Case Law: State Consumer Disputes Redressal Commission (Complaint Case No. CC/331/2014)

ORDER DATED: 30.12.2018

FACTS:

On 7.11.2012, the Complainant got his father admitted in Roy Nursing Home, OP No. 2 under OP No. 1 with complaint of gallbladder stone as well as CBD stone. After admission, Dr. Biswas operated upon the patient and removed stone from gallbladder and Common Bile Duct (CBD) with fitting of T-tube for letting out the bile. On and from the next day of operation the patient felt uneasy due to flatulence. The family re-visited the doctor who allegedly opined that there was no major problem.

The patient was released on 14.11.2013 with prescription of some medicines and advice for occasional closure of T-tube outer end to stop flow of bile. The family of the patient alleged that after the discharge, when the patient complained from swollen abdomen, profuse vomiting, riger and convulsion, the nursing home refused to admit the patient concerned despite his critical condition.

The patient, as a result, got admitted in Midnapore Medical College and Hospital on 16.11.2013 where the USG report disclosed WBC count 561009/cmm indicative of major infection and existence of residual stone measuring 6 mm at CBD. The patient was then referred to AMRI Hospital, where the UGI Endoscopy/Gastroscopy was done, revealing that the patient was suffering from Biloma. Thereafter the patient was taken to the Peerless Hospital, where the removal of CBD stone and repair of CBD damage was done by further operation on 30.11.2013 when the patient developed respiratory problem and ultimately died on 10.12.2013 at 8:45 p.m. due to Cardio-Respiratory Arrest in a case of Sepsis with Multi-Organ System Failure as revealed from the Death Certificate.

The matter came before the Commission after the son of the deceased Prasenjit moved a Petition seeking justice for the wrongful treatment that resulted in the death of his father. Before the Consumer forum, contending that there was clearly a defect in the operated by the doctor and deficiency in service as apartment from resultant sepsis for not taking appropriate action in course of operation to prevent it, the counsel for the complainant submitted the following allegations:

• Post-surgery, despite the condition of the patient, deteriorated, the doctor was not available for two days even over the telephone
• It was alleged in the Petition that the doctor is liable for his negligent and deficient service for performing faulty and incomplete surgery without clinical assessment of the condition of the patient concerned and for retention of stone in CBD after surgery and also for not attending to the patient when his condition was critical
• The nursing home is also liable for its inadequate infrastructural facilities and also for not admitting the patient in critical condition on 16.11.2013
• The patient was taken to Midnapore Medical College and Hospital where the post-operation USG report dated 17.11.2013 reported One calculi (6mm) is seen in proximal mid bile duct, which indicates defect in the operation performed by the doctor
• According to the MRI reported by the Peerless Hospital, it was clearly indicated that there was a defect in the operation by the doctor
• Informed Consent before an operation was not taken and that consent taken from other person is not a valid one

Denying the allegations, the Counsel for the doctor and the nursing home submitted that standard surgery was performed and hence, there is no deficiency in service and medical negligence on behalf of the doctor. The doctor and the hospital submitted that in gallbladder surgery, sepsis is unavoidable and common. In addition, they contended that for post-surgical complication, the operating surgeon cannot be held liable.

COURT HELD:

After hearing both the sides and perusing the materials on records, the bench presided by Hon’ble Judges observed that the evidences on records clearly indicate the presence of three essential components of medical negligence, i.e., duty, breach and resultant damage. Hence, the doctor was directed to pay, within 45 days from the date of the Order, to the Complainant Rs. 15 lacs as compensation for loss of the father of the Complainant forever and the OP No. 2 was also directed to pay to the Complainant, within the aforesaid period, Rs. 5 lacs as compensation.