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• RAMESHCHANDRA
  GOSWAMI v. DR. DIPAK BANERJEE
  
    
  
  Consumer Protection Act, 1986 -
  Section 2(1)(g) – Medical Negligence -
  Deficiency in Service – Careless /
  negligence operation – Patient
  operated for appendicitis – Developed
  respiratory trouble after operation -
  Died due to cerebral attack occurred
  due to careless / negligent operation,
  patient did not regain consciousness
  due to wrong application of anesthesia
  – Allegation not established by expert
  evidence – Deficiency in service on
  part of opposite parties not proved -
  Complainant not entitled for a relief.
  
    
  
  Held: According to the complainant the
  cerebral attack occurred due to
  careless negligent operation by the
  doctor. But there is expert evidence
  to establish the fact that if
  operation was the proximate cause of
  the cerebral attack. In the petition
  of the complainant it has been alleged
  that because of wrong application
  anesthesia the patient did not regard
  consciousness, and ultimately died.
  Here again, there is no tangible
  evidence to establish fact. The
  learned Counsel for the opposite
  party-1 drawn our attention to noting
  in the bedhead ticket dated 4.8.1993
  to show that one of the doctors had
  noticed marked improvement in
  condition of the patient while she was
  under treatment at SSKM Hospital. The
  learned Counsel of the opposite party
  has also drawn attention counter
  affidavit filed by the complainant
  wherein it has been stated in
  paragraph 2 thereof that doctors
  H.K.Mitra and Amit Kr.Mukherjee are
  the owners of the nursing home
  (opposite party-3) whereas the stand
  taken in the complainant petition was
  that the opposite parties-1 and 2 are
  the owners of the said nursing home.
  Anyway these are not very much
  relevant for the purpose of this case.
  The question that arises for
  consideration is whether there was any
  deficiency in service on the part of
  the doctors. As indicated earlier
  there is no satisfactory evidence to
  establish the allegation against the
  doctors. This being the position we
  cannot but reject the claim. (Para 5 )
  
     
  
  Result : Complaint dismissed.
  
      
  
  ORDER
  
       
  
  Mr. Justice S.C.Datta, President – The
  complainant is husband of the deceased
  Arati Goswami. He has approached this
  Commission claiming compensation to
  the tune of Rs.10 lakhs for the death
  of his wife on 31.8.1993 due to
  defective operation performed by the
  opposite party-1 on 7.7.1993.
  
       
  
  2. The case of the complainant
  in short is that his wife Arati
  Goswami suddenly fall ill on 30.6.1993
  due to pain in the abdomen. She was
  immediately taken to Dr. Dipak
  Banerjee (opposite party-1) in his
  chamber for advice and treatment.
  After examination the said doctor
  advised for immediate operation for
  appendicitis. On his advice the
  patient was admitted to Shush Usha
  Nursing Home (opposite party-3) on
  6.7.1993 at about 10.40 p.m. On the
  next day i.e. on 7.7.1993 at about
  7.45 a.m. Dr.Banerjee performed the
  operation on the patient with the help
  of anesthetist Dr.Sujit das (opposite
  party-2). Immediately after operation
  the patient experienced respiratory
  trouble. The complainant alleges that
  this occurred due to negligence of the
  doctor performing the operation,
  nursing staff and absence of oxygen
  cylinder in the said nursing home.
  There is further allegation that no
  cardiologist was called for. In fact,
  tube patient lay uncared for about
  more than four hours in a precarious
  condition. Dr.Banerjee called
  Dr.S.K.Chatterjee, cardiologist
  (opposite party-4) at about 12 noon.
  Dr.Chatterjee noticed the precarious
  condition of the patient and advised
  shifting of the patient to a reputed
  hospital in Calcutta as otherwise she
  would be in a state of coma.
  Dr.Chatterjee further observed that
  this was a case of cerebral attack.
  The patient was shifted to Calcutta
  and admitted in the neurological
  medicine ward (female) of SSKM
  Hospital. The patient lay
  unconsciousness and she never regained
  her consciousness. Ultimately she
  expired on 31.8.1993. According to the
  complainant Dr.Banerjee being not a
  gynaecologist had no authority to
  perform such an intricate operation.
  Moreover, there was absence of
  necessary equipments and facilities at
  the nursing home resulting in untimely
  death of the patient. The complainant
  lodged complaint with the West Bengal
  Medical Council but without any
  consequence. Thereafter he approached
  this Commission for redress.
  
        
  
  3. The case is contested by the
  opposite parties-1 and 2 by filing a
  joint written version. It has been
  stated that he was sent for
  examination of the patient at the
  nursing home on 6.7.1993 and he
  advised immediate operation of the
  patient considering the seriousness of
  the ailment. Dr.Banerjee noticed that
  it was a case of pathological
  appendicitis. He advised for immediate
  surgery and also suggested that
  another surgeon should be consulted
  for second opinion. But the
  complainant insisted upon him to
  perform the operation. The complainant
  having expressed inability to consult
  another surgeon and having given
  procedural consent for such operation,
  Dr.Banerjee surgically removed the
  appendicitis of the patient with the
  help of opposite party-2 after taking
  all necessary precautions and
  following approval medical procedures
  for such surgery. The patient having
  felt respiratory trouble,
  Dr.Chatterjee was sent for who arrived
  on the same date at about 12 noon and
  advised for hospitalization. The
  opposite party denied that the patient
  died because of negligence. Since time
  was very short and condition of the
  patient worsened they had no time for
  detailed pathologica examination
  before the operation.
  
        
  
  4. The sole point for
  determination in the case is whether
  the complainant has succeeded in
  establishing deficiency in service in
  the matter of operation of he patient
  on 7.3.1993. Several ….. are
  committed. Dr. Banerjee is MBBS (Cal)
  and MAIMS (Delhi). Anyway the
  complainant consulted him while his
  wife fell ill following a pain in the
  abdomen. Dr. Banerjee performed the
  operation and removed the appendix. It
  has been alleged that he is not
  qualified to perform the said
  operation. It may be remembered that
  he is an MBBS doctor and as such it
  cannot be disputed that he had
  authority to perform the operation.
  The operation was done and appendix
  was removed within a few hours. The
  patient developed respiratory trouble
  and Dr. S.K.Chatterjee, a cardiologist
  was sent for. He observed that it was
  a case of cerebral attack. He advised
  immediate shifting of the patient to a
  reputed hospital in Calcutta. The
  patient was taken to Calcutta and
  admitted to SSKM Hospital for
  treatment. Later she expired there on
  31.8.1993. The learned Counsel
  appearing for the opposite parties has
  drawn our attention to the death
  certificate wherefrom it appears that
  the death occurred due to brain stem
  infraction. It may be mentioned that
  the trouble started after the
  operation was done and one appendix
  was removed.
  
       
  
  5. According to the complainant
  the cerebral attack occurred due to
  careless / negligent operation by the
  doctor. But there is no expert
  evidence to establish the fact that
  the operation was the proximate cause
  of the cerebral attack. In the
  petition of complainant, it has been
  alleged that because of wrong
  application of anesthesia the patient
  did not regain consciousness, and
  ultimately died. Here again there is
  no tangible evidence to establish
  fact. The learned Counsel for the
  opposite party-1 has drawn our
  attention to noting in the bedhead
  ticket dated 4.8.1993 to show that one
  of the doctors had noticed marked
  improvement in the condition of the
  patient while she was under treatment
  at SSKM Hospital. The learned Counsel
  of the opposite party has also drawn
  attention to counter affidavit filed
  by the complainant wherein it has been
  stated in paragraph 2 thereof that
  doctors H.K.Mitra and Amit Kr.
  Mukherjee are the owners of the
  nursing home (opposite party-3)
  whereas the stand taken in the
  complaint petition was the opposite
  parties-1 and 2 are the owners of the
  said nursing home. Anyway these are
  not very much relevant for the purpose
  of this case. The question that arises
  for consideration is whether there was
  any deficiency in service on the part
  of the doctors. As indicated earlier
  there is no satisfactory evidence to
  establish the allegation against the
  doctors. This being the position we
  cannot but reject the claim. 
  
     
  
  In view of the aforesaid, the case
  deserves to be dismissed which we
  hereby do.
  
      
  
  Ordered that the case be and the same
  is hereby dismissed on contest.
  
      
  
  Complaint dismissed.
  
        

• S.
  Rama Rao v. Bantwal Sulochana Madhava
  shenoy Trust(Regd) & Ors.
  
  1997(1)
  CPJ 301 (Karnataka SCDRC)
  
    
  
  The complainant was operated for
  hernia, under spinal anaesthesia.
  After surgery he developed paralysis
  in his body below the waist
  (paraplegia). He was advised to
  undergo another operation to remove
  blood clot in the spinal cord by an
  orthopaedician but he did not recover.
  The court held that there was no
  specific grievance about deficiency in
  service, as the complainant failed to
  establish paraplegia due to any
  deficiency and dismissed the
  complaint.
  
      

• A.
  Sambi Reddy v. KKR ENT Hospital and
  Research Institute & Anr
  
  1997 (3) CPR 316 (TNSCDRC)
  
     
  
  More
  Details      Click
  Here
  
     

• Sethu
  Raman Subramanian Iyer v.Triveni
  Nursing Home & Anr
  
  
  1998(1)
  CPJ 110 (NC)
  
      
  
  
  More
  Details      Click
  Here
  
     

• Laxman
  Thamappa Kotgiri v. Union of India
  & Ors.
  
  1998(1)
  CPR 665 (Mah.SCDRC)
  
     
  
  More
  Details      Click
  Here
  
     
  

• Abdulla
  Modiwala and Ors. V. G.D. Birla
  Memorial Health Centre and Ors
  
  State
  Consumer Disputes Redressal Commission
  Madhya Pradesh : Bhopal
  
     
  
  Consumer
  Protection Act, 1986 – Sections 17,
  2(1)(g) and 14(1)(d) – Medical
  negligence – Complainant’s with
  suffering from bleeding – Advised to
  undergo TCRE operation theatre -
  Declared dead – Complaint – Unless
  there is expert opinion that there was
  negligence or recklessness – Cannot be
  said that medical man acted negligence
  – Burden of establishing negligence on
  complainant – In absence of production
  of expert evidence indicating
  negligence opposite parties cannot be
  held to be negligent in their services
  in treating patient – Complainant
  failed to substantiate his contention
  by any kind of expert opinion or
  evidence or medical literature.
  
   
  
  Except this affidavit of the
  complainant himself, there is no
  evidence or any body’s affidavit
  supporting these contentions of the
  complainant as quoted above. No
  medical literature in support of the
  contents of the affidavit has been
  furnished. The entire statement quoted
  above is purely technical and can be
  given only by a person expert in
  medicines, who possesses knowledge of
  medicine and surgery and anaestheasia.
  The complainant has stated in his
  affidavit that he is given this
  affidavit on the basis of
  “personal Knowledge”. Since
  the complainant is not a medical man
  he cannot give this statement on the
  basis of personal knowledge and when
  he cannot give such statement on the
  basis of personal knowledge such a
  statement is not admissible in
  evidence. Besides this, the
  complainant has been absent
  continuously for about ten hearings
  right from 11-12-1998. On 13-8-1999 a
  note-sheet was also recorded that
  “the complainants be sent a
  notice that they are also given an
  equal opportunity to either send their
  written arguments after receipt of
  reply in rebuttal, from opposite
  parties or to appear in person or
  through their Counsel for the final
  argument in view of opposite party’s
  rebuttal reply, if any filed by
  them”. On 4-9-1999 the learned
  Counsel for the opposite party
  submitted an application requesting to
  cross-examine the complainant. Notice
  were issued to the complainant as well
  as his counsel for appearance. But
  still nobody turned up. Thus the
  opposite party could not get an
  opportunity of cross-examining the
  complainant.
  
   
  
  On the other hand, we find that the
  opposite parties who are well
  qualified doctors have submitted
  affidavits of their own in support of
  their contentious and also filed -
  medical literature as to why it is not
  fluid over flow, why pulmonary
  embolism, supported by photocopy of
  medical literature. Opposite party
  No.3- Dr. Smt. Marwaha has stated that
  she has done M.D. in anaesthesia from
  Pune. Opposite party No. 2 has stated
  that he has received special training
  for TCRE in Germany and he has done
  number of courses in Frances and
  Germany. On behalf of opposite party
  No .1 , Dr. R. Sonar, Medical Director
  of the opposite party No. 1 has
  furnished his affidavit, stating that
  he was present during the operation.
  He has stated that since the diagnosis
  was clear, biopsy and sonography were
  not considered as necessary. The
  photocopy of bed head ticket filed
  contains complete case history of the
  deceased Smt. Jahida. It starts with
  words ” Consent – no major
  illness in past”. Every 15
  minutes, recording of the condition of
  the present was done right from 10:45
  a.m. . It is at 12.45 that suddenly
  the pulse became low. Blood pressure
  became 160 II and the patient started
  struggling and gasping. At 1.00 froth
  started coming out of the mouth and
  nose. Patient was declared dead at
  1.20 p.m. The cause of death was
  Pulmonary Embolism. Strepto kinase is
  a drug, which is given to
  dilute/dissolve the clotting to
  prevent cardiac arrest, if there is a
  clot in the coronary artery. Cardiac
  arrest was on account of Pulmonary
  Embolism.
  
    
  
  It has been held in Darshani Devi v
  Rajashri, that unless there is expert
  opinion that there was negligence or
  recklessness, it cannot be said that
  the medical man acted negligently. In
  II (1992) CPJ 764 (NC), it has been
  that the burden of establishing
  negligence is on the complainant.
  
   
  
  In case of Sethuramani subramanium
  Iyer v. Triveni Nursing Home and Anr,
  the Hon’ble National Commission has
  held that in the absence of production
  of any expert evidence indicating
  negligence, the opposite parties
  cannot be held to be negligent in
  their services in treating the
  patient.
  
   
  
  In Dr. Laxman Joshi v Dr. Trimbak Bapu,
  it is held that “negligence can
  be attributed to a surgeon only if his
  mistake are of such a nature as t
  imply absence of reasonable care and
  skill on his part”.
  
   
  
  Since the complainant has failed to
  substantiate his contentions by any
  kind of expert opinion or evidence or
  medical literature, we dismiss the
  complaint with no order as to costs.
  
    
  
  Complaint dismissed.
  
    

• S.B.
  Kadkol v. Dr. N. Chandrashekara &
  Ors.
  
  2000
  (1) CPR 131, SCDRC Karnataka
  
    
  
  Complainant’s daughter was operated
  for ovarian cyst – At the fag end of
  operation she suffered cardiac arrest
  and she was shifted to another
  hospital where she died after 8 days -
  Opp. party hospital was alleged not
  adequately required to meet emergent
  situation and doctor who administered
  anesthesia was negligent – Standard of
  care expected of medical man – Law
  expects him to exercise reasonable
  care expected of a skilled medical
  practitioner – Test dose before
  anesthesia is administered is not
  necessary – Nothing was produced
  before Commission to create a nexus
  between the dose administered and
  melody suffered – No evidence to show
  that there was any remissness on part
  of opp. party No. 1 anesthetist to
  revive cardiac arrest – Opp. party
  hospital had the Boyles apparatuses
  and as such non-availability of
  automatic ventilator would not amount
  to any lapse or deficiency – No
  Intensive Care Unit in hospital could
  not be considered such a lapse as to
  amount deficiency in service -
  Negligence or deficiency in service on
  part of opposite party could not be
  held established by acceptable
  evidence.
  
      

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