been done that was negligently done. We are sorry to note that not a single medical text book has been referred to us to show that any particular drug not necessary for the treatment of the complainant was prescribed and administered upon the complainant or such particular drug which ought to have been prescribed has not been prescribed by the doctor intentionally. For medical negligence a specific case of negligence has to be alleged and then proved. Only because she continued her treatment at Vellore Hospital and has become permanently cured from that treatment is not a proof of medical negligence of O.P-1. The complainant did not file any expert opinion or adduced evidence of any expert from any medical literature that the O.P-1 had been negligent in performing his duty as a physician or as a Surgeon though it appears that the O.P-1 continued the treatment for long period and on several times changed the medicines. The complainant has to allege which action of the O.P-1 was not as per the accepted medical practice and what was done which should not have been done or what was not done which should have been done. This has to be supported by medical evidence or medical literature on the subject. Nothing on this line has been done in the case. In the result, we are of the opinion that no case of medical negligence has been proved in this case against the O.Ps. In fact, no allegation has been made against the O.P-2 and as such the case is also liable to be dismissed against it. Hence Ordered That the case be and the same is dismissed on contest without cost. Member Member President Dictated and corrected by me President