SAMIKSHA BAHTTACHARYA, MEMBER
The instant complaint has been filed by the complainant under Section 17(1)(a)(i) of the CP Act, 1986 against the OPs alleging deficiency in service.
The facts of the case, in a nutshell, that the complainant No. 1 visited the chamber of OP No. 4 with her husband on 30.01.2016 to undergo routine medical check up. After check up OP No. 4 advised for pathological test as Trans-vaginal USG.
Accordingly, the complainant No. 1 visited OP No. 1 for various diagnostic tests on 26.02.2016. OP No. 2, Consultant Radiologist prepared the report after examination and impression reveals that the RIGHT OVARIAN CYST, CHANGES OF POLY CYSTIC OVARIAN DISEASE IN LEFT OVARY and SMALL UTERINE FIBROID.
On 08.03.2016, OP No.4 namely Dr. SamarendranathMandal consultant Gynaecologist& Obstetrician planned for LAPAROSCOPIC OVARIAN CYSTECTOMY on the basis of the Trans-vaginal USG report. Dr. Mandal OP No. 4 advised for admission at Prince Nursing Home. OP No. 3 on 21.03.2016 at 7:00 am in empty stomach for ovarian cystectomy.
On 12.03.2016 again the complainant no.2 consulted with Dr. M.M.S. Zoha for second opinion where Dr. Zoha advised for LAPAROSCOPIC OVARIAN CYSTECTOMY on the basis of said USG report dated 26.02.2016 and further advised for some Blood Test, ECG & X-RAY.
On 12.03.2016, after the operation, the OP No. 4/doctor has written in operative note that “RIGHT OVARIAN CYSTECTOMY, AS PLANNED, IS NOT REQURIRED. In findings OVARIES RIGHT, NO FUNCTIONAL/PATHOLOGICAL CYST SEPTUM SEEN AT THE TIME OF LAPAROSCOPY and in indication:Right Ovarian Cyst as USG report done on 26th February, 2016. In provisional diagnosis, PCOS and Endometriosis (Right Ovarian Cyst) as per USG report done on 26.02.2016 Endometriosis was present”. The complainant deposited a lumpsum amount for the purpose of on-going treatment procedure. OP No. 4 did not advise any test like USG, MSRI, the present status of the actual problem before surgery. The complainants have stated that from the record of OP No. 3 it is clear that the OPs have jointly and severally failed to diagnose properly and no endeavour was made to identify the cause of suffering never created inthe mind of OPs No. 2 and 4 including any staff/doctor of both the OPs No. 1 & 3. The Doctor/OP No. 4 and his team was also grossly negligent for remaining silent without taking any adequate and effective care and caution or even informing the complainant no.1 in relation with the above mentioned treatment. The complainants have further stated that the acts of the OPs No. 2 & 4 are culpably negligent in the treatment of the patient both diagnostically, theraepu and the other OPs as arrayed are guilty of same negligence in particular, not following up the serious deteriorating condition of the complainant no.1. After the surgical procedure, the complainant sent an email to OP No.1 already offered to do USG for reassessment. The complainant No. 1 chose not to act upon that offer because the surgeon already confirmed through laparoscopic method. The complainant No. 1 was initially sceptical about such hurried decision of OP No. 1 and sent a letter with request to provide her all the material records, test lists, OT records of her treatment. After receiving such letter, OP No. 1 informed OP No. 1 informed the complainant No. 1 that the cyst may have been dissolved within the time period in between the date of diagnosis and/or the date of surgery. The complainant has further stated that OPs No. 1 & 2 failed to serve properly both in diagnosis and management. OPs No. 1 & 3 did not handover the medical records even after request made by West Bengal Health Service.The complainant was suffered due to the careless and negligent act of the OPs. At the time of the suffering, the patient wasunable to render proper care to her husband and the complainant No. 1 was in such a mental shock, trauma and helplessness, for which she is entitled to get the compensation for the loss and damages occurred due to such negligent act by the OPs which caused disastrous effects on the patient’s matrimonial life. The damage suffered by the complainant No. 1 and expenditure incurred in the treatment has been mentioned in schedule of claim mentioned in Para No. 20 in the petition of complaint. Hence, the application praying for direction upon the OPs individually and jointly to pay special damages/compensation and punitive exemplary damage to the complainant No. 1 as mentioned in the schedule of the petition of complaint along with litigation cost. Complainants have also prayed for taking appropriate action against the OPs for careless and negligent acts of the OPs and on the part of their duty in the treatment of the patient under the Indian Council Act, 1956 and also under the West Bengal Medical Council Act, and to pass an order/direction to the Directorate of Health Services, Government of West Bengal to run the Nursing Home/Hospital the OPs No. 1 & 3 for appointment of unqualified persons like nursing staff and Residential Medical Officer.
All the OPs appeared before this Commission and field their separate written version.
OPs No. 1 & 2 jointly filed written version on their behalf. OP No. 1 has stated in the written version of OPs No. 1 & 2 is that the case is not maintainable and liable to be dismissed summarily on the following ground. The complainant No. 1 has claimed a compensation of Rs.93,00,000/- as she had under the laparoscopic surgery by which her left ovarian functional cysts were removed. However, the right ovarian cyst, which was reported to be existing on 26.02.2016 was not found during the surgery done on 21.03.2016 and, therefore, no procedure was done.The Complainant No. 1 has claimed Rs.28,80,000/- for loss of future prospective service to the family, though at present she is absolutely fit and comes to this Commission with no apparent disability as per visual understanding of the Ld. Advocate for the OPs. It is further stated that no document is submitted that the patient had lost her ability to earn due to surgery. The complainant no. 1 had further clained Rs.10,00,000/- for future expenditure for treatment. However, no expenditure on the treatment is possible in the present case as on the date of operation, there was no other cyst in the ovary. The complainant No. 2 has also claimed a sum of Rs.15,00,000/- as emotional distress, pain and suffering for the fact that the complainant No. 1 has undergone the laparoscopic surgery which was necessary and required. The complainant No. 1 has also claimed a sum of Rs.15,00,000/- for pain, suffering for undergoing such surgery. But the same was necessary since her left functional ovarian cyst was removed. Therefore, the OPs No. 1 &2 have stated that the present complaint has been filed for an inflated claim without any justification whatsoever and as such, the present complaint be dismissed with exemplary cost.
The OPs No. 1 & 2 have also stated in their written version that before admitting a complaint, the complaint ought to have been referred for opinion of medical experts of specialized field before further proceeding in the matter citing the judgment reported in 2009 (1) CPJ 32 (SC). But here the complainant has not filed any expert opinion which makes the complaint bad in the eyes of law. The medical issues involved in this case is of so complicated in nature. Therefore, without medical experts of specialized fee, it would not be possible by this Commission to decide the matter and the voluminous evidence has to be recorded which cannot be possible by the Consumer Commission which are created for summary trial. The complaint has been filed only to malign the reputation of the OPs. The allegations made in the complaint involve not only complicated questions of facts of highly technical nature but to adjudicate the dispute the evidence of expert should be required which involve elaborate oral evidence and voluminous documentary evidence. This Commission has been constituted only to exercise jurisdiction in the simple cases.
To answer against the para wise statement of the complainant, the OPs No. 1 & 2 have stated that complainant came to the OP No.1 for Trans-vaginal USG, Plasma Glucose Fasting, Haematology and liver function test on 26.02.2016. The USG was done by OP No.2 and the proper report was prepared on the basis of the findings. A Trans vaginal ultrasound test uses high frequency sound waves to create images of the internal organs. Imaging tests can identify abnormalities and help doctors to diagnose the condition. This is an internal examination unlike a regular abdominal or pelvic ultrasound. It is a process by which better images are obtained thereby more precise diagnosis is possible. No complaint has been made with report of the biochemistry report.
It is reported that right ovarian is bulky measuring 53.5 x 38.2 x 66.1 mms (Volume 70.5 cc) and the entire ovary was occupied by a self-walled cyst being internal eco echogenic septae. It is alleged by the complainant that on 21.03.2016 i.e., on which date the laparoscopic procedure was done the same was not found. The OPs No. 1 & 2 has further stated in their written version, that there are multiple left ovarian cystswhich were operated and removed while operating the laparoscopic surgery on 21.03.2016. OPs No. 1 &2 uses PACS system for preserving the USG pictures it was taken and after complaint was made by the complainants, the same was reviewed by OPs No. 1 & 2 and after review it was absolutely clear that the report which was prepared by OPs No. 1 & 2 was correct report. The OPs No. 1 & 2 had also got the same reviewed internally by other competent doctors who had also opined that the patient was having a self-walled cyst having internal echogenic septae in her right ovary as was reported by the OPs No. 1 & 2. Ld.Advocate has submitted that the ovaries normally grow cyst-like structure called follicles each month. Follicles produce the hormones estrogen and progesterone and release an egg when a person ovulate. If a normal monthly follicle keeps growing, it is known as a functional cyst. It is further stated that it is well known to medical science that an ovarian cyst may rapture of its own with presentation ranging from no symptoms to symptoms mimicking an abdomen pain. Menstruating women have rapture of a cyst which is either asymptomatic or with mild transient pain (mittlelschmerz). In less usual circumstances, the rapture can be associated with significant pain. Although most patients require only observation, some need analgesics for pain control and laparoscopy or laparotomy for diagnosis or to achieve hemostasis. Some hemorrhage associated with ovarian cyst rapture has unclear etiology. The report which was prepared by the OPs No. 1 & 2 was correct report and subsequently when the surgery was done various human factors as well as the medicines like Femolin, which the patient was consuming may have caused the rapture of the cyst. It is well codified in the literature of Femolin that it sometime dissolves cyst.
It is stated that the cyst which was present on the date of USG can dissolve in one month time and the same is well codified in medical science. There was a gap of almost a month between the USG and the actual surgery. The smaller cyst as was seen in the USG and further seen and has not been the smaller cyst as was seen in the USG was seen by the surgeon and he had operated the same. Other allegations for claiming of compensation are denied by OPs No. 1 & 2.
The OP No. 3 has also filed separate written version. In their written version, OP No. 3 also denied all material allegations, inter alia, stated that the compensation as claimed by the complainant is baseless since he had undergone a laparoscopic surgery by which her left ovarian functional cysts were removed. However, right ovarian cyst, which was reported on26.02.2016, was not found during the surgery done on 21.03.2016. Therefore, no procedure was done. The complainantno.1has claimed for loss of future prospective service of the family though at present, the complainant is absolutely fit and no apparent disability as per understanding of the Ld. Advocate of the OPs. OP No. 3 has stated that there is no negligence on the part of the OP No. 3 as has been alleged as the care that was provided to the patient was as per standard protocol.The present complaint has been filed for inflated claim without any justification whatsoever and as such, the present complaint be dismissed with exemplary cost.
OP No. 4 has also filed the separate written version. In his written version, OP No. 4 also denied all material allegations inter alia stated that same version as stated in the written version of OP No. 3. All other allegations mentioned in the petition of complaint are denied by OP No. 4. Hence, all the OPs prayed for dismissal of the complaint case with heavy cost.
In course of hearing Ld. Advocate for the complainant has stated that on 21.03.2016 after operation by OP No. 4, OP No. 4 has written in the operation note that “RIGHT OVARIAN CYSTECTOMY as planned was not required.” Therefore, Ld. Advocate for the complainant has stated that all the OPs have jointly and severally failed to diagnose properly and thus no endeavour was made to identify the cause of sufferings and that never created any alarm in the mind of a single OP No. 2 & 4/Doctors including any staff/doctor of both the OPs i.e., OPs No. 1 & 3. OP No. 4 and his team members are also grossly negligent for remaining silent without taking any adequate and effective care and caution or even informing the complainant No. 1 in relation to the treatment. Therefore, the doctors being OPs No. 2 & 4 are culpably negligent in the treatment of the said patient both diagonostically and therapeutically and the other OPs are guilty of the same negligence, in particular, not following up the seriously deteriorating condition of the patient. In the written version of OP No. 2 in Paragraph No. 7, it is mentioned that the present complaint has been filed without understanding the fact that cyst can dissolve of it over a period of time. Ld. Advocate for the complainants has argued that if they knew these facts then why did not they re-check and/or re-verify the complainant No. 1 before the surgery for her right ovarian cyst . It is not possible for common man to understand the medical terms and conditions and/or symptom under procedure was done for the right ovarian cyst which not required. The doctor only drained the left ovarian cyst for whichthe complainant was not concerned. Hence, the Ld. Advocate has argued that ni reason was documented by OP No. 4 for removal of the left ovarian cysts whenthe issue was reported for the right ovarian cyst.
Ld.Advocate for the complainant has further argued that Dr. PinakPani Bhattacharya/OP No. 2, who is the consultant radiologist of OP No. 3 adduced the evidence on behalf of OPs No. 1 & 2 and during his examination he stated in Paragraph No. 3 (1) that the complainant had come to OP No. 1 for Trans- vaginal USG, Plasma Glucose Fasting, Liver function test on 26.02.2016. All the OPs have further stated that it is well known to medical science that the ovarian cyst may rapture of its own with presentation ranging from no symptom to symptoms mimicking an abdomen pain. As per report done by OP No. 2, OP No. 4 operated the patient and he has written in operation note that right ovarian cyst could not be found at the time of surgery. The complainant had to undergo a laparoscopic surgery for the main purpose of right ovarian cystectomy but only left ovarian functional cysts were drained as a concomitant surgery. OP No. 2 has suggested that having consuming medicine like Femilon which may have caused rapture of cyst and sometimes it dissolves cyst. Ld. Advocate has argued that if the radiologist had the knowledge that due to consumption of medicine like Femilon, cyst may dissolve then why just before the operation of the patient higher degree of care was not taken for further pathology test like USG. Prior to operation on21.03.2016, no consent was taken from the patient. Had it been the case that patient was informed prior to the operation that surgery was not necessary as the cyst of right ovary has raptured then the operation was not bat all required.The complainant no. 1 has undergonelaparoscopic surgery only for removal of bulky sized right ovarian cyst. Doctor did not take prior consent of the patient for surgery for left ovarian cyst. Therefore, the conduct of the OP No. 4 along with his associates suggests that the higher degree of care and protection was not taken and therefore it is a a case of medical negligence.Ld. Advocate for the complainants has relied upon the judgement passed by the Hon’ble Apex Court reported in AIR 1998 Supreme Court Page 1801 where the Hon’ble Apex Court has elaborately stated that where the higher duty of care is one of the consideration of medical negligence.
Ld. Advocate for the OPs has argued that in the written version of OPs No. 1 & 2, OP No. 3 and OP No. 4 all the issues have been discussed. In the Brief Notes of Arguments submitted by the OPs, the literature of PCOS is annexed. In its reply to questionnaire filed by the complainants OP No. 4 has clarified that USG can never be 100% correct about cyst for various complex reasons. The detailed reply of OPs is of relevance for understanding the complexities of cyst and conditions in detecting cyst.
Referring the Medical literature the Ld. Advocate for the OPs has further argued that “It is pertinent to mention that Follicular cyst are generally created by ovum egg cells which travels down a fallopian tube without getting bursted and as the complainant had multiple egg released at one time the ovum or the egg cells mimicked that of a cyst. A follicular cyst begins when the follicle/ovum/egg doesn’t rapture. It doesn’t release its egg and continues to grow and in the USG report it was seen as a cyst.”
The medical literature annexed with the BNA clearly aspects the following:
- Ovarian Cyst sometime can get dissolved of its own or due to medication.
- There are certain medicines which sometimes dissolves ovarian cyst.
- USG may sometime give false positive or false negative report in spite of best efforts due to certain limitations of the USG machines in general.
The literature of Cleveland Clinic clearly states that certain medicines can prevent and dissolve cyst.
The Ld. Counsel cited the judgment passed by the Hon’ble National Commission in Daya Singh versus C.V. Digital where the Hon’ble Commission has held that there are certain limitation of USG machines and for that limitation if report is not reflected the true condition the same is not negligence.
Upon hearing the parties and on perusal of materials on record it is admitted fact that the complainant was under treatment of OP No. 4 and visited the chamber of OP No. 4 on 30.01.2016 to undergo routine medical check up. It is also admitted fact that as per advice of OP No. 4 for Trans Vaginal USG, the complainant visited on 26.02.2016 the OP No. 1/Diagnostic Centre on 26.02.2016 for the same and OP No. 2 prepared the report after examination. The impression dated 26.02.2016 reveals Right ovarian cyst, changes of polycystic ovarian disease in left ovary, and small uterine fibroid. On 08.03.2016, OP No. 4 planned for Laparoscopic Ovarian Cystectomy on the basis of the USG report. On 12.03.2016 the complainant consulted with Dr. M.M.S Zoha for second opinion who also advised for Laparoscopic Ovarian Cystectomy along with some blood test, ECG and X-Ray.
As directed by OP No. 3 Nursing Home, the complainant deposited a lumpsome amount for the on-going treatment procedure. On 21.03.2016, after operation, the OP No. 4 has written in operative note “RIGHT OVARIAN CYSTECTOMY, AS PLANNED, IS NOT REQURIRED. In findings: OVARIES RIGHT, NO FUNCTIONAL/PATHOLOGICAL CYST SEPTUM SEEN AT THE TIME OF LAPAROSCOPY and in indication: Right Ovarian Cyst as USG report done on 26th February, 2016. In provisional diagnosis, PCOS and Endometriosis (Right Ovarian Cyst) as per USG report done on 26.02.2016 Endometriosis was present”.
It is the allegation of the complainant NO. 1 that she went through laparoscopic surgery unnecessary. The argument on behalf of OPs is that it is well known to medical science that an ovarian cyst may rapture of its own with presentation ranging from no symptom to symptoms mimicking an abdomen pain. Menstruating women have rapture of a cyst which is either asymptomatic or with mild transient pain (mitteschmerz). In less usual circumstances, the rapture can be associated with significant pain. The argument on behalf of the OPs is that the report prepared by OPs No. 1 and 2 was correct and whernsubsequently the surgery was done various human factors as well as the medicines Femilon, which the patient was consuming may have caused the rapture of the cyst. It is well codified in the literature of Femolinethat it sometimes dissolver cyst. Therefore, it is opined by the OPs that use Femilon caused rupture of the right ovarian cyst of the complainant no. 1. If it is so, then it must be explained by the OPs that use of Femilon caused rapture of large right ovarian cyst (measuring 53.3 x 38.2 x 66.1mms, Vol. 70.5 cc) then why that medicines did not rapture the small cysts present in the left ovary. Moreover, the medicine Femilon was prescribed by OP No. 4. Then when there was a significant period from the date of USG and the Laparoscopic Cystectomy then the OP No. 4/Doctor ought to have vigilant whether the right ovarian cyst remained same size which required laparoscopic cystectomy. From the written version as well as argument, on behalf of OPs it is stated that the USG report was correct. As per USG report, another Doctor namely, Dr. Zoha, with whom the patientconsulted for second opinion, also advised for laparoscopic cystectomy. Therefore,it may be assumed that advice for laparoscopic cystectomy as per USG report was correct but whether the report/impression was correct or not that is not clear. If the report was correct, then due to medication of Femilon, the small cysts would be ruptured. The surgery was planned for the large Right ovarian cyst. The surgery was not necessary for small left ovariancysts. Since the patient was under the treatment of OP No. 4 and as per his advice complainant no. 1 was consuming medicine Femilonthen repeat USG wasnecessary to determine the condition of cysts before the Laparoscopic surgery since there was a chance of rupture of cyst.
The medical literature on ultrasound and ovarian cysts, filed by the OPs with Brief Notes of Argument reveals that “Functional ovarian cysts usually go away without treatment. If your cyst is likely functional, your provider may suggest a wait and see approach. You may have follow-up within a few weeks or months after your diagnosis to see if your cyst has resolved on its own”. In the instant case, the op No. 4 neither waited noradvised for repeat USG before the procedure.
In that literature, filed by OPs, under the heading “Ovarian Cyst medications” it is written “Your provider may give your medications containing hormones (such as birth control pills) to stop ovulation and prevent future cysts from forming”. In this case medicineFemilon was prescribed. But the Doctor has not given due care to the patient whether the operation was required or not at the time of procedure.
A ruptured ovarian cyst is usually self limiting, and only requires keeping an eye on the situation and pain medications. The main symptom is abdominal pain, which may last a few days to several weeks, but they can also be asymptomatic. Rapture of large ovarian cysts can cause bleed inside the abdominal cavity is in some case chock. In the case in hand, the OP No. 4 has not asked the patient whether the patient has experienced any of the physical symptomps. The size of the right ovarian cyst was bulky, as per USG Report, therefore, the rapture was associated with physical symptoms. If there were no symptoms in this case due to rapture of bulky cysts then it obviously the question whether the USG Report was right or wrong. Since, Dr. Zoha also suggested the same, then as per report, the OP No. 4 planned for laparoscopic surgery. But all along, the OPs No. 1 & 2 have supported the OPs No. 3 and 4. If OP No. 4 had taken all corrective measures, then there may be wrong report done by OPs No. 1 & 2. OPs No. 1 & 2 never stated that since the USG report was correct, as claimed by them, OP No. 4 may have suggested further investigation before surgery and then the operation mightbe avoided. It is evident that unnecessary laparoscopic cystectomy was performed in the present case.Therefore, from the version of all the OPs, it is not clear that whether the USG Report was correct or whether the procedure taken by OP No. 4 was correct. OPs No. 3 & 4 support the version of OPs No. 1 & 2 and on the other hand, OPs No. 3 & 4 support the version of OPs No.1 & 2. As a result, we are of considered view, there is lack of proper care on the part of the OPs No 2 and 4/ Doctors before performing the laparoscopic cystectomy procedure on the patient.All through the OP.No. 2 has supported the OP No. 4.All the OPs further stated that not only the complainant No. 1 but also her advisors have very little understanding of law, medical science as well as English language. This type of statement should not be used against the complainant and her advisors. By no stretch of imagination it can be assumed that every common man possessesthe knowledge of law and medical science.
The argument on behalf of the complainant no. 1, that the due to this laparoscopic cystectomy procedure the marital life of the complainant no. 1 was hampered. But this argument cannot be acceptable since no cogent document comes forward to prove her claim.
In para 20 of the complaint petition, the complainants have mentioned the schedule of claim in which the complainants have prayed for Rs.28,80,000/- for loss of future/prospective service to the family due to mental stress and trauma and etc. in the capacity of homemaker from attaining 30 years up to 70 years of age @ Rs.6,000/- per month. It is pertinent to mention that we do not find any cogent ground for which the complainants have prayed for this amount since the laparoscopic surgery performed upon complainant no.1 may beavoided definitely but no document proves that surgery leads to hamper future prospective service of the complainant no.1 towards her family. Other expenditure mentioned in the petition of complaint on the heading ‘Pecuniary damages’ has not been proved by any document. The schedule of claim towards non pecuniary damages is for emotional distress, pain and sufferings of the complainant no.2 and the family. The complainant no.2 is the brother of complainant no.1/patient. In the four corners of the petition of complaint, it has not been stated how the complainant no.2 has suffered emotional distress and pain due to the incident as alleged by the complainants. The other incidental charge is mentioned towards pain and sufferings endured by the complainant no.1. It is our view that the laparoscopic surgery of the complainant no.1 would have been avoided if the OPs have taken the proper care. The OP No. 3 and 4 had performed the unnecessary laparoscopic cystectomy in a hurried manner on the basis of USG report done by OPs No 1 and 2.. For the lack of proper care the complainant no. 1 had to suffer mental, physical agony with financial loss and therefore, the complainant no. 1 is entitled to compensation for unnecessary harassment. Since the USG and laparoscopic surgery were performed in OP No. 1/ Diagnostic centre and OP No. 3/ Nursinghome, they are also liable to pay compensation. The relationship of Hospital/Diagnostic Centre and Operating Doctor/Doctor for the investigation are equally liable under vicarious liability. In the instant case the OP No. 1/Diagnostic Centre and OP No. 3/Nursing Home are vicariously liable for the acts of OP No. 2 and OP No. 4/Doctors.Therefore, the complainant no.1 is entitled to compensation since there is lack of due care on the part of OPs which care ought to have been taken by the OPs. The compensation should be awarded to the complainant no.1 since only she has gone through the procedure and the mental harassment was suffered by herself only. Her sufferings can be compensated in monetary terms since awarding compensation can heal her sufferings to some extent. Therefore, it is our considered view that the complainant no.1 is entitled to compensation for her sufferings due to medical negligence rendered by the OPs.
As a result, the complaint case is allowed in part.
Hence, it is
Ordered
The complaint case being No.CC/102/2018 be and the same is allowed on contest against all the OPs.
All the OPs are directed to pay compensation of Rs.1,00,000/-(Rupees One Lac ) only to the complainant no.1 within 45 days from the date of passing this order i.d the amount shall carry interest @ 6% p.a. till full realization.
The complaint case is, thus, disposed of accordingly.
