State Consumer Disputes Redressal Commission
Habiba Aktar vs Microlap on 21 March, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/488/2016 ( Date of Filing : 15 Nov 2016 ) 1. Habiba Aktar W/o Sahabuddin Biswas, Vill. - Hatkhola, P.O.- Mahakhola, P.S. - Chapra, Dist. - Nadia, Pin - 741 123. 2. Sahabuddin Biswas Husband of Habiba Aktar, Vill. Hatkhola, P.O.- Mahakhola, P.S. Chapra, Dist. Nadia, Pin-741 123.(Stands deleted as per order No. 3, Dt.-04/07/2017) ...........Complainant(s) Versus 1. Microlap 24, Bepin Pal Road, Kolkata - 700 026. 2. Dr. Gautam Khastgir Medical, Registration no. 44098(WBMC) Team involved treatment, Microlap, 24, Bepin Pal Road, Kolkata- 700 026. 3. Birth, Unit of Bengal Infertility & Reproductive therapy Hospital Pvt. Ltd. 36 B, Elgin Road, Kolkata - 700 020. ............Opp.Party(s) BEFORE: HON'BLE MRS. Dipa Sen ( Maity ) PRESIDING MEMBER HON'BLE MR. AJEYA MATILAL JUDICIAL MEMBER PRESENT: Dr. Kunal Saha (A/R), Advocate for the Complainant 1 Avishek Mondal, Advocate for the Opp. Party 1 Ms. Binota Roy, Advocate for the Opp. Party 1 Ms. Binota Roy, Advocate for the Opp. Party 1 Dated : 21 Mar 2023 Final Order / Judgement Hon'ble Mr. Ajeya Matilal, Judicial Member
The Complainant Habiba Akhtar filed the instant Application u/s 17 of the Consumer Protection Act 1986 against Opposite Party No. 1 Microlap, 24, Bipin Paul Road, Kolkata - 700026, Opposite Party No. 2 Dr. Gautam Khastgir, Opposite Party No. 3 Birth, a Union of Bengal Infertility and Reproductive Hospital Pvt. Ltd.
The Complainant Case is, in short like that she was admitted to Opposite Party No. 1, namely Microlap after consultation with Opposite Party No. 2 Dr. Gautam Khastgir at Birth, being the Opposite Party No.3.
The complainant alleged that after reviewing the documents of all her medical treatment by other Hospitals/Nursing Homes, the Opposite Party No. 2 advised for some clinical diagnostic tests. The Complainant stated that they did not want IVF or Surrogacy. The Opposite Party No. 2 did not advise to repeat the Hysterosalphinograph. Although the Complainant stated that they did not want IVF etc., but the Opposite Party No. 1 assured them that it would be a normal surgical procedure. The Complainant was not in a position to understand the meaning of Lap Tubal surgery and Hysteroscopy, which were prescribed on 26.05.2015.
The Complainant got admitted on 08.06.2015 for above-mentioned gynaecological surgery at Microlap on 09.05.2015. After consultation and assurance by the Opposite Party No. 2, the Complainant was admitted to Birth/Opposite Party No. 3 on 26.05.2015. The Complainant at the time of admission signed on an Admission Information Form and standardised Consent Form for Operation, Anaesthesia and Special treatment, as a written formality.
The Complainant was directed to deposit a lump sum amount for the purpose of ongoing treatment on the date of admission i.e. 16.03.2015.
The Complainant alleged that the consent form was filled up by others and the contents were not explained to them. So, it is an invalid consent form.
In the Discharge Summary it was written that diagnosis was sub fertility operation, findings were diagnostic Hysteroscopy Survical Canal Antiverted and deviated towards left with normal Uterine Cavity. It was also mentioned there, that there was diagnostic Hysteroscopy, D/C, specimen sent for TB-PCR and BACTEK Culture, Laparoscopic Adhesiolysis, bilateral Tubal clipping and removal of caseous material.
At the time of discharge, the Opposite Party No. 2 advised with tablet AKT-4 to take and advised to start it on 11.06.2015. TB-PCR Report dt. 02.07.2014 was normal after proper treatment.
At the time of surgery, Dr. Gautam Khastgir sent specimen for TB-PCR culture. From the report dt. 22.07.2015, it was found that TB-PCR was not detected. But the claimant was aggrieved that Dr. Khastgir had done Tubal Clippings. So, the Complainant was to depend on IVF in case of fertility.
The Opposite Party No. 2 advised her on discharging on 11.06.2015 not to stop to take any medicine without advice from Doctors. She was also asked to attend Clinic at Birth on 16.07.2015 at 10.10 A.M. and follow up with TB-PCR report from Birth and Histopathology Report from Microlap. So, the Complainant filed this Case praying for holding the Opposite Parties, jointly and individually, liable to the Complainant and prayed for damages/compensation and punitive/exemplary damages.
The Opposite Party No. 1 contested the Case by filing Written Version denying the material allegation of complaint alongwith the technical plea. Opposite Party Nos. 2 & 3 contested the Case by filing a Written Version, denying the material allegation of the claimed petition along with the technical pleas. It has been stated that Opposite Party No. 2 was one of the Senior-most Gynaecologist in the Country and he received initial training in Gynaecology for 7 years in UK. His work was recognised by Royal College of Obstetrician and Gynaecologist.
Although the Complainant purported to disclose the medical treatment records and other papers for her treatment, but the same was not disclosed in full.
According to them, to adjudicate the complicated matter of medical negligence, evidence of experts are required and some parts of the same have been concealed with malafide intention.
According to them the Complainant consulted with Doctor/Opposite Party No. 2 at Birth/Opposite Party No. 3 clinic, wherein she had presented with past medical history of Tuberculosis in Genital organs, Hypothyroid and EVANS Syndrome. She also showed an Ultra Sound Report dt. 2014, wherefrom it revealed Bilateral tubal block.
She also complained of excessive white discharge, which was clearly indication of active infection. The Opposite Party/Doctor concerned told the Complainant that she had two alternatives, namely IVF and Surrogacy, or operation in the form of Laparoscopy, Hysteroscopy and TB PCR and she was advised to choose the treatment option.
The Complainant preferred to undergo surgery rather than IVF and Surrogacy, which would reveal from the prescription dt. 19.03.2015, annexed with the petition of complainant. She was advised necessary tests and tentative expenses for this surgery at Microlap were also intimated to her, which would reveal from the running Page No. 20 of the Annexure of the Complaint.
Thereafter the Complaint visited the chamber of Opposite Party No.2/Doctor at Birth/Opposite Party No.3 on 26.05.2015, wherein the decision was taken for Laparoscopic Tubal Surgery together with Hysteroscope. She was advised for admission at Microlap Nursing Home/Opposite Party No. 1 on 08.06.2015 for surgery on 09.06.2015. The Complainant underwent all necessary pre-operative medical treatment.
The Complainant duly signed the Consent Form dt.08.06.2015 at Microlap. It was explained to her and understood by her that Opposite Party No. 2/Doctor intended to perform a diagnostic Laparoscopy with Hysteroscopy and depending on the findings thereafter, Opposite Party No.2 planned for Tubal Clipping or surgery by way of releasing the Tubal Blockage. The Operative findings revealed dense adhesions between bowel, omentum, uterus and both adnexa. Although the Uterus was found normal in size, there was presence of bilateral TO mass and bilateral dialated fallopian tubes. Considering the situation, Opposite Party No.2/Doctor took the specimen for TB-PCR and BACKTEK Culture and done bilateral Tubal Clipping along with removal of caseous material. TB PCR testing the specimen was sent to Birth for Histopathology Examination. But the Histopathology Examination was done by Microlap itself. The Complainant was thereafter discharged on 11.06.2015 with specific advice to review on 16.07.2015 along with the TB PCR Report and Histopathology Report. The Complainant visited for follow up action on 16.07.2015 along with the said reports. But the results were negative.
According to the established Medical Practice Anti TB treatment can always be initiated when there is Laparoscopic evidence of TB in spite of negative TB PCR, Culture and HPE report.
The Complainant was advised to continue with anti TB therapy at the time of discharge from the Opposite Party/Nursing Home. But the Complainant never bothered to follow up with the Opposite Party/Doctor. The Complainant and her husband never turned up for any follow up. According to the Opposite Parties the Complainant was treated as per accepted medical protocol. Tubal Block is common after Tuberculosis infection. The complainant was already diagnosed with TB and was under medication for the same. The Doctors were on visit regarding the findings of the previous HSG Report, which was shown to the Complainant during her first visit to the Opposite Party Doctor. So, advice was given for repeating the same investigation. It would reveal from the medical literature that in cases of active TB, HSG, being a blind investigation, may flare up the illness in comparison to Laparoscopic intervention, which is more accurate and definitive as it provides an opportunity to physically see in own eyes as opposed to HSG, which gives just a shadow image. According to the OPs, both the complainant and her husband did not prefer to go for IVF or Surrogacy. But they finally agreed to consider this treatment at the time of counselling for obtaining consent on that day before surgery at Microlap under procedures and their prognosis was explained, in detail, to them.
The matter of Laparoscopic Tubal surgery and Hysteroscopy were duly noted in the prescription, which was categorically explained to the patient and her husband. It is denied that the Complainant was compelled to sign on the blank form and she was not made to sign on any such complaint form. The Laparoscopic features of advance Pelvic TB were noted, which required further anti TB treatment. So, the Opposite Party No. 2/Doctor advised to initiate anti TB therapy and prescribed Tablet AKT 4.
Although the Laboratory Reports were found negative, but the Opposite Party No. 2/Doctor during the surgical procedure noted presence of Pelvic Tuberculosis. During the diagnostic laparoscopy the presence of TB in the Pelvis was very much evident. This specimen tested was from endometrial tissue of Uterus. The patient was suffering from TB in Pelvis region prior to visiting the OPs for treatment. The Tubal Clipping was done with consent of the Complainant and it was done to avoid any damage to the Uterus. The Tubal Clipping was done to prevent further damage and further spread of infection to Uterus.
As per medical protocol, the patient underwent LFT and reports were normal. So, she was advised to start medication, as TB-PCR and BACTEK culture were not done in the Laboratory of Opposite Party No.3. So, the samples were sent to an outside Laboratory, wherefrom the reports were collected and given to the patient when they visited the clinic of the Opposite Party No. 3.
The Doctors did everything as per standard medical procedure. The Complainant developed post operative symptoms as she has refused to take AKT. Adequate and effective care and caution was taken by the Opposite Party in course of treating the Complainant.
As the Fallopian Tube of the Complainant was blocked and irreversibly damaged, there was no possibility of causing further damage of those Tubes and the said tubes were clipped to avoid further damage of the Uterus. Although IVF treatment is relatively expensive, but many patients were offered for treatment on humanitarian ground. The Complainant was negligent, as she did not continue with Anti TB Therapy. Evidence of TB in Fallopian Tubes and Ovaries was confirmed on the first day of visit of the Complainant.
As per medical literature, an Anti TB Therapy should be started on the basis of Laparoscopic findings, like the test as TB-PCR and BACTEK Culture.
The Complainant miserably failed to appreciate the symptoms of genital TB that the symptom of genital TB were often signed but in the instant case, the features were signed in both symptoms and all signs of the patient.
It is alleged in the complaint that the Complainant was unable to render proper care to Husband and the two minor children. According to the Opposite Parties, the Complainant failed to establish that he was deficient in service on the part of the OP No. 2 & 3 and they prayed for dismissal of the Complaint Case.
Evidence has been adduced on behalf of the Complainant, and Opposite Party No. 2 and 3. Opposite Party No. 1 is also adduced evidence.
The Points for consideration is that:
Whether the Complainant is a consumer?
Whether there was any deficiency in service on the part of the Opposite Parties?
Is the Complainant entitled to relief as prayed for?
Authorised Representative for the Complainant submitted that the Opposite Parties performed deceptive Trade Practice and violated "Code of Ethics and Regulations 2002". According to him, the Complainant previously have no knowledge about the sole claimed infertility expert being the Opposite Party No. 2 and his clinic i.e. Opposite Party Nos. 1 & 3 until they saw a full page advertisement with a large picture of Opposite party No. 2/Doctor and his clinics in a local daily newspaper, where he claimed that he was the best Doctor for infertile couples and his clinic would provide all necessary treatment to help the infertile wives to be pregnant. The M.C.I. Code of Ethics and Regulations 2002 [6 (i)] categorically stated that no doctor should advertise or promote himself/herself through advertisement.
As per section 6.1.2 of the said Code, there is a prohibition against printing of photograph of a Doctor in any advertisement. Apart from violating the M.C.I. Code, the Opposite Party No. 2/Dr. Made deceptive and misleading public advertisement. So, the Opposite Party No. 2 is guilty of unfair trade practice under Section 2 (1)(r) of Consumer Protection Act 1986. But the Ld. Advocate for Opposite Party No. 2 & 3 submitted that these arguments advanced by the Authorised Representative were beyond pleading, because nothing has been reflected in the complaint in this regard. In this context, the Ld. Authorised Representative referred to the case of Balaram Prasad Reported in 2014 in Hon'ble Supreme Court Case 384.
It appears from the aforesaid decision at Para 70 of the Judgement, that the Hon'ble NCDRC has rejected the entire claim on the sole ground that since the additional claim was not pleaded earlier, so none of the claims, made by the claimant, can be considered. The Hon'ble Supreme Court observed that the Hon'ble NCDRC was wrong in rejecting different claims without consideration and in assuming that the claims made by the claimants cannot be changed or modified without prior pleadings under any other conditions. But this is not the case of making any additional claim.
So, aforesaid decision is not applicable to the facts and circumstances of this case. It will not be out of place to mention the matter of aforesaid advertisement has not been mentioned in the pleadings of the complainant. So, the arguments advanced by the Ld. Authorised Representative are beyond pleading.
The Ld. Authorised Representative stated that the Opposite Party No. 2 noted that the patient had a Hysterosalpingography (HSG) with Bilateral Tubal Block in 2014 and he assured that he would do everything fine by "Laparoscopy Hysteroscopy and TB-PCR" and the patient told Opposite Party No. 2 categorically that she did not want IVF and SURROGACY to become pregnant.
Our attention was drawn to Annexure 'A' of the Complainant wherefrom it appears that the patient "does not want IVF and Surrogacy".
So, the Complainant was happy believing that she would become pregnant naturally after Opposite Party No. 2 clear the block in her Fallopian Tube following the surgery promised by the Opposite Party No. 2. The main contention of the Opposite Party No. 2 is that Opposite Party No. 2 performed a total Bilateral Tubal Clipping. During the Tubal Surgery of the patient, as recorded in the "Advice at discharge" on 11.06.2015 making the Complainant permanently unable to get natural pregnancy.
The Ld. Authorised Representative submitted that the basic clinic management for the patient was grossly inadequate which would appear from the scanty bed-head ticket during her 4 days of stay at the Opposite Party No.1 Hospital. Patient's basic vital signs i.e. blood pressure, temperature, heart, pulse rate, respiration rate were measured less than once per day.
The Ld. Authorised Representative referred to the case of Malay Ganguly vs. Sukumar Mukherjee and others in (2009 SCC9 221). In that decision, Hon'ble Apex Court held that "If vital signs are not recorded in the Hospital record, the deficiency in service emanates therefrom" (para 155) and failure of the treating Doctor to monitor the vital signs regularly is "certainly an act of negligence" "para 163". It is also argued that wrong and potentially dangerous anti TB medicine (AKT 4) was advised for the patient, although the patient was repeatedly found TB-PCR negative.
According to Authorised Representative, two contradictory advices for use of AKT 4 drug were found in two separate "discharge". In the advice of discharge on 11.06.2015, there was an advice to bring the TB-PCR report and on advice dated 16.07.2015, it was suggested that the anti TB drugs would be started. In another discharge advice, the patient was advised to start AKT 4 from 11.06.2015, on the date of discharge without knowledge about the TB status of the patient.
In reply the Ld. Advocate for the Opposite Party No. 2 & 3 submitted that Tubal Block is common for Tuberculosis infection. The Complainant was already diagnosed with TB and was under medication for the same.
Under these circumstances, the Opposite Party/Doctor had some doubts regarding findings of HSG report which were shown by the complainant during her first visit to Opposite Party No. 2/Doctor. According to the Ld. Advocate as per established procedure of medical treatment in cases of active Tuberculosis HSG is a blind investigation, which might flare up illness in comparison to Laparoscopic investigation. Laparoscopic investigation is much more accurate and definitive, since it provides an opportunity to physically see with own eyes as opposed to HSG which gives just a shadow image.
In this context, Jai Bhagwan Sharma, Sharma's Python Sign: New Tubal sign in Female Genital Tuberculosis, 2016 Journal of Laboratory Physicians was referred.
So, in our view, there is nothing irregular in performing the aforesaid test by the Opposite Parties. Laparoscopic Tubal Surgery is a surgical sterilisation procedure in which women's Fallopian Tubes were either clamped or blocked or severed and sealed, while Hysteroscopy is a procedure to examine the inside womb.
After reviewing through Hysteroscopy, the Opposite Party No. 2/Doctor decided to perform the said Tubal Ligation. The procedure was duly noted in the prescription and categorically, explained to the patient and according the Opposite Party this one was accepted and standard procedure for diagnosis Tuberculosis. The Ld. Advocate for the Opposite Parties submitted that it was not true that the Complainant and her husband were unable to understand and appreciate the surgical procedure intended to be performed.
According to this Opposite Party No.2, procedure was explained to the Complainant by the Opposite Party/Doctor. It is also vehemently denied by the Opposite Parties that the Complainant was made to sign on blank form. The Ld. Authorised Representative for the Complainant referred to the case of Binod Khanna R.G. Stone, Urology and Laparoscopy Hospital Organisation and others. In that case in the Judgement dt. 06.07.2020, the Hon'ble NCDRC observed that pre-printed consent form having blank space is administrative arbitrariness and one-sided highhandedness. It held that the Hospital was guilty for using this printed consent form, even though, they were not guilty of medical negligence.
Apparently it goes without saying that the Complainant signed on the consent form. But there is very little scope for them to deny the contents of the consent form. It is very difficult to understand as to why the Complainant urged to sign on a blank consent form. At the time of diagnostic laparoscopy, the presence of Tuberculosis in the Pelvis was very much evident and specimen was tested from endometrical tissue of Uterus (HPE). According to the Opposite Parties, the decision was taken by them to ensure that the uterus was normal and healthy to undergo IVF in near future, if the couple wish to opt for.
It would reveal from the HPE reports, annexed with the complaint that it did not necessarily indicate the absence of Tuberculosis in the Pelvis, from which the patient was already suffering from, even prior to visiting the Opposite Parties for treatment and had been under medication for the same prior thereto.
According to these Opposite Parties, the Tubal Clipping has been done with the consent of the Complainant. The patient was taken there to avoid any damage to the uterus, which was intact as compared to the Fallopian Tubes. The Fallopian Tubes already reached irreversible stage of damage due to genital Tuberculosis. According to the Opposite Parties Tubal Clippings could not cause any further damage, but could prevent further spread of infection in the uterus.
The Book of Genital Tuberculosis edited by Gita Ganguly Mukherjee Jaypee Publication 2010 is referred to. According to the Ld. Advocate for the Opposite Parties, the Opposite Parties accepted medical protocol, as per the aforesaid book, prior to advising initiation of medication of Tuberculosis. As per medical protocol, the patient has undergone LFT and the report was normal.
So, the Complainant was advised to start such medication. The Ld. Advocate for the Opposite Parties referred to a decision of Hon'ble NCDRC, 2014 (2) reported in CPR 340 (NC), wherein it was held "Doctor who used his best professional skill and knowledge and took due care and caution could not be held liable for medical negligence." It is alleged by the Complainant that the anti TB therapy was started getting the reports showing absence of mycobacterium". But it appears that there was confirmed evidence of Tuberculosis in the Fallopian Tubes and ovaries, which was detected on the very first day visit of the Complainant.
According to the Ld. Advocate for the Opposite Parties it would reveal from the literature referred that anti TB therapy should be started on the basis of Laparoscopic findings as the test like TB-PCR and BACTEK Culture were not sensitive enough. It is also submitted by the Ld. Advocate for the Opposite Parties that "Female genital organs were affected by Tuberculosis in order of frequency are Fallopian Tube (90-100%), Endometrium (60-70%), Ovaries ((20-30%), Cervix (5-10%) are rarely vagina and valve (1-2%) still one of the leading causes." According to the Ld. Advocate for the Opposite Parties the medical science reveals that genital Tuberculosis usually has symptoms with infertility being its commonest presentation.
According to the Ld. Advocate for Opposite Parties it would reveal from the Medical Literature, "The Journal of Obstetrics and Gynaecology of India" that the most reasonable tool of diagnosis to FGTB is Laparoscopy combined with Hysteroscopy for more information on Tubal, Ovarian and Peritoneal disease.
According to the Ld. Advocate for the Opposite Parties the multiple drug therapy with adequate doses is the proper treatment of TB including FGTB.
We would like to reiterate the fact that it would reveal from the prescription dt. 19.03.2015 that the patient had Bilateral Tubal Block and she did not want IVF or Surrogacy.
Our attention was drawn by the Ld. Advocate of both sides regarding the Consent Form signed by the Complainant Habiba Akhtar at Page 36 (P-36 of the annexure of the Complainant). It appears from the Consent form Dt. 08.06.2015 that the Complainant had given her consent to undergo Laparoscopy and Tubal Clipping/Surgery Operation under general anaesthesia, which was fully explained to her by Dr. Gautam Khastgir. It was mentioned in the Consent Form that all the anaesthetic and surgical hazards which may happen during and after the operation have been clearly explained to her by Drs. Shauvik Nandi & N. P. Halder. The hospital authority, surgeon, anaesthetist, Nursing staff shall not be held responsible for any mishap during operation and post operative stay in the hospital.
West Bengal Medical Council investigated into the complaint, lodged by the Complainant against the Opposite Party No. 2/Dr. Gautam Khastgir:-
It would reveal from the report -
Observation:-
"Patient Mrs. Habiba Akhtar went to Dr. Gutam Khastgir's Clinic with the problem of infertility. Previously she had taken treatment in other centre also without any success. She had previous history of tuberculosis and her HSG showed tubal blockage. Dr. Gautam Khastgir gave her 3 options (i) IVF, (ii) Surrogacy and (iii) Operation in the form of Laparoscopy + Hysteroscopy + TB-PCR with the view to try to open the blockage and give a chance for normal conception. But while doing Laparoscopy it was found that there were dense adhesion and bilateral dilated fallopian tubes blocked by caseous material. Both tubes were clipped and on clinical basis, anti-tuberculosis treatment was suggested along with sending material for further investigations like TB-PCR and BACTEC Culture. The reports were negative. Patient didn't start ATT. Now the patient's complaints are two:
Why without confirmation of diagnosis ATT was suggested? Doctor's view is that it is the usual protocol to start the ATT if there is strong clinical evidence.
Why both side tubes were clamped stopping future chance of Natural Conception? Doctor's version is that as both tubes were filled with caseous materials, there was no chance of future opening of the tube. Also there was every chance of spread of disease without clamping to uterus which was normal at the time of operation.
After going through all the documents, depositions of doctor and complainant, the P&E Committee is of the opinion that there is no evidence of negligence on the part of the treating doctors."
The West Bengal Medical Council, at its meeting dated 27.03.2019, considered the report of the concerned P&E Cases Committee and concurred with their observation that there was no evidence of negligence on the part of the treating doctor and accordingly, decided to close the case with intimation to all concerned.
The Authorised Representative for the Complainant submits that Hon'ble Supreme Court in India in the land mark Judgement of Malay Ganguly held that Ld. Court cannot decide a case of alleged medical negligence based on opinion of medical expert. Any medical opinion for or against must be judged on its reasonableness and appropriateness and at best it may only form a piece of evidence. the Ld. Authorised Representative also referred to a decision of Hon'ble NCDRC in the case of Anil Dutt and another vs. Vishes Hospital and others (CC No. 221/2010), wherein the Hon'ble Court categorically held that medical experts are often reluctant to testify against their colleagues. He submitted that it is a conspiracy of silence. Ld. AR referred to the case of Samira Kohli reported in Supreme Court Cases, 2008 (2SCC). The AR submits abdominal hysterectomy and bilateral Salpingo-oophorectomy was not necessitated on account of any emergency of life threatening situation developing or being discovered when the Laparoscopic test was conducted.
The Ld. Advocates for the Opposite Parties submitted that according to an agreed plan, consented by the complainant the aforesaid operation was done. Although the AR referred to the case of Vinod Khanna vs. R.G. Stone Urology & Laparoscopy Hospital and others (CC No. 408/2018) observed that a pre-printed informed Consent Form having blank space is "an administrative arbitrariness and one handedness." But it would appear that the complainant signed on the consent form with her full consent, which I have discussed earlier, as she admits the execution of an instrument or undertaking so, she cannot deny the contents of the same. The aforesaid decision is not applicable to the facts and circumstances of this case.
The Ld. Advocate for the Complainant referred to the decision of Bolitho vs. City and Hackney Authority [(1998) 1AC 232: (1997)3 WLR 1151: (1997) 4 ALL ER 771 (HL)] explaining the circumstances, when the Court can get away from yet another aspect of Bolam Case reported on (1957) I WLR 582. It was observed, "In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter".
The case of Jacob Mathew vs. State of Punjab reported in (2005) 6SCC 1: 2005 SCC (Cri) 1369 was referred. In the aforesaid decision the Hon'ble Apex Court observed:-
"(i) Mere deviation from normal professional practice is not necessarily evidence of negligence.
(ii) Mere accident is not evidence of negligence.
(iii) An error of judgment on the part of a professional is not negligence per se.
(iv) Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur."
But, in the present case, there is no cogent reason for disbelieving the opinion of medical Expert.
Considering the different aspects of the consent form, medical opinion of Expert, factual scenario of the case along with the position of law cited above, we are of the view that there is no negligence on the part of Opposite Party No. 2/Doctor and as the Opposite Party No. 2 is not negligent so no question of vicarious liability arises in respect of Opposite Party No.1 and Opposite Party No.3. So, there is no deficiency of service or negligence on behalf of all the Opposite Parties.
So, all the points are answered in negative and decided against the Complainant.
Accordingly, the Complaint Case being No.CC/488/2016 is dismissed on contest. There shall be no order as to the costs. [HON'BLE MRS. Dipa Sen ( Maity )] PRESIDING MEMBER [HON'BLE MR. AJEYA MATILAL] JUDICIAL MEMBER