DHANWANTI KAUR Vs. S K JHUNJHUNWALA

JUDGEMENT

(1.) SMT . Dhanwanti Kumar @ Dhanwanti, the original complainant in the complaint before the State Commission has filed this appeal against the order dated 19.1.2004 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (to be referred as the State Commission ) in complaint case No. 698/O/1997. By the impugned order, the State Commission has dismissed the complaint filed by the appellant claiming a compensation of Rs. 15 lakh from the opposite parties Dr. S.K. Jhunjhunwala and Life Line Diagnostic Centre and Nursing Home, alleging negligence and deficiency in service on their part in giving her medical treatment.

(2.) BRIEFLY stated, the complaint before the State Commission was filed with the averments and allegations that since June 1996, the complainant suffered from severe pain in her abdomen for which she was treated by a local doctor but without any relief. She, therefore, contacted another doctor, namely, Dr. Lakshmi Basu and under her advice, she got various tests, viz., x -ray, P.A. chest, ultrasound of upper abdomen, endoscopy, blood tests, etc. done. On perusal of the reports of the said tests, Dr. Laxmi Basu opined that the complainant s gall bladder had two small calculi in its lumen for which she advised her to undergo laparoscopic surgery (Laparoscopic Cholecystectomy) from a well experienced surgeon. Pursuant to the said advice of Dr. Basu, the complainant consulted Dr. S.K. Jhunjhunwala -respondent No. 1 (hereinafter to be referred as the surgeon ). The said surgeon, after examination of the complainant and the reports of the tests, agreed with the opinion of Dr. Basu that the complainant required operation of her gall bladder and advised her and her husband to contact respondent No. 2 Life Line Diagnostic Centre and Nursing Home (hereinafter to be referred as the Nursing Home ) for admission there for the purpose of surgery. She got herself admitted to the said nursing home on 7.8.1996 and on 8.8.1996 at about 2.00 p.m., she was ushered into the operation theatre while her husband and relatives waited outside. However, the surgeon, instead of Laparoscopic Cholecystectomy, conducted open surgery and removed the gall bladder. According to the complainant, in doing so the surgeon committed the following acts of commission and omission which amount to gross medical negligence on his part in treating the complainant: (i) Open surgery was conducted and the gall bladder itself was removed by the surgeon without obtaining any consent from the complainant or her husband. (ii) The surgeon, by performing the open surgery had removed the gall bladder itself, instead of the stones in the gall bladder, as a result of which the complainant lost a vital organ of her person which was against the norms of medical jurisprudence and the law of the country. (iii) Even the procedure of open Cholecystectomy was faulty as the stones were not removed and slipped into common bile duct (CBD) for the removal of which the complainant had to undergo a second surgical procedure at Sir Ganga Ram Hospital, New Delhi. (iv) Unusually long incision was made in the abdomen of the complainant which required to be closed by 18 stitches as against a normal incision which is closed by 5 -6 stitches. Out of 18 stitches, 4 stitches remained unhealed and continued to be in bad form despite using the medicines as advised by the surgeon. (v) The complainant was treated with carelessness and negligence during her hospitalization. (vi) Post surgery, the complainant suffered from dysentery, loss of appetite, reduction of weight and deterioration of health, as a result of which she was unable to do her household chores. (vii) The surgeon exhibited casual attitude and carelessness when the complainant consulted him again between Feb -May, 1997 as she developed jaundice and was continued to have pain in her abdomen despite the surgeon having conducted ultrasound test twice at Vishudhanand Hospital. (viii) As the surgeon failed to remove the stones from the gall bladder and negligently allowed the stones to slip into the CBD due to his negligence, the complainant had to get the same removed at Sir Ganga Ram Hospital in the month of June 1997 at an additional expense of Rs. 40,000.

(3.) THE complaint was resisted by the surgeon inter alia on the ground that the complaint was based on allegations of medical negligence of highly technical nature and given the nature of the issues involved in the case, voluminous documentary and oral evidence would be required to be produced, the complaint could not be decided by the State Commission in exercise of its summary jurisdiction and, therefore, the complainant should be relegated to the Civil Court or any other appropriate forum. On merits, it was not disputed that on 8.8.1996 the patient was taken to the operation theatre for conducting Laparoscopic Cholecystectomy but it was sought to be explained that when he started the said procedure, he found that the gall bladder was swollen, inflamed and adhesion were present. Therefore, this situation/condition of the patient was disclosed to the husband of the complainant and after obtaining his consent, conventional procedure i.e., open Cholecystectomy was undertaken. It was pointed out that formal consent in writing had already been taken from the husband of the patient at the time of her admission on 7.8.1996. Further, that before the operation of the patient, she was informed that the procedure of Cholecystectomy itself meant the removal of gall bladder and that in case of failure of Laparoscopic Cholecystectomy, conventional procedure of open Cholecystectomy would be undertaken. Any negligence or deficiency in service in conducting the said procedure or during the post surgery management of the patient at the hospital was specifically denied. It was also denied that any stones were left or had slipped into the CBD at the time of conducting the procedure which were removed at Sir Ganga Ram Hospital. Allegations of any carelessness/negligence on the part of the surgeon when she consulted him during Feb. -May, 1997 are also denied.