MATHURA MAHTO (MISTRY) vs BINDESHWAR JHA "BINDU"

THE complainant has filed the case for the following reliefs : (a) A compensation of Rs. 6 (six) lacs for mental agony and harrassment due to deficiency in medical service of O.P. (b) Rs. 2 (two) lacs be granted as the expense incurred by him in the treatment of his wife at various places. (c) A compensation of Rs. 2,50,000/- for establishing the business which he could not start due to protracted illness of his wife caused by deficiency in service of O.P. (d) Cost of litigation. Thus complainant has claimed a total compensation of Rs. 10,50,000/- against the O.P.

THE brief fact of the case is that his wife Rasamani Devi aged about 28 years has two children. She was suffering from stomach pain. THE O.P. has a private nursing home at Bettiah, West Champaran. THE complainant approached the doctor (O.P.) and on his advice she was hospitalised in his nursing home. THE doctor opined that she was suffering from gall bladder stone and advised for her immediate operation. THE complainant deposited his fee and she was operated on 4.2.1996 (Annexure-1). After her operation by the said doctor, her condition was deteriorating and after about a week doctor stated that she was suffering from jaundice and referred her to Indira Gandhi Institute of Medical Science, Patna for better treatment on 16.2.1996 (Annexure-2). THE O.P. (Doctor) also gave a letter of reference to Dr. Arun Kumar Jha, a doctor in the said Institute at Patna. In the said letter he mentioned that he is unable to understand why she was developed jaundice after the operation (Annexure-3). THE O.P. also wrote a letter to Dr. S.N. Mishra, the then Director of the Institute in which he mentioned that she developed jaundice after one week of the operation and also expressed opinion that it may be due to toxic effect of "cepriflaseas", etc. (Annexure-4). It is further case of the complainant that he got admitted his wife in the said Institute at Patna in the unit of Dr. C. Khandelwal and Dr. G.S. Choudhry vide C.R. No. 2600, I.O. No. 471, Ward G/S, bed room No. 21. In the said Institute the doctor opined that she was suffering from "Encysted Bilioma". In their opinion this complication was due to bulging part was esejslosed by needle aspin the site of puncture was confirmed. Huge amount of collected bile was drained out and the wound was closed on 17.2.1996. After some time she was again admitted in the said Institute on 14.3.1996 and she was discharged on 22.3.1996 (Annexure-5). She had developed again some problem and admitted in the said Institute on 30.7.1996 where it was finally diagnosed that she was suffering from BILIAR STRICTURE (Annexure-6). Since his wife was not fully cured and some problem continued he brought her to S.S. Hospital B.H.U. at Varanasi, where she was admitted on 23.8.1996. In the S.S. Hospital it was diagnosed that she was suffering from stricture C.B.D. of gall bladder. The same diagnosis was done at Patna Institute also and she was again operated at Varanasi on 2.9.1996 in which the doctor replaced the said C.B.D. of gall bladder (Annexures 7 and 8). She was discharged from Varanasi Hospital on 3.9.1996. This has remained confined on bed as her capacity of work is reduced to 60% since her first operation by O.P.

The main contention of the complainant is that the initial operation of gall bladder conducted by the O.P. at Bettiah was not properly done and the doctor (O.P.) was neither well qualified nor experienced to perform such operation. He performed the operation negligently. There was defect in the initial operation conducted by the O.P. which blocked and structured C.B.D. (Wain) of gall bladder by which the BILIOMA problems were created. She was having no problem of jaundice prior to operation at Bettiah. This problem developed due to defective operation of gall bladder. From the above annexures it is clear that the opinion of doctors at I.G.I.M.S., Patna and of Varanasi Hospital were identical which show that all the problems developed due to wrong operation conducted by the O.P.

IT is further case of the complainant that he is a mechanic of tractor and before the operation of his wife at Bettiah he was having good financial condition. He remained engaged with his wife for a long period running from Bettiah to Patna and, therefore, Varanasi due to which he could not look after his business. Due to huge medical expense and closure of his business, he suffered huge financial loss, mental agony and physical agony for which the O.P. is solely responsible. The O.P. appeared and filed written statement. His main contention is that wife of the complainant was operated by the O.P. (Doctor) at Bettiah on 4.2.1996. She was having stone in gall bladder. She was fully cured. After one week on 10.2.1996 on her complaint she was examined by him and he found jaundice. He immediately prescribed medicine and she was treated there till 16.2.1996. Her condition improved, thereafter, he referred the patient to I.G.I.M.S. for further and better treatment. He also wrote letters to the doctors of the Institute. This shows that he had all concern for the patient and he performed his duty of operation quite satisfactorily. He is qualified surgeon and he is performing several major operations including gall bladder regularly. The subsequent development of jaundice is not related with her operation of gall bladder. The diagnosis of "Encystem Bilioma" given at I.G.M.S., Patna is not uncommon post operative complications. She was treated at the Institute at Patna and bilioma was drained out. She was advised to report after one month on 22.3.1996 but she went to the Institute on 30.7.1997 where she was diagnosed as having biliary stricture (conservative). Thereafter without getting herself treated at the Institute at Patna she went to Varanasi for her treatment where also she was diagnosed as stricture C.B.D. Annexure 8 shows that she was operated at Varanasi for the same. The finding recorded at Varanasi mentions that "there was a stricture about 1 cm. long. It was about 1 cm. away from confluence". This finding indicates that C.B.D.(common bile duct) was not touched during the operation at Bettiah. The subsequent development as stricture cannot be attributed due to cholecystectomy. It is needless to say that there was many risks on the part of the O.P. while performing the operation of her gall bladder and allegation of C.B.D. blockade and stricture has nothing to do with earlier operation conducted by the O.P. The finding and opinion of the doctors at I.G.I.M.S Patna and of Varanasi has not mentioned or held that her subsequent problems developed due to negligence in her earlier operation of the gall bladder conducted by the O.P. There is no finding that biliary stricture has not been shown the cause of gall bladder operation performed by the O.P. Annexure-1 of the O.P. will show that he is a trained doctor of general surgery from D.M.C.H., Laheriasarai. The complainant was aware of the reputation of the O.P. in Laheriasarai as he is a competent surgeon and therefore he has brought his wife for treatment. The disease was rightly diagnosed by the O.P. and she was operated upon of gall bladder with all precaution which is required for a doctor at the time of operation. After operation she was in good condition for one week and thereafter she developed jaundice which has nothing to do with the said operation. After initial treatment of her jaundice, treating doctor in good faith and as duty bound referred the case to I.G.I.M.S., Patna for better treatment where she was treated. None of the annexure filed on behalf of the complainant shows that her operation of gall bladder by the O.P. was the reason of her subsequent problem. It is well known fact in medical science that accumulation of bile may occur in the right "sub-phrenic" or "sub-heptic region" even when provision for drainage appears to have been adequate. In the famous medical book "Farquhar Son''s Text book of operative surgery in the chapter "Risk of operation" dealing with such type of complication usually present with upper abdominal or chest paid associated with Tachycardia and a persistently low blood pressure but there was none in the present case and the patient was discharged by O.P. with advice to come after one month but in the meantime she developed jaundice. The finding arrived at by I.G.I.M.S., Patna clearly mentions that biliary stricture (conservative) meaning thereby, it was not due to her earlier operation but it was conservative. The same finding has been arrived at by the doctors at Varanasi. These enclosures make it clear that sticture in common bile duct was not due to operation but the same was due to fibrosion by stone which has been impacted sufficiently long to set up.

THE O.P. has chosen the line of treatment which is required for such ailment and she was operated upon with all care and precaution. No problem was developed during or after the operation. THE problems subsequently developed were not related with her earlier operation conducted by the O.P., therefore, the question of any negligence on the part of the O.P. does not arise. It is common fact that even inspite of best care and treatment, subsequent problems may arise to a patient for many reasons as happened in this case. THE complainant has failed to make out a case against the O.P. that he was negligent in discharge of his duty as a surgeon. On the other hand from the annexures and the case as made out in the complaint petition it is clear that the doctor was careful at the time of operation and when he found that she developed jaundice after a week of operation, he did his duty and referred her case to I.G.I.M.S., Patna with reference letters, his sincerity as required in the medical profession. From the facts mentioned above and the submissions made on behalf of the parties most of the facts in the case are admitted. She was operated by the O.P. at Bettiah. After one week she developed jaundice. She was referred to I.G.I.M.S., Patna by the O.P. where she was treated and after several months she developed some problem and then out of her own Will she went to Varanasi for treatment where she was also operated. The diagnosis arrived at I.G.I.M.S., Patna and Varanasi do not mention that her subsequent problems were in any way related with her earlier operation of gall bladder conducted by the O.P. The patient may develop subsequent problems which is a natural phenomenon in medical science as it appears in the present case. From a careful scrutiny of the annexures, particularly Annexures 5 to 8. It is clear that the collection of bile was due to litigation in C.B.D. which caused biliary stricture which was cured by timely surgical drainage at Patna. Thereafter, she developed some another problem for which she was treated at Varanasi. From the medical book as referred to on behalf of the O.P. "Farquhar Son''s Text Book of Operative Surgery at Page-592 and Principles and Practice of Modern Surgery by Asita Lal Som at Page-454", it is clear that stricture in common bile duct (C.B.D.) was not due to her earlier operation but the same was due to fibrosion by a stone which has been impacted sufficiently long to set up a fibrotic reaction. The diagnosis made at I.G.I.M.S., Patna mentions that biliary stricture (conservative) means it was not due to operation and therefore the doctor at I.G.I.M.S., Patna treated her on conservative line. From these annexures filed on behalf of the complainant, we are unable to come to the conclusion that she had developed these problems because of any fault committed by the doctor (O.P.) at the time of her operation of gall bladder. The complainant has failed to adduced any expert evidence to sustain the allegation made by him nor any other medical book to revert the contention of the O.P. who has relied upon the above two medical books produced at the time of argument. A medical practitioner is not insurer and he is not to be blamed every time something goes wrong. Indeed in medicine things can go wrong in the treatment of a patient even with the best of care, proper treatment found to have been given to the patient and so also proper care bestowed upon him both before and after his operation. As in this case there is nothing on record to come to the finding that the doctor (O.P.) had committed negligence in performing the operation of the wife of the complainant or there was any deficiency in service. The conduct of the doctor (O.P.) before her operation and after post operation shows that he was sincere in his duty when he found that after about a week of the operation the patient has developed jaundice, he himself treated her in his clinic and thereafter referred to I.G.I.M.S., Patna with a personal letter to the concerned doctor. This conduct on the part of the O.P. explains that he was sincere in his profession while treating the wife of the complainant. The O.P. has operated the wife of the complainant with his consent who has approached him (doctor) of knowing his reputation as a general surgeon. From Annexure-1 of the written statement it appears that doctor (O.P.) is qualified general surgeon.

HAVING considered the facts, evidences and the contentions carefully, we are of the opinion that the case of negligence against the O.P. (doctor) having been not established, the complainant is not entitled to any relief as claimed for Ms. Indira Kartha & Ors. v. Dr. Mathew Samuel Kalirickal & Anr., (N.C.D.R.C.) Page-189 relied upon.

IN the result, we do not find any merit in the complaint petition which is accordingly dismissed. However, there shall be no order as to cost. Complaint dismissed.