UMA MANSINGKA Vs. VIJAY BATHWAL

JUDGEMENT

(1.) This original petition claiming Rs.35,52,753/- as compensation/damages with 24% interest per annum from the date of the complaint has been filed by the complainants alleging medical negligence on the part of Dr. Vijay Bathwal, the opposite party no.1, and the Princep Nursing Home, the opposite party no.2, where the complainant no.1/patient was admitted.

(2.) FACTS AS ALLEGED BY THE COMPLAINANTS :-

(3.) While Smt. Uma Mansingka, complainant no.1 (hereinafter referred to as the patient), was in Kolkata she experienced breathing problem on or around 29.12.1997. She consulted a general physician, who advised her to get herself examined by an ENT specialist. She thereafter approached Dr. Vijay Bathwal, opposite party no.1-an ENT Specialist in his clinic, who after examination stated that her problem can be cured by medicines and prescribed certain medicines and advised her to come on the following day but on 30.12.1997 the Doctor changed his opinion and informed the patient that she was having a serious problem which required urgent hospitalization and advised her to get admitted in the nursing home (opposite party no.2) for "Nasal Polypectus operation". As per the advice, the patient was admitted in the nursing home-opposite party no.2 on 31.12.1997 and on the said date, however, "SMR (Submucousal Resection) operation" was conducted on her and she was discharged from the nursing home on 01.01.1998. From the discharge summary the complainants came to know that instead of "Nasal Polypectus Operation", the opposite party no.1-Doctor has conducted "SMR Operation". While removing the bandage from the nose of the patient, she noticed some watery discharge from the nose, whereupon the opposite party no.1-Doctor informed her that this problem was due to cold and had nothing to do with the operation. After operation, the patient also developed vomiting tendency and uneasiness and in the presence of opposite party no.1/Doctor she vomited with blood. On 03.01.1998 the patient visited the opposite party no.1-Doctor, who prescribed some medicines for seven days and informed her that she can go to her hometown as she was alright, and accordingly she left for Siliguri but on the next day i.e. on 04.01.1998 she developed serious complications and in the night of 05.01.1998 CSF (Cerebro Spinal Fluid) started flowing from the nose, resulting in severe headache, throat pain, cough and neck pain besides fever and cold. On being contacted on phone, the OP-1/Doctor this time too stated that there was nothing to worry and all this was because of cold and had nothing to do with the operation. As the patient's condition was deteriorating day-by-day, on 08.01.1998 she contacted Dr. Satchidanand Das at Siliguri, who diagnosed her problem to be the case of Coryza on the basis of discharge slip. On the advice of opposite party no.1/Doctor, the patient contacted Dr. Anoop Ghosh, a local ENT specialist at Siliguri, who informed her that severe complications have developed due to negligence of opposite party no.1/Doctor in conducting the operation and she should approach the same doctor. On 13.01.1998 on the advice on telephone by OP-1/Doctor, the patient contacted Dr. S.K. Budiya, a general surgeon, who confirmed the CFS leakage and advised her to be examined by a Neuro Surgeon. On 14.01.1998 the patient approached Dr. M. Chakraborty, the Neuro surgeon, who upon examination diagnosed the patient's condition to be critical and advised her to rush to Kolkata without any delay. On 15.01.1998 the complainants met opposite party no.1/Doctor and he advised CT Scan of brain, nasal sinus and CSF test, the reports in respect of which were stated to be normal but patient's condition was getting worse. The opposite party no.1/Doctor changed the medicines and advised the patient for complete bed rest. Since there was no improvement in her condition, on 20.01.1998 the patient consulted Dr. Sandeep Chatterjee, Neuro Surgeon at Kolkata, who confirmed that she was suffering from CSF leak and advised her urgent institutional treatment in order to prevent the attack of meningitis. This time too, the opposite party no.1/Doctor stated that the report of Dr. Chatterjee was wrong and there was nothing to worry and advised the patient to continue the medicines for some more time. The complainants allege that up-till this time the opposite party no.1/Doctor did not raise any objection as regards the discharge summary and that he has not conducted the "SMR operation" and has conducted "Nasal Polypectus operation" or "Intra Nasal Etcmaidectomy Operation". In order to cover up his absence as he was going out of station for a marriage in relation, on 21.01.1998 the opposite party no.1/Doctor advised the patient to consult Dr. Atul Vajpayee, who would take the spinal fluid for seven days and then from the report so prepared, the opposite party no.1/Doctor would come to a definite conclusion as regards the further course of treatment. On 22.01.1998 the complainants decided not to take further treatment from the opposite party no.1/Doctor as there was no improvement in the patient's condition and the opposite party no.1/Doctor was repeatedly referring the patient to the doctors of his choice but not independent doctors. On 23.01.1998 the patient got herself admitted in Malar Hospitals Limited, Chennai for further treatment. At this hospital, the team of Dr. Ravi Ramamurthy, Neuro Surgeon, and Dr. Pravin Agarwal, a General Physician treated her with great difficulty and managed to arrest the CSF leak. On 18.02.1998 the patient was discharged with advice for a review after three months but thereafter too sometimes CSF started leaking and sometimes stopped flowing. As the flow of CSF leakage increased, the patient was advised to stay at Chennai for one month. In the meantime, on 28.03.1998 the complainants requested the nursing home/opposite party no.2 and the opposite party no.1/Doctor for issuing discharge certificate, bed chart and summary report of operation, in reply to which the nursing home/opposite party no.2 issued a certificate showing admission under opposite party no.1/Doctor and discharge of the patient but the opposite party no.1/Doctor replied that he was not having any documents as desired by the complainants and stated that Intra Nasal Etcmaidectomy Operation was done on both side of nose of the patient on 31.12.1997 at 7 AM and she was alright.