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Judgment
Dr. S.M. Kantikar,Presiding Member
The instant Revision Petition was filed under Section 21(b) of the Consumer Protection Act, 1986 against the Order dated 08.08.2016 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as ‘State Commission’) in First Appeal No. 953/2013 by the Opposite Parties whereby the Appeal filed by the Complainant was allowed and the OP was directed to pay the Compensation.
The Complainant - Smt. Mamoni Roy filed the Complaint before the District Forum, Howrah for alleged medical negligence. She underwent tubal ligation operation on 15.03.2011. After one year, she conceived and was suffering from abdominal pain, consulted Dr. Suman Sarkar (OP-1) at Sneha Nursing Home (OP-2). The OP-1 prescribed few medicines, but did not advise any investigations or ultrasonography. After taking medicines, her condition became worst, but the OP-1 advised to continue the medicines. She became serious on 12th and 13th March, 2012 and she was taken to Shri Jain Hospital. The USG was performed, which revealed ruptured ectopic pregnancy. Therefore, emergency operation was performed and blood clots about ½ kg were removed. It was the failure of ligation and failure to diagnose ectopic pregnancy at earlier stage, the Complainant suffered physically, mentally and incurred heavy expenditure. Being aggrieved, the Complainant filed the Complaint before the District Forum, Howrah.
The District Forum dismissed the Complaint holding that the OP-1 acted according to the medical principle and technique as widely accepted.
Being aggrieved, the Complainant filed the First Appeal before the State Commission, which was allowed and directed the OP-1 to pay compensation of Rs.2,50,000/- and litigation cost of Rs.25,000/-
Being aggrieved the Petitioners/Opposite Parties filed this Revision Petition before this Commission.
Heard arguments from both the sides and perused the material on record.
Admittedly, the patient, almost after one year of her tubal ligation, approached the OP-1 for abdominal pain. On 11.03.2012, the OP-1 prescribed medicines only for abdominal pain. She did not mention any diagnosis, no medical test was advised. The pain did not subside for two days and the Complainant again approached OP-1, but she advised her to continue the medicines. It is further to note that due to severe pain, the patient was taken in emergency to Shree Jain Hospital and by USG, the ectopic tubal pregnancy was confirmed. She was operated on emergency for ruptured ectopic pregnancy and several blood clots were removed. Thus, in my view, it was the casual approach of the OP-1 at initial stage, who failed to examine and investigate the Complainant properly to diagnose ectopic pregnancy. The early diagnosis by USG could have prevented the tubal rupture and emergency operation. It was a failure of duty of care - an “act of Omission” of the OP-1, thus it was medical negligence.
I would like to rely upon the observation of Hon’ble Supreme Court on “duty of care”. In Kusum Sharma and Ors v. Batra Hospital and Medical Research Centre & Ors.[ (2010) 3 SCC 480], it was discussed that the breach of expected duty of care from the doctor, if not rendered appropriately, would amount to negligence. It was held that, if a doctor does not adopt proper procedure in treating his patient and does not exhibit the reasonable skill, he can be held liable for medical negligence. Similarly, in Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole[1969 AIR 128], the Hon’ble Supreme Court had observed that every doctor must exercise “reasonable standard of care” that are set out in the profession. Any breach towards these duties shall hold him liable for medical negligence.
In the instant case, the failure of tubal ligation is known due to tubal recanalization. In my view, it was not due to negligence of doctor Thus cannot be construed as medical negligence. However, the act of omission of OP-1 cannot be ignored. It was breach in duty of care which resulted into injury (ruptured ectopic) to the patient. Therefore, the OPs are held liable.
Based on afore discussion, I do not find any merit in the instant Revision Petition. The Order of the State Commission is affirmed.
The Revision Petition is dismissed.
The parties to bear their own cost