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2004 DIGILAW 715 (CAL)

SURENDRA UGALI v. ARUN KUMAR GANGULY

2004-11-10

D.G.KARNIK, S.B.MAJMUDAR

body2004
( 1 ) THIS is an appeal filed against the order dated 1. 3. 1999 passed by the Calcutta District Forum Unit-l in the Forum Case No. 1603/97. The present Appellant was the OP. 4 before the Forum whereas the present Respondent-1 was the Complainant. The other Respondents were also OPs. before the Forum but against those OPs. the Forum did not pass any order. The order was passed only against the OP. 4 who has come in appeal. ( 2 ) THE Complainant's case has been described in detail in the impugned judgment and it is not really necessary to repeat the same fully. Very briefly speaking, the major complaints of the Complainant were as under: (1) There was obvious fault on the part of OP-4 inasmuch as he could not do justice in observing his commitment for prompt operation which would not be time consuming. Rather the complainant had to put up with serious troubles so that his life was at stake. The post operational treatment was half-hearted and the Complainant had to remain in the nursing home for about 4 weeks incurring avoidable expenses. (2) There was clear and ambiguous deficiency in medical service and utter negligence in rendering operational and post-operational services on the part of the OPs. (3) Had there been no deficiency in the medical services on the part of the Opposite parties the Complainant might have been spared incurring medical expenses in the form of consultation with other physicians, purchase of medicine, admission into another nursing home and purchase of blood. ( 3 ) THE Complainant filed the case before the Forum with the prayer for award of compensation of Rs. 1,12,275/- for deficiency in rendering medical service to the Complainant. ( 4 ) OR-4 that is the present Appellant filed a Written Objection before the Forum and the main points taken in the objection were as under: (1) The complaint petition is not maintainable since the entire medical service was provided free of cost and as such the Complainant does not come within the definition 'consumer. (2) The Complainant was suffering from acute gall bladder problem and it was a neglected case of malfunctioning of gall bladder where pus had formed, which was within the knowledge of the complainant. (2) The Complainant was suffering from acute gall bladder problem and it was a neglected case of malfunctioning of gall bladder where pus had formed, which was within the knowledge of the complainant. The Complainant had also the knowledge of the fact that the operation was a complicated one in view of the fact that there was heavy infection in the entire stomach zone. (3) The actual position of the gall bladder and its distance from the liver cannot be ascertained before operation. It is only after laparoscopic holes are made in the abdomen and the camera is inserted through the holes along with the operational instruments, through visual examination made through the screening the actual position of the gall bladder is ascertained. If it is found that the gall bladder is close to the liver, it may not be possible to remove the gall bladder by laparoscopic operation and the conventional operation may have to be resorted to by opening the abdomen. In the present case internal bleeding could not be controlled laparoscopically and the abdomen had to be necessarily opened by making an incision of about two inches on the abdomen. Thereafter internal bleeding was stopped and the abdomen was closed in layers. There was no complication so far as the operation was concerned and the Complainant also had no major grievances about the operation itself. (4) Due to neglected case of gall bladder inflammation the entire gall bladder region was highly infected. Despite administration of heavy anti-biotic the infection could not be controlled and as a result, stitches gave way. This opinion about the stitches giving way due to infection was also shared by senior surgeons like Dr. Amit Ganguly and Dr. Yogesh Baveshi who examined the patient at the OP.-4's request. On 7th December, 1996 the wound of the patient was restitched and the patient was put under wider cover of anti-biotics. (5) It has been denied by OP-4 that any assurance was given that the operation would not take more than one and half hours as alleged by the Complainant. According to the OP.-4 in laparoscopic surgery there is always a chance that a conventional surgery may have to be performed after considering the situation of the gall bladder and related aspects. According to the OP.-4 in laparoscopic surgery there is always a chance that a conventional surgery may have to be performed after considering the situation of the gall bladder and related aspects. (6) About the particulars of the complications faced and treatments undergone by the Complainant subsequent to his release from the Harrington Nursing Home the OP.-4 has denied any knowledge thereof nor has any document been produced in that regard. Accordingly the contention of the OP.-4 is that he is not liable to compensate the Complainant for any treatment undergone by the Complainant after his release from the harrington Nursing Home. ( 5 ) THE Forum after taking into account the various documents filed before it came to the finding that OP.-4 was necessarily conscious of the fact that it might not be possible to control bleeding if the operation was done laparoscopically and the safe way was to do the operation by the conventional method. In this context the Forum observed that there was no explanation why the OP.-4 resorted to the laparoscopic operation rather than the conventional operation. Accordingly the forum held that it was a case of taking unnecessary risk by the doctor which clearly amounted to lack of diligence which is another name of negligence. Therefore the Forum held the op.-4 liable for deficiency in service on this count. The Forum further observed that the occurrence of infection subsequent to the operation and that too such a high degree would automatically indicate that the doctor failed to conduct the operation diligently whereupon infections started resulting in failure to control the bleeding. According to the Forum if the infection persisted even after the operation for removal of the gall bladder, that too betrayed lack of diligence or negligence. After taking everything into account as also the complainant's prayers for compensation on different counts the Forum ordered that the OP.-4 shall pay an amount of Rs. 71,525 to the Complainant by way of damages and compensation. This amount comprised Rs. 10,950/- being half of the amount paid to the Nursing Home, Rs 10,575/- being the amount spent by the Complainant for his treatment after his release from Harrington nursing Home and Rs. 50,000/- for mental agony and physical distress. Being aggrieved by this order of the Forum the OP.-4 has come in Appeal before the Commission. This amount comprised Rs. 10,950/- being half of the amount paid to the Nursing Home, Rs 10,575/- being the amount spent by the Complainant for his treatment after his release from Harrington nursing Home and Rs. 50,000/- for mental agony and physical distress. Being aggrieved by this order of the Forum the OP.-4 has come in Appeal before the Commission. ( 6 ) IN the memo of appeal the main grounds taken by the Appellant are as under: (1) The Forum in passing the judgment took into account extraneous facts and circumstances which are not based on the complaint petition. (2) There was no evidence adduced by the Complainant in support of his allegations. The entire onus of establishing the alleged deficiency in service was wholly on the Complainant and the complainant had miserably failed to discharge that onus. (3) The Forum's conclusion that the Appellant was conscious that bleeding may not be controllable if the operation was done laparoscopically and that the safe way was to do the operation in the conventional method was erroneous. This was certainly not the case of the Appellant nor was it the case of the complainant. (4) The Forum drew erroneous inferences without any medical evidence of any expert and without any reference to any recognised medical authority. (5) The Complainant had come to the Appellant with a highly infected gall bladder and the infection remained in the system even after removal of the gall bladder and it was not a case of the occurrence of any new infection subsequent to the operation as erroneously concluded by the Forum. (6) The Forum failed to appreciate that bleeding could not be controlled due to pre-existing infection in the system of the patient which despite administration of adequate anti-biotic could not be eradicated. The existence of such infection retarded the process of healing of the wounds as a result whereof there was recurrence of bleeding. (7) The Forum failed to appreciate the fact that the alleged deficiency of service as imputed by the Complainant was not in carrying out the operation but in stitching the wound which burst open due to the infection which was already there in the system of the complainant. Such infection which remained in the system was not attributable to any negligence on the part of the Appellant. Such infection which remained in the system was not attributable to any negligence on the part of the Appellant. (8) The Appellant has also challenged the compensation awarded by the Forum as being without any basis. According to the appellant in regard to the treatment undergone by the complainant after his release from the Nursing Home no document was submitted and there was no evidence at all in support of the expenditure incurred by the Complainant for this purpose. Similarly there was no justification for directing the recovery of half of the amount of Rs. 21,900/- paid to the Nursing home by the Complainant. Regarding the payment of Rs. 50,000/- as compensation for mental agony, physical distress etc. there was no basis nor was any evidence adduced in this regard. (9) The Forum arrived at its conclusion about negligence on the part of the Appellant without any reference to any medical authority on the subject. ( 7 ) DURING the hearing of the appeal both the sides that is the Appellant and the Respondent-1 filed Written Notes of argument. Along with the Written notes of argument several case laws also were cited by both the parties. We first take up the Written Note of argument on behalf of the Appellant. (1) Challenging the finding of the Forum that laparoscopic operation ought not to have been done as the same meant unnecessary risk, the Appellant argued that the above finding of the Forum was wrong. Laparoscopic operation is done worldwide and is accepted to be the safest mode of operation. It gives less pain to the patient and the risk is also minimum in such an operation. There was no difficulty in the operation but the conventional operation had to be resorted to in order to stop the bleeding after the operation. The abdomen was cut open to save the life of the patient and it could not be said that there was any lack of diligence in this regard. The bleeding automatically stopped after the operation and the patient survived. It is an absolute discretion of the doctor at the time of emergency as to which method should be applied to save the patient and it cannot be alleged later to say that the doctor was wrong in exercising such discretion. The bleeding automatically stopped after the operation and the patient survived. It is an absolute discretion of the doctor at the time of emergency as to which method should be applied to save the patient and it cannot be alleged later to say that the doctor was wrong in exercising such discretion. (2) The Forum held the Appellant liable for opening of the stitches and post operative negligence on the part of the Appellant. In this regard the Appellant has argued that on 6. 12. 1996 it was diagnosed to be a case of burst abdomen or "dehiscence" which means rupture of all layers of the abdominal wall. In this context the Appellant has referred to Sabiston's Text Book of Surgery wherein on page 34 it has been stated that such dehiscence occurs in approximately 1% of laparotomic wounds and the factors associated with such wounds are malnutrition, sepsis, aneamia, uremia, liver disorder, diabetes, cortico-steroid therapy etc. According to the Appellant there is no medical evidence on record as to what actually was the cause of dehiscence. According to the Appellant the burst abdomen was due to heavy infection in the abdomen which was due to neglected case of gall bladder and hence the said infection cannot be said to attributable to deficiency in service on the part of the Appellant. According to the Appellant the burst abdomen of the Complainant was due to infection the source of which was from the patient itself, that is pus formed in the abdomen, and not due to any deficiency in service rendered by the Appellant. In this context the Appellant has argued that heavy antibiotic was prescribed and all post operative reasonable care and protection or precautions were taken. It is not the case of the Complainant that any precaution was not taken or any antibiotic was not prescribed. (3) The burst abdomen was restitched on 7. 12. 1996 and thereafter the condition of the patient improved. On 27. 12. 1996 the patient was discharged at his own risk. In regard to the treatment or operation or restitching of the wound after his release from the nursing Home there was no material or evidence available before the Forum, None of the doctors who were involved in the treatment after the Complainant's release from the Nursing Home have been made parties nor have they been called as witnesses. In regard to the treatment or operation or restitching of the wound after his release from the nursing Home there was no material or evidence available before the Forum, None of the doctors who were involved in the treatment after the Complainant's release from the Nursing Home have been made parties nor have they been called as witnesses. The appellant has argued that after the patient took discharge on his own on 27. 12. 1996, no negligence or deficiency in service could be attributed to the Appellant. (4) The Appellant in his argument has referred to the wel-known judgment given by the Apex Court in the Indian Medical association v. V. P. Shantha. In the said judgment the Supreme court relied upon an English case law viz. White House v. Jordan wherein Lord Denning held that a medical man if to be found liable whenever they do not effect a cure or whenever anything untoward happens, it would do a great disservice to the profession itself. It has been further emphasised in the judgment that to test negligence of a professional man an average competent and careful practitioner should be asked, "is this the sort of mistake that you yourself might have made?" If he says yes and even doing the best I could, it might have happened to me, then it is not negligence. " In view of this the Appellant has argued that to hold the Appellant guilty of negligence another professional surgeon of average competence should be asked whether it was possible to have a burst abdomen even in a most successful operation and even after taking adequate precaution as and taken in this case. In the instant case the Complainant has not given any evidence. No medical man was examined to establish the factum of negligence attributable to the surgeon and therefore the Appellant could not be held to be negligent. The Appellant has further stressed that this is an appropriate case where recording of evidence of medical experts is absolutely essential as it is apparent from Sabiston's Text Book that burst abdomen happens due to various factors including bacterial complications/ infection and therefore the Forum before attributing deficiency in service required medical evidence to come to such a conclusion. The Appellant has further stressed that this is an appropriate case where recording of evidence of medical experts is absolutely essential as it is apparent from Sabiston's Text Book that burst abdomen happens due to various factors including bacterial complications/ infection and therefore the Forum before attributing deficiency in service required medical evidence to come to such a conclusion. (5) The Appellant referred to in his argument the definition of negligence in Black's Law Dictionary where 'negligence' has been defined as "omission to do something which a reasonable man guided by ordinary considerations would do or doing of something which a reasonable and prudent man would not do. " It is material to establish to hold a medical professional guilty of negligence that certain actions were taken which were not to be taken by a prudent man possessing the skill or he has fallen short of expectation in due exercise of professional skill. But no such evidence was adduced before the Forum and therefore the impugned judgement of the Forum is not based on any material evidence. (6) Regarding the compensation awarded it was argued by the appellant that no evidence was produced in support of his claim for compensation for Rs. 50,000/- nor was any document placed before the Forum in support of the expenditure incurred by the complainant after his release from the Nursing Home. (7) While concluding his argument the learned Advocate for the appellant also drew our attention to the following case laws : (1) Vinitha Ashok (Smt.) v. Lakshmi Hospital and Ors, (2001)8 scc 731 . (2) Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. , (1996)2 SCC 634 . The Appellant has also furnished some extract from the medical book namely 'short Practice of Surgery' by Bailey and Love wherein there is a discussion on the question of burst abdomen. ( 8 ) THE Respondents/complainant has also filed a Written Note of argument, the salient features of which are as under: according to the Respondent negligence signifies three conditions namely (1) The physician was under a duty to take care towards the complainant to avoid the damage complained of. (2) There was a breach of duty on the part of the Appellant and (3) the complainant has suffered actual damage and that the breach is the direct and proximate cause. (2) There was a breach of duty on the part of the Appellant and (3) the complainant has suffered actual damage and that the breach is the direct and proximate cause. According to the Respondent a person reasonably skilled in his profession should exercise the ordinary skill of an ordinary competent man. Once it is established that the Appellant had a duty to take care and it was reasonably foreseeable that his act complained of was likely to cause injury to the Complainant, it would be no defence to the Appellant that the danger which actually materialised was not identical with the danger which was reasonably foreseen and guarded against, provided of course that the damage caused was not too remote. The respondent has also argued that before undertaking the surgery the Appellant did not think it advisable to carry out any test. In this context the Respondent has referred to the report of the Suraksha Diagnostic Centre which indicated the nature of the ailment including the formation of pus. Yet the Appellant or the Nursing Home authorities did not take any suitable step for the purpose of smooth operation of the gall bladder. The Respondent also has referred to the judgment given by the Apex Court in the case Indian Medical Association v. V. P. Shantha wherein it has been observed that a person consulted by a patient owes him certain duties namely a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be done and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action for negligence to the patient. In this particular case according to the Respondent there was a clear breach of duty in the administration of the treatment. In this context it has also been argued that the Appellant should have disclosed to the patient or to his relations that in laparoscopic surgery there was always a chance that a conventional operation may have to be performed on a patient after consideration of the situation. The Respondent has referred to the Sabiston's Text Book wherein it has been observed that in very many cases dehiscence is an avoidable complication if the wound is closed securely. The Respondent's argument is that the appellant acted carelessly when such dehiscence was avoidable. The Respondent has referred to the Sabiston's Text Book wherein it has been observed that in very many cases dehiscence is an avoidable complication if the wound is closed securely. The Respondent's argument is that the appellant acted carelessly when such dehiscence was avoidable. Regarding the question of adducing medical evidence or evidence of experts the respondent has argued that the nature of case, the mode and manner of the operation and the administration of the treatment after operation make it clear that obvious faults were there on the part of the Appellant and he was negligent throughout. According to the Respondent if obvious faults and deficiency in treatment can be established the Complainant is entitled to succeed and need not be relegated to the Civil Court. DECISION WITH REASONS ( 9 ) WE start with an observation made by the Forum on page 5 of the impugned judgment that the whole allegation centres around alleged negligent stitching of the wound and neglected post operational care. We find that though the Forum has correctly identified the main allegation of the Complainant it has discussed in great detail about the negligence of the Appellant in not resorting to the conventional operation" at the first instance instead of taking recourse to the same only after the laparoscopic method failed. As a matter of fact on perusing carefully the complaint petition we find that there was no major allegation by the Complainant regarding the conduct of the operation itself except to the extent that according to the Complainant an assurance was given by the Appellant that the surgery would not take much time but in actual practice it did take considerable time. In a situation where the Complaint itself is silent about any deficiency caused by not resorting to the conventional operation at the first instance it was not proper on the part of the Forum to enter into the ascertainment of whether the conduct of the Appellant during the operation amounted to deficiency in service. We find that in the various documents namely the objection filed before the Forum, the memo of appeal and the Written Note of argument the Appellant has quite convincingly argued that at present the laparoscopic method of surgery is acceptable all over the world as the safer method and also proves economical to the patient as the duration of the stay in the hospital is considerably reduced. We have no reason to disbelieve this stand taken by the Appellant. The Appellant first tried to do the surgery by the laparoscopic method but when he found that the bleeding could not be controlled by that method, he resorted to the conventional surgery but with a shorter incision. According to the Appellant, every surgeon should be entitled to exercise this discretion in an emergency in order to save the life of the patient and by doing so he cannot be held to have been negligent or deficient in service. As already observed, the Complainant has not made any serious allegation about the surgery proper and hence we cannot sustain that part of the impugned judgement which held that Appellant negligent simply because he did not take up the method of conventional surgery to start with. It is true that the Appellant might have given an assurance to the Complainant that the surgery would not take much time under the assumption that the Laparoscopic method would prove to be successful. But as explained earlier, after conducting the laparoscopic surgery it was found that bleeding could not be controlled and hence he had to resort to the conventional surgery. The failure of the Appellant in not being able to adhere to his assurance given to the Complainant has, according to us, been explained properly and on this count, in our opinion, there was no deficiency in service on the part of the Appellant. ( 10 ) COMING to the main allegation about negligent stitching of the wound and negligent post operational care we find that in different documents filed by the Appellant he has consistently taken the stand that the patient had a long neglected case of gall bladder and the infection was already there even before the surgery was undertaken. This infection persisted even after the removal of the gall bladder despite administration of adequate dose of antibiotics and this infection was the root cause of the phenomenon of the stitches giving way and consequent burst abdomen. In this regard the Appellant has drawn our attention to certain medical authorities already referred to. In one of the said medical authorities (Sabiston's text book of surgery) it has been observed that an infection is endogenous if the source of bacterial inoculum is from the patient and exogenous if the source is the environment. In this regard the Appellant has drawn our attention to certain medical authorities already referred to. In one of the said medical authorities (Sabiston's text book of surgery) it has been observed that an infection is endogenous if the source of bacterial inoculum is from the patient and exogenous if the source is the environment. It has been further observed in the same authority that today exogenous infection is uncommon and usually indicates a break in aseptic technique. Most wound infections are endogenous predominantly caused by enteric organisms. It has also been stated in the same book that infection is associated with more than half of the wounds that rupture. The factors that appeared to interfere with the healing of wound failure include malnutrition, sepsis, aneamia, uremia, liver failure, diabetes and steroid therapy. From the above it would be clear that dehiscence of the wound in the present case has occurred on account of infection and hence the surgery by itself was not responsible for the same. It is not clear on what basis the Forum concluded that after the removal of the gall bladder the source of the infection was removed and hence any infection that subsequently developed was due to lack of post operational care. In this regard the firm stand taken by the Appellant is that' the infection which had already been there persisted even after the surgery which perhaps could not be fully controlled by anti-biotics and this caused the burst abdomen phenomenon. We have noted the Respondent's argument based on the same medical authority that dehiscence is an avoidable complication if the wound is closed securely. However from this one cannot jump to the conclusion that once dehiscence has occurred the wound must not have been closed securely because there may be so many other factors behind the same phenomenon, which required the opinion of an expert. Of course questions may arise whether adequate anti-biotics were administered during the surgery and after the surgery and whether the stitching was absolutely proper or not. But unfortunately no medical evidence or opinion of medical expert has been adduced by the Complainant it support of such an allegation. As a matter of fact the compliant petition suffers significantly from the total absence of any expert opinion. But unfortunately no medical evidence or opinion of medical expert has been adduced by the Complainant it support of such an allegation. As a matter of fact the compliant petition suffers significantly from the total absence of any expert opinion. It is a well-settled position that when medical negligence is alleged against any doctor the allegations must be supported by some evidence of independent medical experts. In the present case no affidavit has been sworn by any person, be he an ordinary witness or an expert. Therefore, the charge levelled by the Complainant that there was negligence on the part of the Appellant during the post operative period has not been substantiated by any concrete evidence or expert opinion. In the absence of such expert evidence the allegations of the Complainant do not have any legs to stand upon. ( 11 ) WE have gone through the different rulings cited by the parties. In the Judgment (2001)8 SCC 731 it has been observed by the Apex Court that this is the legal position of the standard of care required by a doctor. A doctor will not be guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art". Apart from this, according to the judgement given by the Apex court in the case Indian Medical Association v. V. P. Shantha a medical man cannot be held to be liable whenever a cure is not effected or whenever anything untoward happens. The test for negligence of a professional man is whether he has done something which a person of average competence would not have done or whether he has not done something which a person of average competence would have done. In the instant case the Complainant has failed to establish by way of evidence or expert opinion that the present appellant can be held to be negligent on the basis of the above test of negligence. In the instant case the Complainant has failed to establish by way of evidence or expert opinion that the present appellant can be held to be negligent on the basis of the above test of negligence. ( 12 ) WE have noted the argument of the Respondent that a medical person when consulted by a patient owes him certain duties namely a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment and a breach of any of those duties gives a right of action for negligence. According to the Respondent there has been a clear breach of duties in the administration of the treatment. However as discussed above such a breach of duty in the administration of the treatment is certainly required to be proved by the Complainant by way of adducing requisite evidence in the form of expert opinion. Mere allegation is not proof and on the basis of mere allegation it is not proper to hold a professional medical man guilty of deficiency in service. ( 13 ) WE also find from the record that around 6th or 7th December when the stitches gave way the Appellant consulted other senior surgeons and the treatment administered thereafter were according to their advice. From this it is quite clear that the Appellant was not insensitive to the problems of the Complainant and tried to do what a person of average competence is expected to do and in such a situation it is difficult to hold him as negligent or guilty of deficiency in service. ( 14 ) IN view of the foregoing discussion in our opinion the Complainant has failed to prove his allegations against the present Appellant, the major weakness being not adducing any evidence by way of expert opinion. The forum apparently arrived at certain conclusions without anybody derived from some authority to support those conclusions. In such a situation we are constrained to observe that the impugned order of the Forum cannot be sustained and must be set aside. ( 15 ) ACCORDINGLY, we deem it appropriate to pass the following order. The Appeal is allowed on contest and the impugned order of the Forum is set aside. The complaint petition stands dismissed. In such a situation we are constrained to observe that the impugned order of the Forum cannot be sustained and must be set aside. ( 15 ) ACCORDINGLY, we deem it appropriate to pass the following order. The Appeal is allowed on contest and the impugned order of the Forum is set aside. The complaint petition stands dismissed. The Appeal be disposed of accordingly but without any cost taking into account the facts and the circumstances.