Biswanath Chakraborty vs CHINA SINHA

THIS appeal is directed against order dated 4.8.2000 directing the present appellant to pay a sum of Rs. 25,000/- as medical cost borne outside by the patient party for the medical treatment of the complainant.

THE case of the complainant is that she was married in 1998 and thereafter she conceived. She was regularly checked up by Dr. Ashim Kanta Adhikari, Gynaecologist and Obstetrician of Bolpur from 30.4.1999 to 20.8.1999. Upon U.S.G. Test it was ascertained that she was carrying twin babies. Doctor advised her complete rest and prescribed some medicines. When the labour pain started she was admitted in Bolpur Sub-Divisional Hospital in a paying bed on 31.8.1999 under the medical care of O.P. No. 1. Dr. B.N. Chakraborty on the same day at about 2.40 p.m. Delivery took place under the care of the said Doctor assisted by other maternity staff. It has been alleged that the Doctor applied forceps without any anaesthesia to facilitate delivery in a most negligent way so much so that the male child died instantaneously and the other female child survived, she was detained in the said hospital up to 4.9.1999 when she was discharged abruptly though she was not fit to be discharged. Coming home she felt pain in her body due to long episotomy with secondary P.P.H. So she again approached the Doctor for treatment but the latter refused to treat her further. Accordingly she was taken to Doctor Kanchan Mukherjee of Burdwan. On examination of the patient Dr. Mukherjee was shocked and surprised at the condition of the patient and expressed his views that episotomy was not performed by any qualified Gynaecologist at all. She was admitted in Nursing Home at Burdwan on 9.9.1999 under the treatment of the said Doctor who administered life saving drugs and blood transfusion was done. She was taken to Operation Theatre for repair of the secondary P.P.H. with zoped episotomy. On 9.9.1999 Dr. Mukherjee opened the episotomy and found that the uterine cavity was full of blood clots with a few placemental bits which remained inside the uterus after delivery at the hospital due to wrong, negligence and carelessness of O.P. No. 1. She remained at the said Nursing Home from 9.9.1999 to 24.9.1999 and thereafter she was discharged therefrom with the advice to refrain from sexual intercourse for a period of 3 months.

The complainant alleges that she had become completely crippled due to negligent and careless treatment of O.P. No. 1. Her husband spent a sum of Rs. 25,000/- for her treatment. Her further allegation is that the Doctor at the hospital physically assaulted her and hurled filthy and abusive languages inside the Labour Room. Accordingly, she approached the Forum claiming compensation of Rs. 2 lacs for physical disablement and Rs. 1 lac for mental pain and physical sufferings and a further sum of Rs. 1 lac for the loss of her male child.

O.P. No. 2 is the Superintendent of Sub-Divisional Hospital. He has filed written version wherein he has stated that on receipt of complaint he had formed an Inquiry Committee who found the attending Doctor viz., Dr. B.N. Chakraborty not guilty. The Forum observed that there was no negligence and deficiency in service on the part of the O.P. No. 2. So he was exonerated from the allegation. As against this finding of the Forum the complainant did not prefer any appeal. The case was seriously contested by O.P. No. 1 wherein he has stated that on 31.8.1999 he had for the first time examined the patient and found that it was an emergency case with premature labour pain and rupture of membrane with hypertension and oedema of legs. He claims that he examined the patient very carefully and it was diagnosed that it was a case of twin pregnancy. During examination he could hear only one foetal heart sound. He forthwith explained to the patient party about the condition of the patient and the complication that might follow. Since the patient was at that time in a transferable condition and considering the high risk involved the Doctor advised the patient party to shift her to Burdwan Medical College Hospital which was equipped with better management of such complicated cases. But the patient party did not agree. The Doctor claims that the condition of the patient was closely watched at regular intervals. On the next morning the labour pain was found to be steadily progressive. In the afternoon of 1.9.1999 he conducted the delivery. The first baby was in breech presentation and it was delivered through requisite liberal left mediolateral episotomy. The baby was a still born male baby. The second baby was delivered by application of forceps after the repture of membrane. It was a healthy female baby. The episotomy was repaired as per standard procedure after being satisfied that the placentas were delivered with no bits remaining inside the uterus and the uterus having contracted and retracted with no haemorrhage. Post natal progress of the complainant was uneventful and so the mother was discharged from the hospital with proper advice on 4.9.1999 with direction to report at the OPD after 7 days, but the patient did not turn up.

THE O.P. No. 1 claims to be a qualified Gynaecologist since 1979. He is an M.D. (Gynaecologist and Obstetrician). Besides he passed the first part of MRCOG from London. He has served different Medical Institutions without any blemish. Both parties adduced evidence and on consideration of the evidence, both oral and documentary, the Forum came to the conclusion that the Doctor viz. O.P. No. 1 was negligent and, therefore, there was deficiency in service on the part of the Doctor to some extent. Accordingly, the Forum awarded a compensation of Rs. 25,000/- in favour of the complainant. Feeling aggrieved thereby O.P. No. 1 has appealed. As noticed earlier O.P. No. 2, the Superintendent of the hospital has been absolved of the charge of negligence and deficiency in service by the Forum. There has been no appeal against the finding of the Forum. Therefore, the finding against the O.P. No. 2 stands.

THE appellant was O.P. No. 1 before the Forum and he has come in appeal challenging the decision of the Forum holding him guilty of negligence in the matter of treatment of the complainant. It is not disputed that the complainant was under the treatment of O.P. No. 1 at the Bolpur Sub-Divisional Hospital from 31.8.1999 to 4.9.1999. It is not also disputed that on 1.9.1999 she delivered one still-born male child and a female baby was delivered alive. In the petition of complaint as well as in her deposition the complainant has made the allegation that she was physically assaulted by the Doctor and nursing staff and those persons hurled vulgar language to her. THE Forum did not give much credence to these parts of the allegations of the complainants. THE Forum observed that there was no material to establish these allegations. Accordingly, the Forum confined its attention to the main allegation of the complainant about the manner in which the delivery was conducted by the attending Doctor causing her misfortune and post-operational complications. Her allegation is that due to negligent delivery by episotomy she became disabled to the extent of 60% and cannot lead normal conjugal life. She alleges that she approached the Doctor again after a few days from the date of discharge from the hospital for treatment. But the Doctor refused to treat her. So she was taken to Dr. Kanchan Mukherjee of Burdwan for treatment. THEre an operation was performed in a Nursing Home where she was detained for a fortnight and her family members had to incur huge expenses for her treatment. THE Forum noticed that the complainant could not produce Dr. Mukherjee for examination in order to establish the allegation made by the complainant. It appears that the Forum granted several opportunities to the complainant to produce the said Doctor but the complainant could not produce the said Doctor. Even the learned Counsel appearing for the complainant withdrew from the case. THE Forum observed that the complainant having hailed from a poor family was not in a position to produce Dr. Mukherjee by spending a lot of money. So the Forum thought not to ignore the oral evidence of the patient viz., the complainant. THE above observation of the Forum has been assailed by the learned Counsel for the appellant. Learned Counsel submits that the Forum was wrong in concluding about the guilt of the present appellant without any expert medical opinion in this regard. He submits that the Doctor should not be held guilty for wrong treatment without some medical evidence to that effect. According to the learned Counsel the Forum practically on the basis of sentiments was pleased to pass the judgment in favour of the complainant. In support of his contention to the effect that the Doctor should not be held guilty of wrong treatment without medical evidence to that effect he has cited a decision of the National Commission reported in III (1999) CPJ 29 (NC)=1999 (3) CPR 13 (NC) in the case of Subhashis Dhar & Ors. v. Smt. Sanjukta Sengupta & Ors. He submits further that the evidence of the Doctor goes un-challenged since there was none from the complainant''s side to cross-examine him. THE doctor has stated in clear terms that he had for the first time examined the patient on 31.8.1999 in a critical condition and advised her shifting to Burdwan Medical College and Hospital, but the patient party did not agree and so he started the treatment of the patient. His assertion is that he could hear the sound of only one baby in the womb but he could not hear the sound of another foetus. His case is that the first baby was in abnormal presentation. THE first baby was in a breech presentation. It was a still-born child, but the second baby was brought out alive with the application of forceps. THE Doctor asserts that reasonable care was taken and standard treatment was meted out to the patient during delivery and also in the post-delivery period. He claims that he was not aware of post-operative complications and the petitioner did not complain to him about any physical discomforts. So, he thought it wise to discharge her. He submits that the patient did not visit him after 4.9.1999 and as such he was not in a position to say as to what had happened to the complainant. Learned Counsel appearing for the appellant submits that the Forum was not justified in placing reliance upon the oral testimony of the complainant who has come with a false allegation about use of vulgar language by the Doctor and nursing staff and physical assault by the Doctor himself. He submits that the observation of the Forum that the complainant being poor and as such not being able to produce the Doctor who had allegedly treated her at Burdwan is not justified. According to him the judgment is based on surmises and conjectures and has no basis. He submits further that the Forum has noticed that the Doctor was negligent to some extent as such awarded a compensation of Rs. 25,000/- against him. He submits that there is no quantification for the compensation. He submits further that the assessment of compensation was imaginary and fanciful inasmuch as there is no cogent material to support the expenditure said to have been incurred by the complainant for her treatment at Burdwan. He submits also that the Forum was carried away by sentiment and emotion. He submits that the complainant could not produce the attending Physician of Burdwan to substantiate her allegation and as such the Forum was not justified in observing that since some treatment was done at Burdwan Nursing Home, O.P. No. 1 was guilty to some extent. According to him the onus to prove the negligence on the part of the Doctor is upon the complainant. THE complainant having failed to discharge the onus is not entitled to get the award of compensation. Learned Counsel for the appellant has drawn our attention to the observation of the Hon''ble National Commission in a decision reported in 1991 (1) CPR 142. In the said decision it was held that the compensation to be awarded is to be quantified on a rational basis on a consideration of material produced before the adjudicating Forum showing the extent of injury suffered and the manner in which, and the extent to which the monetary loss has been caused thereby to the complainant. Learned Counsel submits that in the present case there is absence of quantification of damages either in the pleading or in the affidavit. Simply because some treatment was done at Burdwan it cannot be stated that the O.P. No. 1 was responsible for negligence and as such liable to pay compensation. We have perused the decisions cited at the Bar and find that the complainant has failed to substantiate the allegation by producing Dr. Kanchan Mukherjee and the evidence related to the treatment. THEre is no evidence worth the name to show that in fact there was wrong treatment on the part of the O.P. resulting in the death of the male child and subsequent treatment of the patient at the Nursing Home at Burdwan. THEre is also no evidence to suggest that some portion of placenta remained inside the uterus causing discomfort and pain to the complainant entailing her treatment in a Nursing Home at Burdwan. THErefore, having considered the material on record we cannot persuade ourselves to agree with the finding of the Forum. Accordingly we are of clear opinion that the judgment of the Forum cannot be sustained. For the aforesaid reasons we allow the appeal and set aside the impugned judgment. Appeal allowed.