State Consumer Disputes Redressal Commission
Mrs. Purnima Banik, Dukli ... vs 1. State Of Tripura, (Through The ... on 19 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, TRIPURA Appeal No.F.A-14/2013 Mrs. Purnima Banik, Dukli Bazar,Madhuban, Agartala-799003. . . . . Appellant. Vs 1. State of Tripura, (Through the Secretary, Health and Family Welfare Department, Govt. of Tripura, Agartala). 2. India Gandhi Memorial Hospital, Government of Tripura, Agartala. 3. Dr.B.S.Choudhury, Department of Surgery, Indira Gandhi Memorial Hospital, Government of Tripura, Agartala. . . . . Respondents. PRESENT : HONBLE MR.JUSTICE S.BAIDYA, PRESIDENT, STATE COMMISSION MR.H.CHAKRABORTY,IAS (Retd), MEMBER, STATE COMMISSION. For the appellant : Mr.B.K.Bhattacharyya,Adv. For the Respondents : Mr.A.Sengupta,Adv. Mr.K.Deb,Adv. Date of Hearing : 17.02.2014. Date of delivery of judgment : 19.03.2014. J U D G M E N T
S.Baidya,J, This appeal under section 15 of the C.P.Act, 1986 filed by the appellant, Mrs Purnima Banik on 10.05.2013 is directed against the judgment dated 24.04.2013 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C.-30/2011 whereby the Ld. District Forum dismissed the said complaint case on contest without any cost holding that the District Forum did not find anything that the O.P. No-3 was in any way negligent in operating the gall bladder of the complainant.
2. It has been stated in the memo of appeal that on 25.04.2011 the appellant filed the complaint case being C.C.-30/2011 against the respondents in the Ld. District Forum, West Tripura and on 24.04.2013 the said District Forum most unfortunately dismissed the said complaint. It has also been stated that through the said complaint the appellant depicted the deficiency in service and the negligence in service on the part of the respondent No-3 who had been, at the time of the cause of the action of the said complaint, serving in the respondent No-2 which has been under the respondent No-1, and sought the right compensation from the respondent jointly and severally.
3. The appeal has been filed on the grounds that the respondents admitted that only during the laparoscopic surgery in question the gall bladder was discovered to be a distended one, but did not adduce any evidence whatsoever to show as to why it could not be discovered much earlier and as such it is a clean case of both deficiency and negligence in service on the part of the respondents.
4. It has also been alleged in the memo of appeal that the respondents admitted that after the surgery in question a leakage was there from the injured bile duct, but did not adduce any evidence whatsoever to prove that the respondents were in no way deficient or negligent in respect of the said leakage, and as such it is a clean case of both deficiency and negligence in service on the part of the respondents.
5. It has further been alleged in the memo of appeal that the respondents, at no point of time, disclosed it to the appellant or to her husband that the respondent No-2 did not have the required infrastructure which might sometimes require it to refer the appellant to any other hospital for better treatment, and as such it is a clean case of both deficiency in service and unfair practice on the part of the respondents.
6. Hence, the appellant has filed the instant appeal praying for setting aside the impugned judgment and also allowing the reliefs claimed by the appellant in the petition of complaint filed before the District Forum.
7. The moot point centered round is as to whether the impugned judgment passed by the Ld. District Forum can be sustained in the eye of law.
Decision with Reasons.
8. Considering the cases of the parties, the evidences both oral and documentary, the impugned judgment and the argument advanced by the learned advocate of both sides we find certain admitted facts.
9. Admittedly, the respondent No-1 is the State of Tripura, represented through the Secretary, Health and Family Welfare Department, Govt. of Tripura and the respondent No-2 is Indira Gandhi Memorial Hospital in short known as I.G.M.Hospital, Govt. of Tripura and the respondent No-3 is a surgeon attached to that I.G.M. Hospital at the material point of time. It is also admitted fact that initially the appellant attended the private chamber of respondent No-3 and thereafter, she was treated in the respondent No-2 and her gall bladder operation was done there by the respondent No-3 along with Dr. Tapan Saha,M.S, Dr.Dhruba Banik,M.S, and Dr.Asit Bhattacharya,D.A and others attached to that hospital. It is also admitted fact that appellant, in the first instance, met the respondent No-3 in his chamber with a pain in her abdomen. It is also admitted fact that as per advise of the respondent No-3 the appellant carried on various pathological tests both outside and inside the respondent No-2 and ultimately on perusal of the report the respondent No-3 diagnosed that the complainant/appellant was suffering pain due to stone in her gall bladder and advised her for laparoscopic surgery and on 27.03.2010 the appellant as per advise of the respondent No-3 took admission in the I.G.M. Hospital (O.P.No-2) for the said surgery and on 29.03.2010 the respondent No-3 attempted for laparoscopic surgery, but thereafter, conventional surgery was done and the appellant was discharged from the I.G.M. Hospital on 04.04.2010. It is further admitted fact that thereafter, the appellant again took admission in I.G.M. Hospital through O.P.D. on 08.04.2010 and as 09.04.2010 was the Govt holiday, the appellant-complainant took Ultrasonography from outside the hospital i.e. Sonic Health & Research Centre and Ultrasonography was also done in the I.G.M.Hospital and on perusal of both the reports and obtaining the consent from the husband of the complainant on 12.04.2010 the appellant (the patient Purnima Banik) was taken to O.T. wherein the respondent No-3 along with the Dr.Tapan Saha,M.S and Dr. Asit Bhattacharya inserted an intraperitoneal drainage tube through which accumulated bile was drained. It is also admitted fact that thereafter the appellant was referred to the Tripura Medical College and BRAM teaching hospital on 17.04.2011 for better treatment. It is further admitted fact that the appellant went to Chennai and was treated there in Apollo hospital.
10. The learned advocate for the appellant submitted that the instant appeal has been preferred on three grounds namely (1) respondents admitted that only during the Laparoscopic Surgery in question the gall bladder was discovered to be a distended one, but did not, adduce any evidence whatsoever to show as to why it could not be discovered much earlier, (2) that the respondents admitted that after the surgery in question a leakage was there from the injured bile duct, but did not, adduce any evidence whatsoever to prove that the respondents were in no way deficient or negligent in respect of the said leakage and (3) that the respondents, at no point of time, disclosed it to the appellant or to her husband that the respondent No-2 did not have the required infrastructure which might sometime require it to refer the appellant to any other hospital for better treatment. He also submitted that all the three grounds mentioned above clearly indicate that there was deficiency in service and negligence and also unfair practice on the part of the respondents and as such the respondent are jointly and severally legally bound to pay compensation to the appellant and on that score the impugned judgment passed by the Ld. District Forum should be set aside.
11. On the other hand, the learned advocate for the respondents submits that the Ultrasonography done on 25.03.2010 on the appellant makes it clear that gall bladder operation through Laparoscopic Surgery was permissible. He also submitted referring to the medical journal published in ASICON 2008 at page 49 thereof that there are various Pathological conditions of the gall bladder whose concurrence makes laparoscopic cholecystectomy a difficult operation with a much higher risk of biliary ductal injuries. Some of these pathological conditions include an acutely inflamed and empyematous gall bladder, shrunken fibrotic gall bladder, Mirizzi syndrome, xanthogranylomatous cholecystitis, cirrhosis of liver and biliary enteric fistula. Until as recently as a decade back, these conditions even used to be contraindications for laparascopic surgery.
The judicious line of thinking would be that whenever there is doubt and the anatomical landmarks of the biliary tree cannot be clearly defined, a surgeon should not hesitate to convert to an open procedure, and such a conversion should not be taken as a failure but rather as an expected outcome.
He also submitted that the above medical opinion makes it clear that if the surgeon finds it difficult to perform laparoscopic surgery, then and there the surgeon should not hesitate to convert it to an open or conventional surgery. He also submitted that in the instant case, the samething happened and ultimately conventional surgery was done in respect of gall bladder operation of the appellant in the I.G.M. Hospital.
12. The learned advocate for the respondent referring to FORQUHARSONS TEXTBOOK OF OPERATIVE GENERA SURGERY submitted that a bile leak may occur into a subhepatic drain placed at the time of surgery or the bile may collect intra-abdominally and present either as generalized biliary peritonitis or as a localized collection. The surgeon must have a high index of suspicion of a bile leak, or bile duct injury, in any patient who is not well after cholecystectomy. Upper abdominal or chest pain, associated with tachycardia and persistent hypotension are classical signs. Following resuscitation, an abdominal ultrasound should be performed and any free fluid or collection aspirated to determine if it is bile-stained. It may be appropriate to ask the radiologist to place a drain into a subhepatic/sub-phrenic collection. However, if the patient develops generalized biliary peritonitis, re-laparotomy should be performed once the patients condition is optimized.
13. The learned advocate for the respondent also submitted that the gall bladder operation of the appellant was performed not by the respondent No-3 alone, but by a team consisting of respondent No-3, Dr. Tapan Saha, MS, Dr. Druba Banik,MS and Dr. Asit Bhattacharya, DA. He also submitted that barring Dr.Asit Bhattacharya, all the three doctors are Master Degree holder in surgery and being the medical surgery expert, they considered the condition of the appellant with regard to the report of the Ultrasonography and decided to perform laparoscopic surgery and while doing such laparoscopic surgery, they found that the gall bladder of the appellant was distended one and then and there following the medical practices they performed conventional surgery. He also submitted that while performing such operation bile duct of the appellant was injured and such injury may occur as per medical opinion of the expert as published in the medical journal on the topic post operative complication of biliary surgery.
14. He also submitted that following the established medical practice while the appellant was readmitted in IGM hospital, with the consent of the appellant she was taken to O.T. and anesthesia induced by Dr. Asit Bhattacharya and the respondent No-3 Dr. B.S.Choudhury, MS and Dr. Tapan Saha,MS did the peritoneal tapping which showed bile, and in the same sitting inserted an intraperitoneal drainage tube through which accumulated bile was drained and after that treatment physical condition of the appellant was improved and proper care was taken throughout the post operative period.
15. He also submitted that on 17.04.10 the appellant was referred to Tripura Medical College and BRAM Teaching Hospital in a stable physical condition for her further treatment. He also submitted that there is no hard and first rule that all the hospitals must possess all infrastructures and in such cases, sometimes if the doctor finds it necessary to shift or refer patient to another hospital, it cannot be called a deficiency in providing service or an unfair practice on the part of the doctors or the Hospital.
16. The learned advocate further submitted that the appellant at his own went to Chennai Apollo Hospital, but the medical papers submitted from the side of the appellant/complainant have made it clear that the Apollo Hospital also rendered same medical treatment as already rendered by the doctors of IGM Hospital. He also submitted that the appellant complainant produced nothing to draw a conclusion that the respondent No-3 in any way was deficient and negligent in providing medical service to the appellant. He further submitted that even the medical papers produced by the appellant do not establish that the respondent No-3 and other expert doctors who performed gall bladder operation of the appellant was adopted any wrong procedure or did not provide proper medical treatment or were negligent in any manner in respect of the treatment of the complainant while she was admitted in IGM Hospital for gall bladder operation. In this regard, the learned advocate for the respondent No-3 has referred to a decision reported in AIR 2010 Supreme Court 1050.
17. The learned advocate for the respondent No-3 then submitted that the Ld. District Forum practically considered all the aspects of the matter and rightly passed the impugned judgment which being proper and justified should be upheld and the appeal should be dismissed.
18. We have gone through the cases of the parties, evidences both oral and documentary adduced by the parties, the impugned judgment, the medical opinion medical experts, the case law referred by the learned advocate for the respondent and the submissions made by the learned advocate of both sides. It is evident that gall bladder operation through conventional surgery was performed, not only by the respondent No-3 alone, but a team of medical experts who are Master Degree holder in surgery assisted by an Anesthesia doctor. From the medical reports it is apparent that the conditions as per Clinical report of the complainant permit laparoscopic surgery for gall bladder operation. It is also found that while performing that laparoscopic surgery the gall bladder of the complainant was found distended one and then and there the said medical team performed the gall bladder operation of the complainant through conventional surgery which is permissible as per medical practice as appearing from the medical opinion of the expert. It is also evident that in course of that operation the bile duct of the complainant became injured and bile started oozing out from the said bile duct. It is also found from the medical journal containing of the opinion of the medical expert that such bile duct injury can be caused and bile may be oozing out from the said injured bile duct. We further find that in such case the proper treatment requires to be taken by the doctors and the same was rendered to the appellant-complainant by inserting a intraperitonial drainage tube through which accumulated bile was drained out and thereafter the condition of the complainant became steady. We have gone through the medical papers of Chennai Apollo Hospital wherefrom we find that the Chennai Medical Hospital also treated the appellant in the same way as the appellant-complainant was treated by the doctors of IGM Hospital.
19. It has been held in the decision reported in AIR 2010 Supreme Court 1050 that medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. It has also been held that the negligence cannot be attributed to a doctor so long as he performs his duty with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It has also been held that it is the bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. It has also been held that the medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly Private Hospital or Clinics for extracting uncalled for compensation. Such malicious proceedings deserved to be discarded against the medical practitioners. It has also been held that the medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. Going through the evidences, it is evident before us that three M.S doctors performed their duties with reasonable skill and competence and also in the interest of the patient who is the complainant-appellant herein. Going through the principle of law laid down by the Honble Apex Court it is our considered view that the respondent No-3 and other doctors of I.G.M. Hospital were not wrong and there was no negligent on their part in the matter of gall bladder operation of the complainant-appellant in I.G.M. Hospital. We also find no deficiency in rendering proper treatment and also no negligence towards the medical treatment of the complainant-appellant from the side of the respondents in any manner.
20. Going through the impugned judgment, we find that the Ld. District Forum meticulously examined the cases of the parties, the evidences adduced and other aspects of the matter involved in the case. We also find that the Ld. District Forum rightly considered and came to the conclusion and dismissed the case of the complainant accordingly. We find nothing to interfere with the impugned judgment which being found proper, justifiable and based on well reasonings is hereby upheld.
21. In the result, the appeal fails and accordingly, it is dismissed, but no order as to cost.
MEMBER PRESIDENT State Commission State Commission Tripura Tripura