National Consumer Disputes Redressal
Dr. D.K. Majumdar vs Anjana Basu Roy And. Ors. on 12 June, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2473 OF 2007 (Against the Order dated 28/02/2007 in Appeal No. 411/2003 of the State Commission West Bengal) 1. DR. D.K. MAJUMDAR SON OF LATE ROHINI KUMAR MAJUMDER 20. NANDIGRAM KASBA KOLKATA -700078 ...........Petitioner(s) Versus 1. ANJANA BASU ROY AND. ORS. SMT. ANJANA BASU ROY 40A TILAK NAGAR P.O. REGENT PARK KOLKATA - 700040 ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER
For the Petitioner : Mr. Sanjoy Kumar Ghosh, Advocate
Mrs. Rupali S. Ghosh, Advocate For the Respondent : Mr. Amit Verma, Amicus Curiae
Dated : 12 Jun 2017 ORDER 1. The complainant, Smt. Anjana Bose Roy, (herein after referred as 'the patient') on 25.3.1999 underwent operation of Inguinal Harnia and hysterectomy at Good Hope Nursing Home/OP 1. It was performed by Dr. Binoy Bhushan Dey, OP 2 and Dr. D. K. Majumdar/OP 3. The patient was discharged on 4.4.1999 alongwith the catheter placed in urinary bladder. Complainant alleged that she suffered injury to her urinary bladder, it got perforated and she had leakage of urine. OP 2 and 3 never tried to correct the problem, but kept on prescribing medicines. On 11.4.1999, Dr. Roy removed the catheter at residence. Thereafter, patient had severe urinary leakage. She again consulted OP 3 on 13.4.1999, who advised medicines but no avail. Thereafter, she approached Dr. D. P. Manjhi at Advanced Medicare & Research Institute (AMRI), who performed second operation on 4.6.1999 and thereafter, third operation was performed at Kolkata Medical Research Institute but there was no relief. Then, the patient went to Hyderabad and took the treatment from Apollo Hospital wherein 4th operation was performed.
2. Due to alleged medical negligence committed by OPs, the complainant filed a complaint before the District Consumer Disputes Redressal Forum, Alipore (herein after referred to as 'the District Forum') and prayed for compensation of Rs.5 lakh, from them. The OP contested the complaint by filing the written version and denied the allegations of negligence. According to OPs, they have done their duty, without any lapses. OP 3/Dr. D. K. Majumdar contended that he had performed operation of repair of Harnia, therefore, no chance of damage to the urinal bladder of the patient.
3. Considering the pleadings and evidence, the District Forum allowed the complaint and directed the OP 2 to pay Rs.50,000/- and also directed OP 3 to pay a sum of Rs. 1,00,000/- to the complainant alongwith costs of Rs. 1,000/-. There was no order against OP 1/hospital.
4. Being aggrieved by the order of District Forum, OP 3 preferred first appeal (FA No. 411 of 2003) before West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, 'the State Commission') for dismissal of complaint whereas the complainant preferred first appeal (FA No. 482 of 2003) for enhancement of compensation. However, OP 2/Dr. Benoy Bhusan Dey did not prefer any appeal and complied with the order of District Forum and made the payment of his part to the complainant.
5. The State Commission dismissed both the appeals. Therefore, aggrieved by the impugned order, OP 3/petitioner filed the instant revision petition.
6. I have heard the learned counsel for the parties. The counsel for the petitioner vehemently argued that the petitioner/OP 3 did not perform hysterectomy operation but he had performed operation of inguinal Harnia only. He further submitted that the Inguinal Harnia occurs in the Inguinal region, which is not nearer to the urinary bladder. Therefore, there will not be any chance of bladder injury or perforation during surgery of Inguinal Harnia. Thus, OP 3 was not liable for any deficiency or negligence.
7. The counsel further submitted that initially the matter was referred to West Bengal Medical Council, Kolkata (WBMC), which examined the matter and exonerated OP 3. Counsel brought my attention to the order of WBMC, revealed that Dr. Binoy Bhushan Dey/OP No. 2 was held liable for professional misconduct and his name was removed from the Council Register for the period of six months. The WBMC could not substantiate any charges against OP 3 i.e. petitioner herein.
8. After thoughtful consideration, it is an admitted position that the patient was suffering from Harnia and she had also problem of uterus. As per medical Text Book of Surgery by Belly and Love, during surgery of Inguinal Harnia, there will be remote possibility of injury to urinary bladder, whereas bladder injury during hysterectomy operation is a known complication. Few patients show the post surgical complications like vesico vaginal fistula (VVF). On 25.03.1999, the surgery was performed under one setting only by OPs 2 and 3 jointly as the said surgery was performed at OP 1/hospital by a team of surgeons comprised of OPs 2 and 3. Therefore, in my view, the law expects higher duty of care from both the operating surgeons but in the instant case, there was a breach of duty from either of one, which has resulted into the injury. Thus, it was a medical negligence. It is difficult to pin-point who performed and who assisted the surgery because both are competent surgeons and competent to perform either of the surgery. Therefore, OPs 2 and 3 are liable for the negligence.
9. On the basis of foregoing discussion, I do not find any merit in this revision petition. Accordingly, it is dismissed. However, there shall be no order as to costs.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER