PRASANTA KUMAR CHAKRABORTY vs JAHAR DEBNATH

-APPELLANT was the complainant before the State Commission where they had filed a complaint alleging medical negligence on the part of the respondents/opposite parties.

BRIEFLY stated, the facts of the case leading to filing the complaint were that the second complainant married the deceased Smt. Jaba Roy. Admittedly, within a period of three years she had two miscarriages but when finally she conceived in September 1995, she consulted Dr. Sarkar, a Gynaecologist, who referred her to the first respondent for medical care and treatment. The first respondent attended on her on 31. 12. 1995 and later on 5. 5. 1996 and 16. 5. 1996. It was the case of the complainant that during all the visits, the first respondent assured them that delivery shall be normal. But when the deceased visited the clinic of the first respondent on 22. 5. 1996, she was admitted in the hospital the same day and she was advised that the baby would be delivered the same day through caesarean section. On 23. 5. 1996, at about 10. 30 p. m. after delivering a female baby by caesarean section, first respondent left. It was the case of the complainant/appellant that on 23. 5. 1996, the complainant developed pain in the abdomen and it was so severe that she could not go for urination and she was not provided with any catheter. It was the case of the complainant that as a result of such maltreatment, the patient''s surgical wound got ruptured and she started bleeding. The surgical wound was reopened and treated accordingly, but it was the case of the complainant that the condition of the patient deteriorated and she was bleeding profusely. On 24. 5. 1996 the respondent No. 1 reopened the surgical wound without taking the help of any Anaesthetist and when the condition of the patient became extremely critical, the first opposite party/respondent recommended the patient to be taken to Calcutta for treatment, where finally she was admitted in Woodland Hospital, where she was expired within few hours of admission. It was stated that the deceased died on account of medical negligence on the part of the respondents. It was also stated that nursing home was not properly equipped and was found to be in unsanitary condition. It is in these circumstances, in the first instance a complaint was filed before the District Forum, from where it was withdrawn and a fresh complaint was filed before the State Commission praying for a compensation of Rs. 10,00,000 on account of medical negligence on the part of the respondents. Before the State Commission, upon issue of notice, the complaint was contested by the respondents and the State Commission after hearing the parties and perusal of material on record, dismissed the complaint firstly, on the ground that there was no specific act of negligence alleged in the complaint and secondly on account of any expert evidence filed in support of their contentions of the appellant/complainant. Aggrieved by this order this appeal has been filed before us. We heard the learned Counsel for the parties at considerable length and perused the material on record.

There is no material on record to rebut the preliminary fact that the child was delivered through caesarean section. Four grounds were taken by the respondents before the State Commission for delivery through caesarean section, which are as follows: " (1) bad obstetrical history with recurrent miscarriage, (2) less foetal movement which caused foetal jeopardy, (3) persistent discharge of aminotice fluid - thus including potential rish of infection, (4) mild hypertension (140/90) which may further aggravate foetal compromisation.

THIS has not been rebutted in any manner by the appellant/complainant either before us or before the State Commission, hence the allegation of negligence of delivering the child by caesarean section and not through normal delivery cannot be sustained. As per material on record on 23. 5. 1996, Dr. Samad, a renowned surgeon, examined the patient and approved the treatment being given by the respondent. Subsequently, Dr. Bhattacharjee, Dr. P. M. Dutta and Dr. P. Sarkar, Physician, Surgeon and Gynaecologist respectively, were also consulted by the respondent and all of them recommended blood transfusion and it is on their advice that two bottles of blood were administered. Upon, again noticing soakage of wound at about 10 p. m. , Dr. Samad, was again summoned to review the case, who visited the respondent Nursing Home and in the presence of local MLA, who was present with the complainant, explained the situation and also suggested shifting to the patient to Calcutta and thereafter the patient was taken to Calcutta under the treatment of Dr. B. B. Sarkar, the Gynaecologist, who had been treating the deceased before she came to the respondent. Evidence has been brought on record by the Doctors, but admittedly no expert opinion has been brought on record to counter the opinion of the Doctors. As per law laid down by the Hon''ble Supreme Court in the case of Jacob Mathew (Dr.) v. State of Punjab and Another, III (2005) CPJ 9 (SC)=vi (2005) SLT 1=iii (2005) CCR 9 (SC)=122 (2005) DLT 83 (SC)=2005 (6) SCC 1, the onus of proof lies with the complainant. Their Lordships go on to observe in the cited judgment as follows: "the classical statement of law in Bolam case, (1957) (2) All. ER. 118, at p. 121 (set out in para 19 herein), has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners, in particular, and holds good in its applicability in India, In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. It is not necessary for every professional to possess the highest level of expertise in that branch which he practises. Three things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time (that is, the time of the incident) on which it is suggested as should have been used. Thirdly, when it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. "

IT is now well established by law of the land that it is for the complainant to allege, as well as to prove, that what the Doctor should have done, which he did not do, or, what he did, which should not have been done? In the present case, no such evidence one way or the other has been led by the complainant/appellant to prove the allegation of medical negligence on the part of the respondents. Their mere aversions do not help them to pass the Bolam test. In the aforementioned circumstances, in the absence of any proof to the contrary we are unable to arrive at any other conclusion than the one arrived at by the State Commission that the complainant has completely failed to prove his case of medical negligence against the respondents. At this stage, the learned Counsel for the appellant seeks time to bring fresh evidence by way of expert evidence. This appeal has been lying for the last seven years and has been taken up several times but when finally the case is fixed to final hearing, this prayer is made. We are unable to concede to this request at this later stage.

IN the aforementioned circumstances, we find no merit in this appeal hence dismissed.

IN the peculiar facts and circumstances of the case, parties to bear the cost. Appeal allowed.