DEEPAK KR. NEOGI vs BIRNDRA NATH DAS

THIS is an appeal directed against the Orders and Judgment passed by the learned Forum, South 24-Parganas in CDF Case No. 79 of 2003. The learned Forum in their Order dated 4.3.2004 directed the O.P.-1/Respondent No. 1 to pay compensation of Rs. 1,00,000.00 and also cost of Rs. 500.00. Being aggrieved by the above Order the present Appeal has been preferred. The case was heard analogously with case No. 152/A/2004 as the subject matter was the same and the parties to the other Appeal case are also the same.

THE facts of the case are that the complainant/appellant No. 1''s wife Smt. Dipti Neogi was admitted in Ramkrishna Seva Pratisthan on 4.1.2003 under respondent No.-1 due to some gynaecological problem. He was advised by the respondent No.-1 for removal of her uterus and accordingly laparoscopic surgery was done for removal of the uterus of the appellant No. 1''s wife on 6.1.2003. THE patient had reportedly felt severe pain in the abdomen besides having breathing trouble. But despite request made by the appellant No.-1/ Complainant''s wife and also her relatives the respondent No.-1 allegedly did not attend to her to take necessary measures for alleviating pain. On 8.1.2003 the complainant/appellant No.-1 was told by the hospital authority that the patient was O.K. but subsequently in the afternoon the complainant/appellant No. 1 was requested over telephone to attend the hospital immediately. THE complainant was also told to arrange blood for blood transfusion. On 8.1.2003 his consent was allegedly sought for surgical operation, but later on the complainant/appellant No.-1 came to know that the second operation had already taken place without his consent. THE patient was taken to ICCU as her condition was critical. THE respondent No. 1 informed appellant No. 1 that a perforation of intestine had been detected which happened in the course of the 1st operation. THE appellant No.-1 alleged that all this happened due to sheer negligence on the part of the respondent No.-1. THE patient expired on that date. She was found to have developed septicaemia. THE complainant/appellant No. 1 had, therefore, filed the complaint for proper compensation against the O.Ps. The learned Forum had observed that the circumstances in which the patient had died left enough scope for doubt that something went wrong with the operation and also in its post-operative care. The learned Forum further observed that it was clear from the documents on record that the intestine of the patient had been perforated during the 1st operation which was not noticed or taken care of initially and as a result of which there was continuous bleeding resulting in falling of blood pressure and ultimately development of septicaemia. Learned Forum, therefore, concluded that the attending doctors failed to give proper importance to the complaint of pain by the patient and her relatives and they only became active after it was detected that the blood pressure of the patient had come down alarmingly. The learned Forum further observed that transfusion of blood on the patient further proved that the patient was in need of blood due to drainage of her own blood on account of her perforated intestine. The respondent No.-1 in his written objection as well as in the Memo of Appeal had stated that the complaint was not based on personal knowledge of the Complainant but on conjecture. The respondent No.-1 had further contended that it was not a fact that the respondent No. 1 had failed to notice the incidence of perforated intestine of the patient. He contends that it is not possible to identify or locate such a small perforation immediately after the operation and thus he had no scope to know that there had been an instance of perforation of the intestine. The patient was also found to be progressing on the following day though she had complained of pain in her abdomen. But such pains are very common after an operation of this nature. The respondent No.-1 had strongly denied that the attending doctors did not give any importance to the patient''s complaint and had been aroused to action only after the blood pressure fell. He had further stated that after the blood pressure of the patient had fallen alarmingly he had sent for the Medical Officer of the hospital for examining the patient and on receipt of the report he himself visited the patient and then found that something was wrong. He suspected a secondary abdominal bleeding or any abdominal injury, and accordingly he administered higher dose of antibiotic and the relatives of the deceased were informed over telephone. The respondent No.-1 added further that he had decided that the patient was in need of a laparoscopic operation under the given circumstances to find out the cause of her present clinical condition. Since the relatives of the patient did not turn up till 1.00 p.m. on 8.1.2003 he had decided to go in for the above operation with the help of another surgeon of the hospital. The respondent No.-1 had also stated in his written argument the actions taken by him regarding the operation. The bilious abdominal collection was sucked out and small perforation in small intestine was detected and locally repaired and abdomen was closed in single layer. He had further averred that such small perforation cannot be detected in an injury and clinical features do not develop before 36 to 48 hours after the primary surgery. He avers that this was more or less the time taken by him to detect that some internal bleeding was going on. The appellant has adduced excerpts from the book "Gynaecology (3rd Edition) by R.W. Shaw, W.P. Soutter and S.L. Stanton (page 149). [Publisher Churchill Wingstone] which says "Patients who have received more than minor laceration such as puncture with a Veress needle at the time of laparoscopy will normally present after 42-72 hours". The respondent No.-1/O.P No. 1 had further stated in his W.N.A which fact is also acknowledged by the learned Forum that after the second operation the blood pressure remained low and respiratory effort being unsatisfactory the patient was put on a ventilator. Thereafter she was sent to ICCU considering the respiratory problem faced by her. He states that in spite of his best efforts he could not discuss the problems with the relatives of the patient till 6.30 p.m. on 8.1.2003 i.e. the date of 2nd operation.

The appellant No. 1 in his written argument had stated that when the patient was taken to the hospital on 29.11.2002 the USG of lower abdomen and pelvis did not show any abnormality and the uterus was normal in shape and size. He has also made an allegation that the history sheet dated 4.1.2003 showed that Dr. Das, the respondent No.-1 explained to his patient the modalities of management and the patient had opted for histactomy LAVH, but actual laparoscopy was done on 6.1.2003. The appellant had finally doubted the authenticity of the history sheet dated 4.1.2003. He further states that ideal treatment should have been laparoscopy guided ovaritomy, which is simple and less risky than laparoscopy and histrictomy and so the respondent No.-1 should have opted for the safer option. But he did not do it. He also complained that no X-ray investigation of the lower abdomen was done on 7.1.2003 when the patient was complaining of severe pain and other troubles. The appellant No. 1 holds that by causing two perforations in the intestine of the patient the respondent No.-1 is found guilty of murderous negligence. He further commented that the ''surgeon was inefficient or negligent'' which was ultimately responsible for developing septicaemia causing death to the patient. He holds both the hospital and doctor responsible for being negligent.

WE have perused the impugned orders passed by the learned Forum, Memo of Appeal and the written objection as well as the written notes of arguments filed by both sides. WE have also heard the learned Advocates of both sides. In his complaint the appellant No. 1/complainant had made allegations against the respondent No.-1 as well as respondent No. 2 for being negligent which caused death to his wife at the age of 42. After going through the facts and submissions made by both sides we find that the complainant/appellant No. 1 had brought his wife to respondent No. 2 for a histrictomy operation, and was advised by the doctor after examining the various medical reports. But very unfortunately two perforations had been inflicted on the intestine of the patient by the attending surgeon Dr. Das, who is the respondent No. 1. From the details noted in the case record of the hospital as well as submissions and written statements filed by both sides we find that the patient had been complaining of severe pain after the operation. WE also find that there had been routine visits by the attending surgeon after the operation and he prescribed some pain-killer medicines as he was of the view that the pain was due to the operation. The averment of the respondent No. 1 that the patient had shown some sign of improvement on the day following the operation is further corroborated by the fact that on the next day there was no sign of severe physical distress in the patient excepting the pain when the condition of the patient had suddenly deteriorated necessitating another operation. WE also find that when the doctor had come to suspect that the pain coupled with falling blood pressure was not a normal one, he had immediately arranged second operation to give relief to the patient with the help of another surgeon. He also repaired the perforations caused during the 1st operation. However, when the patient''s condition became critical she was put on ventilator to help her breathing problem and ultimately she was transferred to ICCU where she ultimately expired. If the whole situation is analysed we find that it is a fact that the intestine was perforated while executing the 1st operation but when the same was suspected the attending surgeon as well as the hospital authority took all possible measures to combat the situation. It is a fact which has also been admitted by the respondent No. 1 that the detection of perforation was after some 36 hours but there is nothing on record to show that it happened due to wilful negligence on the part of the appellant. However, the authority adduced by the respondent No. 1 containing expert opinion in the matter of puncture of any internal organ at the time of operation is also supportive of the fact that it takes time to detect the damage. Under such circumstances we do not think it proper to hold the attending surgeon and the hospital responsible for negligence in terms of Section 2(1)(g) of the C.P. Act, 1986 though the untimely death of a young lady is certainly very unfortunate. In this context it may be relevant to refer to the decision of the Hon''ble Apex Court in 2005 CTJ 1085 (SC) (CP), wherein it has been observed by the Hon''ble Court that "A simple lack of care, an error of judgment or of accident is not a proof of negligence on the part of medical professional - so long as a doctor follows the practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or measure of treatment was available or simply because a more skillful doctor would not have followed or resorted to that practice or procedure which the accused followed... whether he was negligent or not, the standard for judging him would be that of an ordinary competent person exercising ordinary skill in that profession". The above decision of the Apex Court clearly defines as to what should be called medical negligence and what should not. In the present case we find that the hospital and the attending physician had taken all possible actions to save the situation after they came to know about the damage caused to the patient due to an accident on the part of the attending surgeon and the actions taken like the second operation, putting the patient on ventilator and sending her to the ICCU - all go to prove that there has not been any case of wilful negligence, may be the doctor should have been more careful while undertaking the operation. In view of the facts and circumstances stated in the foregoing paragraphs we are inclined to say that the learned Forum had misdirected itself to pass the above Order on 4.3.2004. It is, therefore, directed that the said Order of the learned Forum dated 4.3.2004 be set aside. The orders and judgment of this case will also govern Case No. 152/A/2004 as the subject matter and parties are the same.

THE Appeal is therefore dismissed on contest without any order as to cost in Case No. 158/A/2004 and allowed on context in Case No. 152/A/2004 without any order as to cost. Appeal No. 158/2004 dismissed. Appeal No. 152/2004 allowed.