SANJEEV KUMAR @ PAPPU KUMAR vs BIRENDRA KUMAR (DR.)

-THE complainant filed the complaint with a prayer for compensation of Rs. 19,96,301 only against the OPdoctors for negligence and deficiency in medical service rendered by them as detailed in the paragraph-11 of the complaint.

THE brief fact of the case is that sister of the complainant namely Manju Devi (wife of Raj Kumar Prasad) had third pregnancy and in the month of May 2001 she came to Patna from Ara and was residing with the complainant for safe and comfortable delivery. OP Nos. 1 and 2 are doctors who have jointly established their private clinic at Ashok Nagar, Kankerbagh, Patna in the name and style of M/s. Kumar Clinic and Maternity Centre (OP No. 3). It is alleged that OP Nos. 1 and 2 lured the complainant for keeping his sister Manju Devi under their treatment and they assured that their maternity centre is one of the well equipped and well managed centres in Patna town. THEy also assured that they would take the best possible care both before and after delivery with providing best medical facilities. THE complainant being lured and induced by OP Nos. 1 and 2 got his sister examined by OP Nos. 1 and 2 on 5th May, 2001. THEy advised for ultrasonography and accordingly the first ultrasonography of his sister''s foetus was done in Maurya X-ray at Kankerbagh and as per report everything was normal. O.P. Nos. 1 and 2 again advised for second ultrasonography of his sister which was done on 11.10.2001 in the said Maurya X-ray Centre, Patna and this report also showed that everything was normal and correct. His sister was in continuous medical treatment and care of the O.P. from 5.5.2001 to 9.11.2001. Annexures 1 to 5 has been filed in support of the above contention. It is further case of the complainant that on 5.11.2001 labour pains started to his sister and he brought his sister to O.P. No. 3 where O.P. Nos. 1 and 2 admitted her and performed the caesarean (L.S.C.S.) operation without taking consent of the complainant or any guardian and a male child was delivered at 10.30 p.m. to her on 5.11.2001. The two children born to his sister earlier were by normal delivery. In the opinion of the complainant there was no need of caesarean operation to his sister for the third delivery but without any valid reason his consent was done. It is further alleged that after the operation bleeding from her uterus and internal part of the body started excessively and her condition deteriorated. This fact was not disclosed by O.P. Nos. 1 and 2 to the complainant. The complainant made repeated request about the condition of his sister and also suggested them that if required she may be shifted to some better clinic under a qualified and eminent doctor for better treatment but both the O.Ps. did not listen to his advice and assured that she is in perfect condition.

It is alleged that when the condition of his sister deteriorated rapidly then O.P. Nos. l and 2 with a view to cover their mistakes and negligence they themselves brought his sister to the clinic of (Dr.) Mrs. Shanti Roy on 6.11.2001 who found her condition critical as her pulse rate was very low so also the B.P. She diagnosed that ultrasonography shows hemopatonea, two plus with the renal shut down and she advised for laparotomy of the patient and referred her to Ruban Memorial Hospital at Patna (Annexure-6). She was ultimately admitted to Ruban Memorial Hospital in its intensive care ward on 7.11.2001 where the biochemistry hematology and immunology have been done on 7.11.2001, 8.11.2001 and 9.11.2001 along with laparotomy but in spite of every effort the complainant''s sister Manju Devi died on 10.11.2001 at 8.40 a.m. at Ruban Memorial Hospital, Patna. The death certificate was issued which shows that his sister was suffering from post-operative haemorrhage and shock and multi organ failure and cardiac arrest (Annexures 7 to 13). Annexures 14 and 15 are the bills for the treatment of Manju Devi incurred at this hospital and the cash receipt.

AS per complainant on account of wrong diagnosis, unnecessary surgical operation, wrong treatment, wrong medication and deficiency in providing proper medical care at his sister led to her death. The surgical operation performed by O.P. Nos. 1 and 2 was unnecessary and in careless manner and they did not properly look into the report of ultrasound and ultrasonography. Her death was due to negligence of O.P. Nos. 1 and 2 who are not Gynaecologist but have possessed themselves as experienced Gynaecologist and they have duped him and did negligence act and deficient medical service to his sister resulting into her untimely and prematured death. On the above basis the complainant claimed the above amount against O.P. Nos. 1 and 2. On notice the O.P. appeared and filed written statement. Their contention is that there is no question of any allurement or assurance to the complainant by the O.Ps. The patient Manju Devi had earlier visited the O.Ps.'' clinic at the time of delivery of her second child, that delivery was normal. As such, the complainant and his sister Manju Devi were fully aware with the O.Ps. and their clinic from long before. They have approached the O.Ps. out of their own because they were satisfied with the service since long. During the third pregnancy the patient has come for the first time on 5th May, 2001 with p/v (bleeding) and she was treated in the clinic and became well and left for her home. At the time of her first visit she was having pregnancy of three and half months. She was administered medicine and was further advised bed rest before she left his clinic. She was earlier treated at Ara by local lady doctor but when the bleeding did not stop only then she had come to their clinic on 5.5.2001. She was advised ultrasonography which was done on 5th May, 2001 and after treatment her condition had improved. Thereafter the patient did not turn up to her clinic for long period though she was advised for regular checkup. She only came second time on 9.9.2001 with profuse bleeding. On this date she has shown to the O.P. the ultrasound report dated 6.5.2001 which mentions that there was clot near the uterus. As such everything was not normal. Before coming to their clinic on 9.9.2001 she was also treated at Ara where a lady doctor has advised for C.S. operation as it was a case of placenta blooding. The patient was treated in the O.Ps.'' clinic on 9.9.2001 and medicines were administered to her and her condition improved. She was also advised for ultrasonography but this suggestion was not acted upon by the complainant and only on 11.10.2001 after about one month of the advice the complainant came to their clinic with the report which mentions that single viable foetus of 35 weeks with placenta previa. Therefore, it is wrong to say that her condition was O.K.

IT is further case of the O.Ps. that complainant along with his sister again came to their clinic on 5.11.2001 with labour pains. She was bleeding as such advised emergency caesarean. The risk of the operation was explained to the attendant and only after getting written consent for the operation she was operated upon. The consent was given in writing by the brother of the patient which has been annexed as Annexure A. With the caesarean operation she gave birth to a male child on 5.11.2001 at about 10 p.m. On 6.11.2001 at about 1.30 p.m. when the patient was rising from the bed for bathroom she developed bleeding from abdominal scar but there was no bleeding from P/V. The O.Ps. did their best and also senior Surgeon Dr. R.P. Singh, an Associate Professor at P.M.C.H. and also a Lady Doctor Dipti Roy of N.M.C.H., Dr. Arun, Anaesthetics also visited on their call and they all carefully examined the patient. Her blood sample was taken and the complainant was asked to arrange the blood and she was blood transfused at about 3 p.m. Thereafter again she was examined by Dr. R.P. Singh and other doctors and the treatment followed for some time. The bleeding stopped but again on 6.11.2001 it started at about 6 p.m. The complainant was insisting to call Dr. Shanti Roy and the O.Ps. gave a call to her. The ultrasonography was again done as per advice of Dr. Shanti Roy and Dr. R.P. Singh and thereafter she was transferred to the clinic of Dr. Shanti Roy (Shivam Nursing Home). From there she was transferred to Ruban Memorial Hospital on the advice of Dr. Shanti Roy. O.Ps were in constant touch with the patient''s attendant till she was in the clinic of Dr. Shanti Roy. It is the contention of the O.Ps. that the above fact shows that O.Ps. who are husband and wife are qualified and competent doctors. O.P. No. 1 is a M.D. in Gynaecology and Obstetrics from Darbhanga Medical College Hospital. O.P. No. 2 Sushma Kumar is M.B.B.S. from Patna University. Therefore, both are qualified and having long experience in the field of Gynaecology and their clinic is well equipped since long time. It is their further contention that they had given proper care and treatment to the patient whenever she was brought into their clinic after caesarean operation. When she was bleeding the O.Ps. had called the senior doctors of Patna for checkup and they had seen the patient and also advised the line of treatment which was followed but it is sad affair that in spite of that her bleeding did not stop. Then she was removed to the clinic of Dr. Shanti Roy where also she was examined but as her condition started deteriorating she was referred to Ruban Memorial Hospital where she died on 10.11.2001 due to organ failure and cardiac arrest. Therefore, the O.Ps. have done the best which could have been done by a qualified doctor but some time in spite of all efforts the worst happens for which the O.Ps. cannot be held liable for negligence or deficiency in their service. There is nothing on record to show that they did not adopt the line of treatment which a qualified doctor should have done or their line of treatment was wrong not acceptable by the Medical Council. There is no literature of medical science on record produced on behalf of the complainant to show that line of treatment adopted by the O.Ps. were wrong and this has led to the death of the patient. There is also no expert opinion of any doctor in support of the contention and allegations of the complainant. Therefore, all the allegations of the complainant are imaginary, misconceived and in order to malign and extract money from the complainant. We have gone through the facts of the case as summarised above carefully and we are of the view that there is very little difference in the facts stated by both the parties. The complainant''s allegation that O.Ps. have lured him and gave a false assurance that they are qualified doctors and their Nursing Home is well equipped. This fact has been denied by the O.Ps. and their contention is that complainant and his sister have earlier attended their clinic at the time of second delivery and they have come to their clinic out of their own. The patient was bleeding when she was brought to their clinic having three and half months'' pregnancy. She was treated at Ara but when the bleeding did not stop they have approached them and after treatment she was cured and left for her village home. Thereafter again she was brought twice in critical condition. It is admitted that on 5.11.2001 she was brought to the clinic of O.Ps. and caesarean operation was performed on her and she gave birth to a male child. The contention of the complainant that this operation was done keeping them in dark and without obtaining their consent. The O.Ps. denied and filed Annexure A to show that brother of the patient Sanjiv Kumar has given written consent (Annexure-A) before caesarean operation and patient Manju Devi has also signed on this paper and written that out of her own will she is consenting for caesarean operation as well. In view of Annexure-A and having no evidence or affidavit in support of the contention of the complainant that caesarean was performed without their consent we accept the contention of the O.Ps. that they had obtained the consent of the patient''s brother before the operation.

THE contention of the complainant that O.Ps. are not a qualified Gynecologist and they are incompetent doctors and their clinic is not well equipped but there is no evidence in support of this allegation. On the other hand as referred to above the O.Ps. have filed photocopy of the certificate of O.P. No. 1 of M.B.B.S. from Patna Medical College Hospital and of M.D. from Darbhanga Medical College and he has done M.D. in Obstetrics and Gynaecology. THErefore, O.P. No. 1 has been able to show that he is a qualified doctor in the field of Gynaecology. His wife Sushma Kumar O.P. No. 2 is M.B.B.S. from Patna Medical College Hospital and it also shows that she is a qualified doctor. THErefore, we are of the view that this allegation of the complainant is without substance.

ANOTHER allegation of the complainant that there was wrong diagnosis, unnecessary surgical operation and wrong treatment with wrong medicine proves deficiency and negligence on the part of the O.Ps. and in the opinion of the complainant this was the cause of the death of his sister Manju Devi. On the other hand, as per contention of the O.Ps. and from the annexure filed on behalf of the complainant it is clear that the complainant''s sister was brought to the clinic of O.Ps. on 5.5.2001 and she was treated for her ailment of bleeding having a pregnancy of three and half months. She was cured and then left the clinic and she was advised for regular checkup. ANOTHER prescription of this clinic of the O.Ps. is dated 9.9.2001. On this date also she has come with bleeding problem of P/V and she was treated in this clinic by the O.Ps. and thereafter she left for her village home. Third time she was brought to this clinic on 5.11.2001 having labour pain and bleeding problem. This time she was treated and caesarean operation was conducted on her. These prescriptions filed on behalf of the complainant show that the complainant knew the O.Ps. from before. He has been visiting this clinic along with his sister out of his own will and she was having satisfactory treatment. Therefore, in between 5.5.2001 and 5.11.2001 he brought his sister to his clinic three times and all the times she was having bleeding problem of the pregnancy and she was treated upon by the O.Ps. in this Nursing Home. Admittedly she was operated upon for caesarean on 5.11.2001 and as per case of the O.Ps. after about 16 hours she started bleeding and thereafter she was examined by a Surgeon, another Gynaecologist and also by an Anaesthetics. Admittedly the patient who was referred to the clinic of Dr. Shanti Roy a noted Gynaecologist of Patna by O.Ps. has referred the patient to Ruban Memorial Hospital and admittedly she died there after treatment as per Annexures on record (Annexure 7 to 16). By Annexure 6 Dr. Shanti Roy of Shivam Hospital has referred the patient on 6.11.2001 itself when she has arrived in this clinic from the clinic of the O.Ps. She was admitted in Ruban Memorial Hospital on 7.11.2001 and died on 10.11.2001. The cause of her death mentioned in Annexure 14 of Ruban Memorial Hospital is that "she was suffering from post-operative haemorrhage, shock and multi-organ failure and cardiac arrest. Annexures 3 to 5 filed by the complainant show that O.P. No. 2 Dr. Shubhra Jha has got the patient ultrasound done on 6.5.2001, 19.9.2001 and lastly on 11.10.2001. These annexures support the contention of the O.Ps. that they had taken proper care of the patient and they adopted the norms of practice which a Gynaecologist do under such condition when a pregnant woman is brought before them with a report of P/V bleeding. From the above annexures and on consideration of the facts on record and the submissions made on behalf of the parties we are of the view that when the patient was brought third time to the clinic of the O.Ps. on 5.11.2001 she has been bleeding profusely (P.V.) C.S. and in order to save the patient and her child the doctor has performed caesarean on her for which written consent was obtained from the brother of the patient as per Annexure A filed on behalf of the O.Ps. There is nothing on record to support the contention of the complainant that this caesarean operation was not required to the patient and it was done without the consent of the patient''s relation. The O.Ps. who are experienced and qualified Gynaecologist for performing caesarean operation which they have thought necessary to save the life of the patient and her child under such critical condition in which she was brought before them on 5.11.2001. It is altogether a different that after the caesarean operation and delivery of a male child her condition started deteriorating due to bleeding and in spite of best medical opinion procured by the O.Ps. from eminent doctors of Patna she could not be saved. A Surgeon is not gifted with extraordinary skill nor is he expected to perform miracle. What is expected is whether the procedure adopted by him is acceptable to the medical profession. The complainant has failed to prove that the practice adopted by the O.Ps. i.e., performing caesarean operation was not acceptable to the medical profession in the condition with which the patient was brought before them. The Apex Court in the case of Achutorao Khodwa & Ors. v. State of Maharashtra, I (1996) CLT 532 (SC)=(1996) CTJ 950 held that ''the skill of medical practitioners differs from doctor to doctor. A very nature of profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duty to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Courts find that he has attended on a patient with due care, skill and diligence and as the patient still does not survive or suffers a permanent ailment, it will be difficult to hold a doctor to be guilty of negligence."

At the outset it may be observed that the complainant have adduced no expert evidence to establish his allegation of medical negligence on the part of the O.Ps. The annexures enclosed by the complainant do show that O.Ps. have adopted accepted line of treatment and took all precautions including pathological and ultrasound test regularly to the patient which are required for a patient under pregnancy and having problem of bleeding regularly. The complainant did not produce any medical journal, books or opinion of an expert doctor to prove his contention that under such circumstance the O.Ps. should have adopted a different line of treatment recognized under the medical science. When the patient was referred from O.Ps. to the clinic of Dr. Shanti Roy and subsequently to Ruban Memorial Hospital in their paper nowhere it is mentioned that she was wrongly treated by the O.Ps. or her caesarean operation for delivery of the child was unwarranted or it was done negligently. There is absolutely nothing in these papers to suggest that there was anything wrong either with the operation or with the care taken by the O.Ps. to the patient in her condition brought before the O.Ps. a caesarean operation under such critical condition is supposed to be considered a safe and effective technique for delivery. The O.Ps. have stated that if the caesarean operation was to be delayed it was risky both for the mother and the child because she was bleeding in spite of blood transfusion and other medicines administered to her. The Hon''ble National Commission in the case of Sri K. Venkataliah case reported in 2006 CTJ 334 (NC) held that a Surgeon is not supposed to be gifted with extra skills but is expected to perform his medical duty as that of an ordinary man but the procedure adopted by Doctor/Surgeon is acceptable to medical profession. The O.Ps. have stated that they have adopted the procedure for the welfare of the patient and her child in abdomen which was acceptable to medical profession. In rebuttal or in support of the complainant''s case we have no evidence of an expert before us. All the papers on record show that the treatment papers reveal that she was given all possible treatment and administered life saving drugs but with no avail. Surely the O.Ps. could not be blamed for this unfortunate event.

FOR what we have said above we find and held that the complainant has failed to prove its case as alleged against the O.Ps. and there is lack of any medical evidence or opinion of the expert in support of the allegations alleged by the complainant. Therefore, we do not find any merit in this complaint which is dismissed. In the fact and circumstances, no order as to cost. Complaint dismissed.