Surendra Ram vs Dr. Ramesh Prasad Singh

Subhash Chandra, Presiding Member

The present revision petition has been filed under section 21 (B) of the Consumer Protection Act, 1986 (in short, ‘the Act’) against the judgment dated 01.11.2018 of the Bihar State Consumer Disputes Redressal Commission, Patna (‘in short, the State Commission’) in Appeal no. 870 of 2006.

The brief facts of the case are that the petitioner’s wife Anandi Devi complained of some pain and problem in the stomach for which she was advised by the local doctor at Gopalganj, Bihar to consult a good surgeon at Patna, Bihar. Accordingly, the petitioner along with his wife (now deceased) came to Patna and consulted the respondent herein, Dr Ramesh Prasad Singh of Sharada Seva Sadan, opposite Kendriya Vidyalaya, Kanakarbagh, Patna. The said doctor examined the wife of the petitioner on 29.03.2003 and after examination the doctor advised the some tests to arrive at a definite conclusion and a correct diagnosis could be done. Pathological tests for blood and urine were conducted on 29.03.2003. An ultrasound was also conducted on 31.03.2003. On perusing the pathological tests and ultrasound, the respondent advised the patient to get the gall bladder removed.

After necessary formalities the wife of the petitioner was admitted for necessary operation of Gall Bladder on 01.04.2003 at Sharda Seva Sadan, Kankarbagh, Patna. The gall bladder was removed by laparoscopy operation by the respondent doctor. For this surgery the respondent doctor charged a sum of Rs.12,000/- from the petitioner which was deposited before the operation on 01.04.2003.  After the operation the wife of the petitioner complained of breathlessness and her stomach was swelling slowly due to which she was not feeling well and the matter was reported to the respondent doctor. Despite the complaint of uneasiness and breathlessness on 01.04.2003, the respondent doctor came to examine the wife of the petitioner only on 02.04.2003. After examination, the doctor prescribed some medicines and also opined and advised that due to mistake it appears that stitches inside the stomach were not done for which reason the problem was still persisting He advised that the patient would have to be operated again. Accordingly, the wife of the petitioner was again operated on 02.04.2003. It was stated that the Despite the two operations, the situation did not improve and it went from bad to worse and ultimately, the wife of the petitioner died on 03.04.2003 at Sharda Seva Sadan due to negligence and deficiency in service of the respondent doctor. The petitioner submits that  the age of the wife of the petitioner was 45 years and while operating the patient for such symptoms the respondent should have taken care of her breathlessness and for normal functioning of the heart, the however, the same was not done by the respondent doctor. It is evident from the prescriptions dated 02.04.2023 and 03.04.2023 that the wife of the petitioner was suffering from breathlessness since last four years and she was taking medicine ‘Befrulon’ and some other medicines.  The State Commission is stated to have erroneously not considered the petitioner’s contentions in Complaint no.65 of 2004. The petitioner therefore, prays the following:

a. To set aside the order dated 01.11.2018 passed by the State Commission, Bihar in Appeal no. 870 of 2006 and allow the present revision petition;

b. To pass an order thereby remanding back the present case to the District Forum or to the State Commission, Patna in order to place the affidavit of Dr Suresh Prasad;

c. To pass an order thereby granting the compensation as prayed for by the petitioner in the complaint filed before the District Forum; and

d. To pass such other and further order as this Hon’ble Commission may deem fit and proper under the circumstances of the case.

The petitioner had filed a complaint before the District Consumer Disputes Redressal Forum, Patna (in short, ‘the District Forum’) being CC no. 65 of 2004. The respondent doctor filed an application stating that the petitioner has not filed the complete prescriptions. The respondent doctor filed his written statement before the District Forum, Patna and the petitioner filed his affidavit before the District Forum.

The District Forum after duly examining the facts of the case on 16.09.2006 has observed as under:

“It is also clear from the written submission of the opposite party that he has performed surgery of gall bladder of the deceased using laparoscopic method on 01.04.2003. There has been a leakage in her gall bladder, from which biles juices were leaking, resultantly, he has again performed laparotomy surgery and sutured the place in the bile duct from where bile juices were leaking, from which it is clear that opposite party has not conducted surgery of the gall bladder of deceased carefully using laparoscopic method. Opposite party has stated in his written submission that generally cholecystectomy occurs in bile duct. In this regard, surgery by Bailey and Love’s was referred to, whose photocopy was filed. In the circumstanced of this case, it is clear that had the surgery of gall bladder of the deceased been carefully performed by using laparoscopic method then there would have been no need of performing surgery again. It is also clear that eosinophilia  in the blood test of the deceased was found to be 20%, but yet the opposite party has performed surgery of gall bladder, an act which in the opinion of an expert doctor is a kind of negligence, which is responsible for the death of deceased. Under the circumstances, we find that opposite party has committed negligence during the course of operation of the deceased and has committed serious deficiency in providing services, which has resulted in the death of the deceased.

Therefore, in view of the entire circumstances of this case, opposite party hereby directed to pay a sum of Rs.1.00 lakh to the plaintiff as compensation within a period of two months from the date of this order and to also pay a sum of Rs.10,000/-, otherwise, aforesaid total amount of Rs.1,10,000/- shall be recovered from the opposite party with interest at the rate of 10% per annum.”

Aggrieved by the order of District Forum, the respondent doctor filed an appeal no. 870 of 2006 before the State Commission. The State Commission vide its order dated 01.11.2018 held as under:

“We have considered the case of the parties, materials on record as also the impugned order. It is well settled that in case of the medical negligence is attributed against the concerned doctor in the rendering the medical treatment including surgical operation the cardinal principle laid down is to examine on considering the diagnosis and the medical treatment given by the doctor in order to find out as to what the doctor had done was not required and what was required was not done. The finding could be arrived only upon medically examination right from the time the patient visited the doctor and receiving of advice/ treatment as also necessary medical test. We do not find such medical examination by the forum no any acceptable evidence like medical prescription/ pathological test. The medical opinion by way of the affidavit of Dr Suresh Prasad that surgical operation is not to be performed if eosinophils is more than 00.05% and in case operation is done the patient may die immediately or within 2 or 3 days. No medical literature is brought on record to support the opinion of Dr Suresh Prasad. The opinion appears to be based on no medical document on the subject. This apart the contention of the appellant that affidavit of Dr Suresh Prasad was not brought on record till date the case was posted for orders after argument. This necessitated to examine the order sheet of the complaint case annexed as Annexure 6 to the memo of appeal. We do not find any reference of affidavit of Dr Suresh Prasad dated 19.04.2006 in the order sheet. It also does not appear that the said affidavit of Dr Suresh Prasad was given to the appellant so as to have an opportunity of testing the opinion by cross-examine the doctor or otherwise.

The District Forum did not consider case in correct perspective. We are unable to sustain the order. It is thus set aside.

In the result, the appeal stands allowed”.

I have heard the learned counsel for the parties and have carefully perused the material on record.

Learned counsel for the petitioner has stated that the petitioner’s wife died due to the sheer medical negligence of the respondent doctor. The respondent was not operated carefully and without observation of the medical tests/ reports prior to conducting the surgery. Learned counsel for the petitioner further states that there was no purpose to re-operate the wife of the petitioner for the same cause immediately/ urgently on the very next day due to which the wife of the petitioner became serious due to stitches which were not proper in the first surgery inside the operated area of the body of the patient. Learned counsel for the petitioner further alleges that due to the negligence of the respondent doctor, the patient dies on the very next day of re-operation conducted by the doctor.

Learned counsel for the petitioner further states that the petitioner admitted his wife as per the advice of the respondent for gall bladder surgery. The respondent doctor also received the payment in advance but did not save the life of the deceased due to negligence. Learned counsel for the petitioner further states that the contention of the respondent doctor that the affidavit of Dr Suresh Prasad was never recorded was not correct and cannot be relied upon as the affidavit was filed by the petitioner. The non-recording of the affidavit of the said doctor cannot be made the basis for setting aside the order passed by the District Forum as the affidavit not only explicitly expresses the medical fault of the respondent but also serves as an Expert Opinion.

Learned counsel for the petitioner further states that as per the affidavit of Dr Suresh Prasad, he had stated on oath that when the percentage of the eosinophilia was more than 00.05% then a doctor should not operate on the patient and that if the operation was performed in such a condition, the patient would die within 2-3 days, whereas it was clear from the tests reports dated 29.03.2003, that the percentage of eosinophils exceeded 20%. Yet the respondent conducted the surgery on 01.04.2003.

Learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court in Jacob Mathews vs State of Punjab and Anr (2005) 6 SCC 1, cited by the respondent, wherein it was held that a “professional may be held liable for negligence either if he was not in possession of the requisite skills which he professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess”.

He has also relied upon the judgment of the Hon’ble Apex Court in Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole and Anr., AIR 1969 SC 128 V 56 C 27. He further submitted that in the Post Graduate Institute of Medical Examination and Research, Chandigarh vs Jaspal Singh and Ors., (2009) 7 SCC 330 it was held by the Hon’ble Supreme Court that the burden is on the claimant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioner’s breach of duty. He has also relied on the judgment of this Commission in the case of Hari Ram Gupta vs Ashok Kr Rawat and Ors 2015 (30 CPJ 71 (NC) whhich held that the mistake of not placing the special clips/ sutures is a mistake and lack of care on behalf of the doctor and failure of duty of care and deficiency.

Learned counsel for the petitioner further states that the respondent doctor is directly responsible for the death of the wife of the petitioner and committed not one but three grave and serious mistakes. Learned counsel for the petitioner prays for setting aside the judgment dated 01.11.2008 passed by the State Commission, Patna and to allow the revision petition.

Per contra learned counsel for the respondent stated that the respondent doctor had more than 40 years of experience and expertise of surgery and had conducted scores of successful surgeries. He stated that the pathological report dated 29.03.2003 relied upon by the District Forum to draw the inference of medical negligence against the answering respondent, Dr Ramesh Prasad Singh, does not contain the name of the referral doctor. Had these tests been referred by Dr Ramesh Prasad Singh, then the name of the doctor would have been reflected in the report at the top. This omission strikes at the root of its authenticity. It is alleged that the report was procured to fix the answering respondent.  He further states that the order of the District Forum was bad in law and it had passed in gross contravention of judicial pronouncements. He further states that in the present case there is neither any opinion of an expert placed on record nor was it ever sought or referred/ relied by the District Forum before fastening the liability of medical negligence against the respondent doctor. Respondent has also relied upon the  following judgments of the Apex Court (i) Jacob Mathew vs State of Punjab and Anr.; (ii)  S K Jhunjhunwala vs Dhanwanti Kaurand Another (2019) 2 SCC 282; (iii)  Vinod Jain vs Santokba Durlabhji Memorial Hospital and Anr. (2019) 12 SCC 229 (SC); Sunil Kumar Maity vs State Bank of India decided on 21.01.2022 to argue that the revision petition be dismissed.

From the records, it is seen that the eosinophilia count of the patient was very high on 29.03.2003. The patient was admitted for surgery on 01.04.2003 and the operation for the gall bladder was conducted on the very said date. After the operation, the patient was under medication and thereafter patient suffered from breathlessness. The medical prescription records that the patient was under medication for breathing issues. Under this circumstances, the affidavit of Dr Suresh Prasad should have been necessarily been considered. However, the same has not been considered in the present case. The veracity or otherwise of the pathological report should have been considered and examined by the State Commission which it failed to do. The case of the petitioner that the treating doctors acted in negligence and did not provide the due care and / or act with prudence and professional conduct has not been established due to this.

In the facts and circumstances, of the case, it is proper that the matter is remanded back to the State Commission for deciding the case on merits for proper adjudication of the matter after due opportunity to the parties to had their evidence and bring on record Expert Opinion.

In view of the forgoing discussion and in the facts and circumstances of the case, we allow the present revision petition. The impugned order is set aside and the matter is remanded to the State Commission for deciding the same on merits after giving due opportunity. The State Commission is advised to dispose of the appeal expeditiously, preferably within six months.

Parties shall appear before the State Commission on 07/ 11/ 2023.