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National Consumer Disputes Redressal
Sikha Nayak vs Dr. Manabesh Pramanick on 20 December, 2005
Equivalent citations: I (2006) CPJ 95 NC
Bench: K G Member, R Rao

ORDER Rajyalakshmi Rao, Member

1. The present revision is arising out of the order dated 30.8.2004 passed by the State Commission, West Bengal in Appeal No. 388/A/2003 whereby appeal by the respondent was allowed and the order dated 26.8.2003 in Complaint No. 45/2002 passed by the District Forum awarding the compensation of Rs. 50,000 was set aside. Aggrieved by the order of the State Commission the complainant is in revision here. Brief facts of the case are.

2. The complainant was suffering from recurring pain in her abdomen and went to Dr. M. Pramanik on 8.6.2001. On his advice she had undergone some tests and investigations. After seeing the reports Doctor diagnosed the disease as Cholesystitis and advised operation by means of the method of Laproscopic chelecystectomy. The said operation was done at Malda Nursing Home on 14.6.2001 and the complainant was discharged on 16.6.2001. Doctor prescribed medicines for 5 days during the post-operative period. After a few days, she felt severe pain in her abdomen and felt that where operation was done there was swelling.

3. The complainant met O.P. on 25.6.2001 and the Doctor changed the dressing in Malda Nursing Home and prescribed some other medicines and advised the complainant/petitioner to come after three days. Thereafter on 28.6.2001, the complainant visited the Doctor fox dressing and after extracting pus, he prescribed the same medicine for a further period of four days. The complainant contended that despite taking these medicines, the swelling occurred again and pus formation continued. O.P. changed the medicine on 7.7.2001 and advised blood sugar test and X-ray test to be done urgently. The X-ray report of Gour X-ray Clinic at Malda Nursing Home revealed that evidence of presence of a Radio Opaque Shadow on the right side L1 vertebral level. The complainant contended that opposite party prescribed some medicine without attaching any importance to the X-ray report.

4. The complainant averred that in spite of taking the medicines, the problems of swelling and pus formation continued and opposite party asked the complainant tobe admitted in another Nursing Home where he also sees patients, i.e., Mahananda Nursing Home on 10.7.2001 and treated her till 15.7.2001. Despite the treatment given second time, the operation spot continued to be swollen and pus formation continued. The complainant visited the opposite party on 1.8.2001 and again on 13.8.2001 but the problem did not subside.

5. Agitated with the rude behaviour of the opposite party and the continued problem, the complainant visited Dr. Kartic Kundu (a Homeopathic Doctor) on 28.9.2001 Dr. Kundu gave some Homeopathic medicines to be taken by her and few days thereafter she found a piece of cloth (gauze) coming out along with pus from the operation spot from within the abdomen of the petitioner.

6. Frustrated by the problem, the complainant rushed to another Allopathic Doctor named Dr. Kalisankar Bhattacharya, M.S. of Raiganj Sadar Hospital on 12.10.2001. It is the say of the complainant that at the time when she was waiting for him, a large piece of gauze (folded cloth) came out from within her abdomen from the spot of the operation. Dr. Bhattacharya attended the complainant in Renukana Polyclinic, Raiganj where he gave dressing to the alleged spot of the abdomen of the complainant and prescribed some medicines. The complainant finally felt relieved after that alleged gauze came out from within her abdomen.

7. Alleging negligence by the O.P., the complainant claimed a total amount of Rs. 3,40,250 under the following heads:

(i) Refund of fees charged by the O.P. in his chamber amounting to Rs. 550 (Rupees five hundred fifty) only.

(ii) Refund the charges of laparoperation and Nursing Home fees on different dates amounting to Rs. 16,000 (Rupees sixteen thousand)only.

(iii) Charges for clinical tests and investigation amounting to Rs. 2,000 (Rupees two thousand) only.

(iv) Hiring of taxi charges on different dates amounting to Rs. 9,200 (Rupees nine thousand two hundred) only.

(v) Prescribed medicines (memo enclosed) Rs. 10,500 (Rupees ten thousand five hundred) only.

(vi) Food and tiffin to the petitioner and her family members accompanied her for treatment on different dates amounting to Rs. 2,000 (Rupees two thousand) only (Approx.)

(vii) Compensation for the loss of time and energy and for suffering physical and mental agony by the petitioner amounting to Rs. 1,50,000 (Rupees one lakh fifty thousand) only.

(viii) Compensation for loss of time and energy and for suffering mental agony by the members of the family of the petitioner's father and husband Rs. 1,50,000 (Rupees one lakh fifty thousand) only.

8. The District Forum although disbelieved the complainant's version of gauze having come out from the operated part of the abdomen, it found some negligence on the part of the opposite party, Doctor. Taking into account the contentions raised, District Forum awarded Rs. 50,000 as compensation payable by the opposite party to the complainant. Out of the five contentions made out by the complainant, three issues were accepted by the District Forum which are given as under:

(3) Whether the petitioner Sikha Nayak had post-operative complications and what type of service was rendered by the O.P.?

(4) Whether the O.P. was negligent and rendered deficiency in service?

(5) Whether the complainant is entitled to get any compensation as prayed for?

9. The District Forum combined issues 3 and 4 above and held that the charge of negligence against the doctor must be taken to be proved. It based the above findings on the grounds-

(a) that there was some inconsistency between the statement of the opposite party doctor and the contents of the discharge certificate;

(b) that there is discrepancy between his evidence and that of Dr. Bhattacharya; and

(c) that the opposite party had not controverted the allegation that he has been sarcastic towards the complainant which frightened the complainant and caused mental agony.

10. In appeal, the State Commission observed that the District Forum clearly held that the main compass of inquiry relating to the alleged negligence namely whether any gauze was left inside the patient during the operation is not at all substantiated.

11. Under the circumstances, subsequent finding by the District Forum that there is some negligence is not at all justified. It held that a case of medical negligence has to be proved by proper medical expert evidence and cannot be based on mere statements of the patient.

12. We have carefully examined whether there is any merit in this finding of the District Forum on issues 3 and 4 above. The so-called discrepancy between the statement of the opposite party doctor and the contents of the discharge certificate is that while the Doctor has deposed that at the time of discharge from the hospital the wound has healed and so he only prescribed vitamins, the Discharge Certificate showed that Doctor has prescribed antibiotics for 7 days along with vitamins. The patient was discharged from the hospital on 16.6.2001 and came to the doctor on 25.6.2001 with complaint of severe pain in her abdomen and swelling on the spot of the operation. Prescribing antibiotics at the time of discharge is as a safeguard to see that the wound heals completely even the doctor is satisfied at the time of discharge that the healing was satisfactory. Unfortunately for the patient, the inflammation continued in spite of constant follow up by the opposite party Doctor.

13. Both the opposite party Doctor as well as Dr. Bhattacharya had clearly mentioned that it is common in a certain percentage of cases for post-operative inflammation to occur. The second discrepancy relied on by the District Forum is that even as late as on 27.10.2001, Dr. Bhattacharya, the Doctor who subsequently saw the patient, also prescribed antibiotics. We do not see any discrepancy in this. It is clear that the inflammation did not subside in spite of all the treatment and that Dr. Bhattacharya also prescribed antibiotics to keep the inflammation under control.

14. The basic fact is that both the lower Fora have clearly held that there is no evidence to indicate that a piece of gauze has been left inside the patient during the operation and that there is no evidence to show that this act has caused subsequent inflammation. Having decided this, the District Forum could not have taken a contrary view that there was negligence in the post-operative treatment unless there was clear expert evidence to support such a finding. There has been no such medical evidence brought on record. On the other hand, the opposite party, Doctor treated her for postoperative inflammation for a period of two months. It is unfortunate that inflammation did not subside. The subsequent Doctor, Dr. Bhattacharya also had to treat her for another 2 1/2 months to control the inflammation. Since there is no evidence whatsoever that the inflammation was because of any deficiency and Doctor did not try to control the inflammation, we have to hold that there is neither any deficiency nor negligence in this case. The revision petition, therefore, fails and the order of the District Forum as regards its findings on Issues 3, 4 and 5 is set aside and complaint is dismissed. No order as to costs.