PURNIMA ROY vs ALFRED LEPCHA & ANR.

This revision petition is directed against the order of the State Commission, West Bengal dated 29-07-2016 allowing the appeal preferred against the order of the District Forum and dismissing the complaint.

Briefly put facts relevant for the disposal of the revision petition are that the petitioner complainant filed a consumer complaint against the opposite party-Dr. Alfred Lepcha alleging that she approached the doctor with a complaint of breast abscess (right). The opposite party-doctor on examination and investigation advised immediate surgery. The complainant was, thus, admitted in Anandlok Hospital (opposite party No.2) where opposite party No.1 (respondent) conducted surgery on 07-12-2011. The complainant was discharged on 12-12-2011. After the discharge the complainant suffered with severe pain from the wound due to incision. She was, therefore, taken to Shri Narayani Hospital at Vellore on 21-03-2012. There she underwent subsequent surgery and recovered from illness. Case of the complainant is that the opposite party No.1 left a gauze in the wound, which amounts to deficiency in service.

The complaint was resisted by the opposite parties. The District Forum on consideration of pleadings and the evidence allowed the complaint and directed the opposite parties to pay to the complainant a sum of Rs.1,62,460/- besides compensation of Rs.10,000/- and litigation cost of Rs.5,000/-.

Being aggrieved of the order of the District Forum the opposite parties preferred an appeal before the State Commission.

The State Commission, West Bengal vide impugned order set aside the order of the District Forum and dismissed the complaint. The reason for acceptance of appeal given by the State Commission was as under: " We have heard the submission made by both sides and perused the papers on record. It appears that the Complainant had been suffering from breast abscess and the operation was done at OP Hospital on 07/12/11 and discharged on 10/12/11. The Learned Counsel has referred to the medical literature, namely,"Breast Abscess and Masses ( http://emedicine.medscape.com/article/781116-)overview , Author : Andrew C Miller, MD??.". It has been mentioned therein that once an abscess is opened the pus drained, and the epithelial lining removed, the doctor will clean and irrigate the wound thoroughly with saline and if it is not too large or deep, the doctor may simply pack the abscess wound with gauze for 24-28 hours to absorb the pus and discharge. It has further been mentioned therein that other risks included incomplete drainage and prolonged infection and occasionally an abscess may require a second incision and drainage procedure. It is, therefore, clear that packing the abscess wound with gauze is the standard medical procedure that was followed by the Appellant Doctor. It is also clear that in case of prolonged infection a second incision may be necessary. From the discharge summary issued by the Vellore Hospital it appears that on local examination it was found

"Right enlarged, nodular breast with 6 x 6 cms, irregular swelling.

No nipple discharge.

Sinus (+).

Left breast - Normal.

No axillary node."

It appears that it was a case of breast sinus and there is no mention that gauze was found inside the wound. From the evidence of the expert Dr. A. Khandelwal it appears that the patient developed chronic infection and breast sinus is a known complication of breast abscess. In the decision cited by the Learned Counsel for the Appellant it has been held that medical negligence cannot be presumed and it must be proved. It has further been held that Doctor who used his best professional skill and knowledge and took due care and caution to treat the Complainant cannot be held guilty of medical negligence. In absence of any cogent evidence as to the existence of gauze inside the operated portion, we are of the considered view that the Complainant failed to establish the allegation of medical negligence against the OPs. The Learned District Forum was not justified in passing the impugned judgment and order."

Learned counsel for the petitioner has contended that the State Commission has committed a grave error in appreciation of evidence. She has contended that the State Commission has failed to appreciate that the opposite party No.1 had negligently left a gauze in the wound caused because of the breast removal surgery. In support of this contention learned counsel for the complainant has drawn our attention to a discharge summary purportedly issued by Shri Narayani Hospital & Research Centre on 05-10-2016 which reads as under: "Course of the operation in the hospital In response to your verbal talking over mobile phone in respect of operation of right breast sinus of Smt. Purnima Roy, dated 21/03/2012 is sending you the report as below. Mrs. Purnima Roy, 27 year old female was presented with complaints of pus from the right breast. She was diagnosed as a right breast sinus. One old gauze was removed from her right breast and underwent Quadrentectomy under GA on 22/03/12. She is being discharged with stable vitals on 24/03/12."

On reading of the above document we find that it has been issued on 05-10-2016 i.e. after the passing of the impugned order by the State Commission stating that one old gauze was removed from the right breast of the complainant during the second surgery conducted at the said hospital. This document apparently is false for the reason that at page 30 of the paper book the petitioner has filed the copy of discharge summary issued by Shri Narayani Hospital & Research Centre on 24-03-2012 after the second surgery. In this discharge summary there is no mention of removal of gauze from the wound caused by the first surgery. Thus, under the circumstances we do not find merit in the contention of the learned counsel for the petitioner. The impugned order of the State Commission is well reasoned. We find no infirmity in the impugned order which may call for interference in exercise of the revisional jurisdiction. The revision petition is dismissed in limine.