V.N. Mishra, Member:
1. The present complaint case has been filed by Arun Kumar Mishra and his wife Smt. Sunaina Devi, complainant Nos. 1 and 2 respectively against Dr. Purshottam Singh, opposite party No. 1 and Dr. D.K. Chaudhary, opposite party No. 2 for unskilfully and negligently carrying out operation upon complainant No. 2 causing irrepairable damage to her. The complainants have prayed for an award of compensation of Rs. 4.00 lakhs.
2. The facts of the complaint ease in brief are that the complainant No. 2 had pregnancy of about six months. Sine unfortunately developed pain in lower abdomen with bleeding in her vagina in her village home. She was brought to Arrah and was admitted in the clinic of opposite party No. 1 where it was diagnosed as a case of spontaneous abortion and dilation. Evacuation of uterus was done by opposite party No. 1 and she was discharged from the clinic with some medicines prescribed to be continued. After only five days she again developed pain in lower abdomen coupled with fever. She was again brought to opposite party No. 1 who advised for ultrasonography of lower abdomen including female general tracts. Opposite party No. 1 on the basis of report of ultrasonography advised for removal of pus collected in the lower abdomen after opening the abdomen. She was once again operated on 29.7.1992 to remove pus from the abdomen. But while doing so the opposite party No. 1 removed the uterus and uterine appendage without obtaining consent of the complainant. Because of lack of surgical skill the opposite party No. 1 made a hole in the intestine while separating the adherent of intestine resulting in discharge of stool through the wound. She was referred to Patna for further treatment.
3. In order to save her life she was brought to Patna and admitted in Tara Nursing Home of opposite party No, 2 where she was operated upon in hot haste on 13.8.1992. IIeo transverse anastomosis was done without any investigation to locate site of fistula. According to the complainant, ileum was cut and joined with transverse colon leaving a big blind loop of ascending colon and part of ileum with fistula which was the root cause of trouble. Her condition was worsening day-by-day. Opposite party No. 2 demanded further fee of Rs. 3,500/- for second operation although same amount had been paid before the first operation.
He refused to treat her in the nursing home without further fee. Opposite party No. 2 then on the complainants request, referred her to Kurji Holy Family Hospital. She was admitted in Kurji Hospital on 2.9.1992 where she was advised for fistologram and Ba-enema which clearly indicated the site of fistula. On the basis of the above reports some medicines were prescribed and she was advised to come after one month for operation. She was operated in Kurji Hospital by Dr. K.N. Sinha on 12.10.1992 and discharged thereafter.
4. The opposite party No. 1 according to the complainants mis-handled the treatment of the complainant No. 2 in most unskilled manner causing irrepairable damage to her. She will not now be able to produce any child ever. Opposite party No. 2 also aggravated the trouble by wrongly operating the lower part of intestine and joining it with transverse colon leaving a big blind loop. He therefore, prayed for award of compensation shown as under:
| 1. | Fees and other chargesby opposite party No. 1 | Rs. 15.000/- |
| 2. | Fees and other chargesby opposite party No. 2 | Rs. 25,000/- |
| 3. | Compensation for ruining life. | Rs. 3,60,000/- |
| Â | Total: | Rs. 4,00,000/- |
6. Opposite party No. 2 in his written statement has stated that allegations brought about by the complainants do not make out any cass of negligence or deficiency in service on his part. The complainant No. 2 in a very serious condition was brought to his nursing home by complainant No. 1 on 9.8.1992. Faeces and pus was coming out of abdominal wound. She was admitted in the nursing home on 10.8.1992 and emergency treatment was given so that she could be operated upon early. She was advised for blood examination on 11.8.1992. She was advised for operation after blood report was received and perused on 12.8.1992. Operation under general anaesthesia was done on 13.8.1992 with a team of a qualified anaesthetist. Dr. R.P. Mishra, qualified Surgeon, Dr. Kamleshwar Mishra, M.S. and Dr. C.L. Gupta, a P.G. Student of P.M.C.H. Abdominal Cavity was already open with feaces and pus coming out which was mopped. Attempt was made to isolate the fistula but as the gut was friable, plastered and inflammed it could lead to tear of the gut and also bleeding. Hence normal gut as far as possible was isolated and anastomosed to the distal part of the gut which was then after normal (transverse colon). With this anastomosis the food and faeces were diverted from the fistular tract and blind end alongwith fistula was taken out as safety valve arrangement so that only small quantity of faeces came out through that wound and it would not contaminate the whole abdominal cavity. In order to ensure good drainage, the abdominal wound was closed only in one layer. The patient after five days started passing stool from normal passage and very small amount came through the fistula. The patient was advised that the blind end would be closed after sometime when the general condition of the patient improved and friability and infection of the tissue reduced. The opposite party No. 2 however, admitted that fistologram was not got done as it is not advisable in acute ileal fistula when diagnosis is writ large on the face of me patient. The fistologram done on the advice of Dr. K.N. Sinha of Kurji Holy Family Hospital could not trace the exact site of fistula and it only indicated ileal fistula. He further stated that necessary investigation was advised and gotdone before taking up operation as apparent from Annexures A and B to written statement. He vehemently denied the allegation of the complainant that when the condition of the patient was worsening every day, he had demanded Rs. 3500/- for second operation. Infact he had not charged any personal remuneration for the first operation. He himself had advised for the second operation for permanent cure as mentioned earlier when gut acquired viability. He would have charged necessary fee for it as he could not afford to do the operation every time without fee.
7. The complainant No. 1 on this desired that the patient may be referred to Kurji Holy Family Hospital. The opposite party No. 2 accordingly referred the patient to the HOD Surgery, Kurji Holy Family Hospital. He reiterated to have given the best possible treatment to the complainant No. 2 when she was brought to Patna on 9.8.1992 with whole abdomen soaked with stool. This has been certified by Dr. K.N. Sinha, HOD of Surgery, Kurji Holy Family Hospital. He reiterated that he (opposite party No. 2) saved the life of the patient who was brought in a critical condition to his nursing home with whole of her abdomen soaked with stool. This cannot be termed as deficiency in service. Further he has not been paid any consideration amount as personal remuneration. As such the instant complaint petition under Consumer Protection Act, 1986 cannot be maintainable against opposite party No. 2. He denied that the complainants ever negotiated with him for settlement of the dispute. There was no question of any lapse on his part and therefore there was no occasion for him to settle the dispute through negotiation absolutely. He filed affidavit of Dr. K.N. Sinha, Head of Department of Surgery in Holy Family Hospital, Kurji, Patna. He is the Surgeon who performed the second surgery on complainant No. 2 after which her ailment was cured. He has averred that the operation performed by Dr. D.K. Chaudhary, opposite party No. 2 at the stage when the patient was soaked with stool in the whole abdomen with excoriation of skin was the best possible way of saving the life of the patient. The operation helped to improve the debilitated condition of the patient and combat infection. This helped in performing further operation which was also advised by Dr. D.K. Chaudhary. Opposite party No. 2 therefore, prayed that the complainant petition may be rejected with cost.
8. The complainants filed separate rejoinders to the written statements filed on behalf of opposite party No. 1 and opposite party No. 2. The complainants have alleged in the rejoinder to the written statement filed on behalf of opposite party No. 2 that the enclosures âA and âB attached with the written statement are forged. They contended that Annexure âA does not bear the signature of opposite party No. 2 on the first page dated 9.8.1992. Similar is the case on the second page of prescription dated 10.8.1992 and 11.8.1992. Signature of opposite party No. 2 appears to be appended at the end of page 2. All these facts go to prove that the entire writings of Annexure âA were done in hot-haste in one sitting. Similarly Annexure âB is also fabricated as Dr. K.K. Jha, Pathologist in his report signed the report with date as 11.8.1993 which was later overwritten as 11.8.1992. They further stated that that as per para 5 of written statement the complainant No. 2 was admitted in Tara Nursing Home on 10.8.1992. It is therefore, not explicable as to how the doctor could examine her on 9.8.1992. Risk bond had been signed by complainant No. 1 on 14.8.1992 whereas Annexure A at page 2 shows that risk paper was signed on 12.8.1992. Further risk paper signed by attendant has been written in deep ink.
9. As regards treatment, they contended that without as certaining the exact site of aperture in the gut, opposite party No. 2 operated upon the complainant by cutting the ileum at distal end and joined me same with transverse colon which proved his negligence. He had not cared to close the aperture in the gut as a result of which faeces still continued to come out through the aperture. He stated that the gut at the site of the aperture was not friable, plastered and inflamed. He was not satisfied with the procedure adopted by opposite party No. 2 in by-passing the aperture leaving a big loop of intestine which could endanger the life of the patient. He also disputed that that the patient started passing stool through normal passage. According to the complainants, entire stool, even after surgery by opposite party No. 2, still passed through the aperture in the intestine. The complainants therefore, prayed that concocted and false plea in the written statement of opposite party No. 2 may be rejected.
10. No useful purpose may now be served in discussing the points raised in the counter reply of the complainants to the written statement of the opposite party No. 1 as a compromise petition dated 8.12.1997 had been filed on behalf of the complainants and opposite party No. 1. The complainants on affidavit filed a petition on 4.5.1998 amending the original complaint petition. According to the amended petition no relief has been sought against opposite party No. 1. A compensation of Rs. 2.00 lakhs has been claimed as per amended petition from opposite party No. 2 for his alleged negligence in treatment of complainant No. 2.
11. The complainant No. 1 and learned Lawyer on behalf of opposite party No. 2 were finally heard. Decision of Tamil Nadu State Consumer Dispute Redressal Commission, Madras reported in III (1993) CPJ 1557 was filed in support of the contention of opposite party No. 2.
12. Before we enter into the discussion of the merit of the case we could first like to deal with the question of maintainability of the complaint petition. The opposite party No. 2 admitted that the complainants had consulted him on 9.8.1992. It is also not disputed that complainant No. 2 was admitted in his nursing home on 10.8.1992. He has also not disputed payment of fee of Rs. 3,500/- for surgical operation. This means that consideration amount was paid to him by the complainants for hiring his service. The complainants will therefore be fully entitled to invoke the provisions of Consumer Protection Act, 1986 against opposite party No. 2. The prayer of opposite party No. 2 on the above ground is therefore, rejected.
13. On perusal of record it is found that it is not disputed that the complainant No. 2 was operated upon by opposite party No. 1 at Arrah on 29.7.1992 for removal of pus in the abdomen when uterus was removed and abdomen was closed. But on removal of bandage on 7.8.1992, some fluid was found coming out through the stitched side according to the opposite party No. 1. The complainants had alleged that a hole in the intestine was caused by opposite party No. 1 because of unskilled surgery by him. Opposite party No. 1 accepted that hole in the intestine was caused but it was caused due to acute infection in the uterus and intestine and not because of any lapse in surgery done by him. The patient in that condition was advised not to take anything orally. The complainant No. 2 then was referred to complainant No. 2 on 8.8.1992. The complainants averred in the complaint petition that stool was coming out through the stitched wound and the patient was rushed to Patna to opposite party No. 2 to save her life. It is also admitted that she was operated upon by opposite party No. 2 in his Tara Nursing Home on 13.8.1992.
14. The main allegations of the complainants against opposite party No. 2 based on his complaint petition and counter affidavit are thatâ
(i) no pre-operative investigation was got done by the opposite party No. 2;
(ii) negligence and carelessness on the part of opposite party No. 2 in not following the latest well-advanced technology of medical science which landed the patient to miserable and pitiable condition; and.
(iii) forging has been done in the prescription and blood report at Annexures âA and âB to the written statement of opposite party No. 2.
15. The opposite party No. 2 has clearly admitted that fistologram was not advised by him. It was not considered necessary as abundant discharge of faeces was found coming out of the wound. In fact it was coming out of the wound from before 7.8.1992 itself. With the passage of time further considerable pressure built inside the abdomen might have caused suture to give way almost exposing the entire abdomen. After perusal of blood test report it was considered necessary to open the abdomen to find out the viable part of the gut on either side of fistula. It was out of question to repair the fistula at its site as it was friable because of infection since over a week. The gut in the vicinity of fistula naturally was bound to be friable. It was not important to find out the exact location of fistula, rather it was important to find out the viable part of the gut on either side of fistula by physical examination which could be joined to by-pass the fistula in the first stage leaving the affected part to regain viability. It would have been better if the opposite party No. 2 would have clearly explained to complainant No. 1 even after operation that anastomosis at earlier part of the gut in ascending colon and ileum was not possible because of their friability. (By-pass would have been removed. In the second stage after a month or so when the gut in the affected part regained viability). Thus according to the opposite party No. 2 the management of treatment of fistula involved two stages of operation. The first operation was done by opposite party No. 2 and the second one was advised after the gut in the affected portion regained viability and was free from infection. This has been certified by Dr. K.N. Sinha, Head of the Department of Surgery in Kurji Holy Family Hospital who did the second operation on complainant No. 2. He in fact on affidavit has averred that the operation done by Dr. D.K. Chaudhary, opposite party No. 2 at the stage when the patient was soaked with stool in whole abdomen with excoriation of skin was the best possible way of saving the life of the patient. He further averred that the operation done by Dr. D.K. Chaudhary, helped to improve the debilitated condition of the patient and combat infection. This had helped him (Dr. K.N. Sinha) in performing further operation which had also been advised by Dr. D.K. Chaudhary. Itis further seen that the line of treatment adopted by opposite party No. 2 is supported by Farquharsons Text Book of Operative Surgery edited by R.F.Rintoul, F.R.C.S.E., F.R.C.S. where short circuiting of gut in such circumstances (page 472-73) is advised.
16. Tamil Nadu State Commission also had held in the case reported in III (1993) CPJ 1557 that when there are genuinely two responsible schools of thoughts about management of clinical situation the Court could do not greater dis- service to the community or the advancement of medical science than to place the hall-mark of legality upon one form of treatment. The discretion exercised by an experienced Surgeon in choosing one of the alternatives, based on his experience therefore, may not be liable to be challenged in a Court of Law. The decision of opposite party No. 2 after physical examination of the gut to by-pass the fistula by joining the viable parts of the gut at suitable points may not therefore be questioned. It is further seen that the opposite party No. 2 without resorting to defensive method of treatment by ordering for various tests like fistologram and Ba-enema got only the blood test done. Blood test report is available on the record. Fistologram was considered essential by Dr. K.N. Sinha in Kurji Holy Family Hospital as the abdomen then was closed.
17. It is thus seen that test considered necessary was advised by opposite party No. 2. Infructuous test was avoided in the interest of the patient. The complainants, although have alleged that latest well advanced technology of medical science was not followed by the opposite party No. 2 have not disclosed the latest technology to have been adopted by opposite party No. 2. It appears that the complainant got disillusioned to find that ailment of complainant No. 2 ........ (continued.....) of complainant No: 2 could not be cured after operation and the second operation became essential. Because of lack of medical knowledge on the part of the complainant, they genuinely felt that the first operation had not been successful. But they should have made sure about the negligence of opposite party No. 2 after consulting some expert surgeon before implicating any reputed surgeon in the complaint case. They should have atleast consulted the surgeon who finally performed the second operation and cured the patient who could have explained to them that second operation in normal course in such case was essential and the second operation was not done because the first anastomosis was not successful. He did not bother to do that and rushed to file complaint case against opposite party No. 2 before this Commission only because no Court fee is required under the Consumer Protection Act, 1986. The hollowness of their allegation that the serious condition of the patient had aggravated after operation done by opposite party No. 2 is proved by their own avernment. They had stated in the complaint petition that the patient in serious condition with stool coming out from the wound was brought to opposite party No. 2 to save her life. She had been advised at Arrah not to take any thing orally. She was on I-V administration on 7.8.1992.
18. The patient was operated upon on 13.8.1992. She was in Tara Nursing Home till 2.9.1992, when on the complainants request, she was referred to Dr. K.N. Sinha of Kurji Holy Family Hospital where she was advised for fistologram and Ba-enema as the abdomen was closed then. After seeing the investigation report she was advised to come after one month for second operation. The opposite party No. 2 has stated that the condition of the patient had considerably improved after first anastomosis was done by him. The complainant has disputed that in the counter affidavit. But in case the condition of complainant No. 2 had become more serious, the patient would never have been advised to go home and come to Kurji Holy Family Hospital after one month for operation. This incidentally proves the falsity of the averment of the complainants that no stool was passing at all through the normal passage and entire faeces were coming out through the fistula. Had it been so. Dr. K.N. Sinha would not have taken the risk in advising the complainant No. 1 to take the patient to home and come after one month for operation. Managcment of removal of faeces and proper bandaging in absence of expert nurses in a remote village would not have been possible. Further gut in the loop portion would not have regained viability in case entire faeces would have been coming through fistula. The patient was brought back after more than one month for operation on 12.10.1992. The gut in the loop portion had regained viability and short anastamosis was done and the patient was cured. This thus proves that the allegations of the complainant against opposite party No. 2 are unfounded. Dr. K.N. Sinha like opposite party No. 2 wanted to give some time for the gut to regain strength and become viable and infection free when operation could be done.
18. Further as per original complaint petition, the complainants had claimed award of compensation as shown below:
| 1. | Fees and other charges by opposite party No. 1 | Rs. 15,000.00 | |
| 2. | Fees and other charges by opposite party No. 2 | Rs. 25,000.00 | |
| Â Â 3. | Compensation for ruining life. | Rs. 3,60,000.00 | |
20. As regards alleged forgery in the prescription and blood report at Annexures âA and âB the learned Lawyer on behalf of opposite party No. 2 pleaded that opposite party No. 2 maintains his own file where he keeps record of advice given to patients. It is not necessary for the opposite party No. 2 to sign date wise in his copy. The complainant on the other hand should file his own copy of prescription to prove his point. This was not done by the complainants. As regards overwriting in the date of the blood report, she pleaded that it was only a slip of pen which was corrected at that time itself. This may be possible. As regards signing of risk paper, it is done before taking up the operation. The operation was done on 13.8.1992 and opposite party No. 2 most have asked the complainant No. 1 to furnish the risk paper duly signed. Complainant No, 1 put his signature and gave date as 14.8.1992. Complainant No. 1 has admitted that first operation was done on 13.8.1992. It is not understandable as to what purpose the indemnity bond would serve for a surgeon, if the bond is not signed before the operation. It is not improbable, that complainant No. 1 while signing the bond put 14.8.1992 for 12.8.1992 omission of opposite party No. 2 in verifying the date in the risk paper cannot be treated as negligence on his part. The complainants thus have failed to prove any of the allegations brought about against opposite party No. 2. The affidavited statement of the expert surgeon who finally cured the patient has not been refuted by either cross- examining him or by statement of some other expert surgeon. We are, in the circumstances, inclined to believe that opposite party No. 2 has demonstrated adequate surgical skill in treating the patient.
21. In view of the above discussion we are convinced that there was no negligence or deficiency on the part of opposite party No. 2 in providing adequate care to the complainant No. 2 and the operation was performed in keeping with the standard practice of surgery in such cases. Such baseless accusations unnecessarily must have diverted the attention of the opposite party No. 2 from his real field of service. Taking however a lenient view in the circumstances of the whole case where the complainants suffered because of a hole caused in the intestine at Arrah, we are not inclined to invoke the provisions of Section 26 of C.P.A. 1986 against the complainants.
22. The complaint petition is dismissed.
23. There is no order as to cost.
Complaint dismissed.