ASHOK KUMAR PATHAK R/O. KIRAN PARK, DOLTALA, P.O. & P.S. MADHYAMGRAM, DISTRICT Vs. DR. SWARNAVA ROY AND ANOTHER STERLING HOSPITAL, 55/1, BHUPEN BOSE AVENUE, P.S. SHYAMPUKUR, KOLKATA

JUDGEMENT

(1.) (Oral) - The petitioner/complainant suffering from abdominal pain got an ultrasound done and two stones; one of 4.7 mm and the other of 5 mm were found on 02.08.2010. On 09.08.2010, the petitioner/complainant was got admitted in Sterling Hospital, where a procedure namely Open Pyelolithotomy for removal of the stones was performed by the respondents on 14.08.2010. He was discharged from the hospital on 23.08.2010 after D.J. Stunt had been placed in his left kidney on 14.08.2010. An X-Ray was thereafter, got done by the petitioner/complainant on 24.09.2010, which did not reveal any residual stone in his kidney. However, the ultrasound done on 25.06.2011 after about ten months of his discharge from the hospital, revealed the presence of a stone measuring 4.6mm. The case of the complainant is that the respondents had failed to remove both the stones found in his kidney, in the procedure performed on 14.08.2010 and that is why a stone of almost the same size i.e. 4.6mm was found in the ultrasound done on 25.06.2011. The case of the respondents is that no residual stone was left in the kidney of the complainant after the procedure performed on 14.08.2010 and that a new stone got formed at a later date, within ten months of his discharge from the hospital. Alleging negligence in his treatment, by leaving one stone unremoved from his kidney, the petitioner/complainant approached the concerned District Forum by way of a consumer complaint. The complaint was resisted by the respondents on the ground that no stone was left while performing the procedure of open Pyelolithotomy on 14.08.2010 and there was no deficiency on their part in rendering services to the complainant.

(2.) The District Forum having dismissed the complaint, the petitioner/complainant approached the concerned State Commission by way of an appeal. The said appeal also having been dismissed, he is before this Commission by way of this revision petition.

(3.) The only question which arises for consideration in this petition is as to whether the respondents were negligent or deficient in rendering services to the petitioner/complainant while performing the Open Pyelolithotomy on 14.08.2010. No expert opinion was produced by the petitioner/complainant, to prove any negligence or deficiency in the performance of the aforesaid procedure by the respondents. He sought to prove the alleged negligence only by proving the presence of a stone of 4.6mm in his kidney on 25.06.2011, when a fresh ultrasound was done. The case of the respondents in this regard is that a fresh stone could develop in the body of the petitioner/complainant within the period of ten months of his discharge from the hospital on 23.08.2010. Since the onus of proving the alleged negligence on the part of the respondents was upon the petitioner/complainant, he ought to have proved either by examining a medical expert or by producing the relevant medical literature that the formation of a new stone was not possible within a period of ten months of his discharge from the hospital. The said onus having not been discharged by him, the petitioner/complainant failed to prove the alleged negligence on the part of the respondents in performing open Pyelolithotomy of his left kidney. Moreover, had any stone been left during the procedure performed on 14.08.2010, it would have appeared in the X-Ray done on 24.09.2010, more than one month after the procedure. Therefore, I have no good reason to interfere with the concurrent finding of fact returned by the Fora below, filed by the petitioner/complainant in this regard. The revision petition being devoid of any merits, is hereby dismissed with no order as to costs. Revision Petition dismissed.