A.P. Sahi, President
1. This is a complaint arising out of an allegation of medical negligence against the OP-2, Gynaecologist Dr. Poonam Banka and the assisting Dr. Bindu Kedia, OP-3, who conducted a hysterectomy (surgery for removal of the uterus) and Bilateral Oophorectomy at the OP-1 hospital on 01.07.2010. The complainant no. 1 is the husband and the complainants nos. 2 and 3 are their children, who have come up in this complaint claiming compensation against the OPs to the tune of Rs. 1,25,00,000/-.
2. The matter proceeded with the admission of the complaint on 09.10.2013 when the following order was passed:
The complaint stands admitted.
Learned counsel for opposite parties 1 and 2 is present. Learned counsel for opposite party No. 3 is not present. He is absent despite service. He be proceeded against ex parte. It is very strange that when we were proceeding against opposite party No. 3, an advocate by the name of Shri Nishe Rajen Shanker comes and states that he is appearing for opposite party No. 3. He has given memo of appearance.
So far as opposite party No. 1 is concerned, the right of opposite party No. 1 to file the written statement shall stand forfeited under Section 13 of the Consumer Protection Act, 1986. So far as opposite party No. 2 is concerned, he was not served in this case. He filed the written statement alongwith opposite party No. 1 on 24.9.2013. It is not clear when it was served or when did he come to know about the pendency of this case. The opposite party No. 2 is given time to file separate written statement within 30 days from today. The opposite party No. 3 was served on 1.6.2013. He has not filed the written statement till now. His right to file the same shall stand forfeited.
The Apex Court in Dr. J. J. Merchant vs. Srinath Chaturvedi III 2002 CPJ 8(SC), was pleased to hold:
"..... From the aforesaid section, it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum or the Commission. For having speedy trial, this legislative mandate of not giving more than 45 days in submitting the written statement or the version of the case is required to be adhered to. If this is not adhered, the legislative mandate of disposing of the cases within three or five months would be defeated."
The matter is adjourned to 13.11.2013.
3. The OP-3 did not contest the matter and it is otherwise stated that she is not available in India. The OP-2 has filed her written objections and is represented by Mr. Kaushik Poddar, who has advanced submissions on her behalf.
4. The OP-1 hospital is represented by Advocate Mr. Sanjoy Kumar Ghosh and it was pointed out that the right of the OP-1 to file written version was forfeited under the aforesaid order dated 09.10.2013 and was challenged in Special Leave Petition (Civil) Nos. 11257-11258/2014 that was dismissed on 12.03.2024. The order of the Apex Court is extracted hereinunder:
1. Delay condoned.
2. Leave granted.
3. A consumer complaint was filed by the respondent-consumer before the National Forum. The respondent before the National Forum i.e. the appellant before this Court, could not file his written statement within the stipulated time and therefore, the right to file written statement has been closed by the National Consumer Forum vide its interim order dated 09.10.2013. Subsequently, the I.A. and review have also been dismissed.
4. However, the main ground for closing the opportunity as far as the appellant is concerned, is that under Section 13(2)(a) of the Consumer Protection Act, 1986 (hereinafter referred to as,„the Act‟), the written statement has to be filed within a period of 30 days which is only extendable for a period of 15 days. In other words, opportunity cannot be given to file written statement beyond the period of 45 days.
5. The learned counsel for the respondent has relied upon the Constitution Bench judgment of this Court in NEW INDIA ASSURANCE CO. LTD. VS. HILLI MULTIPURPOSE COLD STORAGE (P) LTD., reported in (2020) 5 SCC 757. In paragraph 33, it has been laid down as follows:
"33. Once the consequences are provided for not filing the response to the complaint within the time specified, and it is further provided that proceedings complying with the procedure laid down under sub-sections (1) and (2) of Section 13 of the Consumer Protection Act shall not be called in question in any court on the ground that the principles of natural justice have not been complied with, the intention of the legislature is absolutely clear that the provision of sub-section (2)(a) of Section 13 of the Act is specifying the time-limit for filing the response to the complaint is mandatory, and not directory."
6. Under these circumstances since the provision under Section 13(2)(a) of the Act is mandatory and not directory, we find no error in the order passed by the National Consumer Forum which has closed the opportunity of the appellant to file written statement.
7. The Appeals are accordingly dismissed.
8. Pending application(s), if any, shall stand disposed of.
5. It may however be pointed out that the OP-1 had moved an application being I.A. No. 6659/2021 for changing the array of parties as Apollo Multispecialty Hospital Ltd. The said application was allowed on 23.09.2021, which is extracted hereinunder:
An Application being IA/6659/2021, has been filed by the Opposite Party No.1 for substituting the name of the Opposite Party No.1 from Apollo Gleneagles Hospital Limited to Apollo Multispeciality Hospitals Limited. Heard Mr. Sanjoy Kumar Ghosh, learned Counsel appearing for the Applicant/ Opposite Party No.1 and perused the averments made in the Application. The Application is allowed and the name of the Opposite Party No. 1 be substituted from Apollo Gleneagles Hospital Limited to Apollo Multispeciality Hospitals Limited.
6. The Office shall take notice of this nomenclature and carryout the same.
7. It may be pointed out that the matter had been adjourned in 2018 due to the pendency of the Special Leave Petition before the Apex Court referred to above that was dismissed on 12.03.2024. On a letter received from the learned counsel for the complainants, the matter was fixed on 15.05.2024 when the following order was passed:
The Opposite Party No.1 may file his evidence within one month in rebuttal in the evidence of the Complainants. The Opposite Party No.2 is also granted one month time to file their evidence.
IA/7022/2013 shall be considered at the time of final argument. All the Parties may file their written submission within two weeks before next date fix for hearing.
List on 09.08.2024.
8. On 02.08.2024, I.A. No. 11708/2024 was filed by the OP-1 and I.A. No. 11709/2024 was filed for grant of exemption from filing typed copies of hand written dim documents. Both the applications were disposed off on 09.08.2024 by the following order:
OP-1 has filed evidence alongwith IA/11708/2024 praying for condoning the delay in filing the same. The IA is allowed. Evidence is taken on record.
IA/11709/2024 is for grant of exemption from filing the typed copies of hand written/dim documents. Learned counsel submits that the same typed copies shall be filed within a period of six weeks.
As a last opportunity, OP-2&3 are given one month's time to file evidence, if not already filed. All the parties shall file synopsis of their arguments within one month thereafter.
List the matter for final hearing on 12.12.2024 as item no.1 in the list of Inconvenience final hearing cases. The parties may file the convenience compilation after exchanging with each other before the next date of hearing.
9. The medical records were filed by the hospital. Then the matter was adjourned on a couple of occasions with liberty to file written submissions. The matter was finally heard on 25.02.2026 when Mr. T. V. George advanced his submissions to which Mr. Sanjoy Kumar Ghosh, learned counsel for the OP-1 responded and Mr. Kaushik Poddar, learned counsel for the OP-2 also advanced his submissions. Learned counsel for the parties have relied on the written submissions as also a convenience compilation filed by the OP-1 with the medical records in seriatim. These medical records have been referred to by the learned counsel to advance their respective submissions.
10. Mr. George, learned counsel for the complainants has filed his written submissions on 03.02.2025 vide a diary no. 3385 and Mr. Ghosh, learned counsel for the OP-1 has filed his written submissions on 08.02.2025 vide diary no. 3436 that are on record. Over and above this, Mr. George, learned counsel for the complainants has handed over a brief synopsis during the course of hearing for assistance. From the said written submissions, it is gathered that in 2013, a complaint against the doctors had been filed by the complainants before the West Bengal Medical Council that was dismissed. An appeal was filed before the Medical Council of India that was dismissed on 08.08.2014 upholding the order of the West Bengal Medical Council.
11. This order of the Medical Council of India passed in appeal was challenged before the Delhi High court in Writ Petition (c) no. 6541/2014 and an interim order was passed in favour of the complainants on 26.09.2014. The order of the Ethics Committee and the aforesaid interim orders were filed as evidence by the complainants on 07.04.2015 vide a diary no. 13144.
12. The said Writ Petition was allowed on 20.11.2017, the judgement whereof is extracted hereinunder:
1. None appears for the petitioner.
2. The petitioner has filed the present petition, inter alia, praying as under:-
"(i) Call for the records of proceedings of the Ethics Committee of Medical Council of India in relation to Appeal No. MCI-211(2)(44)/2013- Ethics/2123685.
(ii) Issue a writ of certiorari or any other appropriate writ or order to quash the order dated 08.08.2014 in appeal no. MCI-211(2)(44)/2013- Ethics/2123685 passed by the Ethics Committee of Medical Council of India.
(iii) Issue a writ of mandamus or any other appropriate writ or order to permanently remove the name of the respondent no.1 from the role of registered medical practitioners maintained by the West Bengal Medical Council and by the Medical Council of India and in case of Respondent No.2 for a period of 3 years.
(iv) issue appropriate direction to the Medical Council of India to ensure that it‟s Ethics Committee does not act in a totally partisan manner by including persons other than medical practitioners in the Ethics Committee or by any appropriate methods deemed fit by this Hon‟ble Court.
(v) Award cost of legal proceedings to the petitioner."
3. The petitioner has filed the present petition alleging Medical Negligence on the part of respondent nos. 1 and 2 in the treatment of his wife Ms Anita Prasad (since deceased and hereafter „the patient‟). It is alleged that the patient was suffering from certain gynaecological problems and used to experience pain and bleeding during her periods. This led the patient to consult respondent no.1, who was at the material time working at Apollo Gleneagles Hospital, Kolkata. On her advice, the patient agreed to undergo total Abdominal Hysterectomy with Bilateral Salpingo Oophorictomy. The said surgical operation was conducted on 01.07.2010.
4. The petitioner alleges that the patient complained of severe abdominal pain after the patient regained consciousness, which continued to increase to excruciating levels. He alleges that the doctors ignored the same and continued to dismiss the patient's pain as post operative effect. It is stated that after three days that is at 6.00 p.m. on 03.07.2010; Dr J.B. Roy, a Senior Surgical Consultant of Apollo Gleneagles Hospital was consulted who advised CT scan of the abdomen for evaluation. The CT scan, which was conducted on the same day indicated that there was waste material and gas collected at the peritoneum of the patient due to a suspected bowel injury.
5. The petitioner alleges that bowel perforation was inflicted during the operation, however, the same was not detected till 03.07.2010. The second operation was conducted on the patient on 03.07.2010 and it is alleged that the note recorded by the attending doctor reads as under :
"it is recorded:(1) 1.5 x 1.5 cm perforation (Anti- mescenteric border) of ileam, about one foot proximal to 1C - (2) Faccal peritonitis, about 1 litter of Faeculent collection in peritoneum (3) small (2 cm long) longitudinal (along the axis of vessels) tear in mesentery to."
6. Respondent no.1, who had conducted the first operation, has filed a counter affidavit, inter alia, affirming that there was a point perforation of size approx. 2mm in the antimesentric border of terminal ileum within 1 feet of ileocaecal junction. There was no other injury anywhere. However, 2 cms of mesentery (a very thin and broad film which is attached to one border of intestine) got torn while doing second surgery, which was repaired then and there. It is further stated that the perforation post hysterectomy cannot be termed as negligence. It is further stated that bowel perforation is a known complication of hysterectomy and occurrence of a known complication post surgery does not amount to medical negligence. Respondent no.1 further suggests that the same had occurred during the second operation and not the first.
7. A bare perusal of the impugned order indicates that none of the aforesaid issues such as whether the bowel perforation had occurred during the first surgery; whether it was a normal complication; and whether it ought to have been detected within a period of two days from such operation have been specifically considered. The Ethics Committee of the MCI has simply concluded - without any discussion as to the aforesaid issues - that there were post operative complications of perforation of the small bowel and was duly attended diagnosed and treated.
8. In view of the above, the impugned order is set aside and the matter is remanded to the MCI to consider it afresh in the light of the submissions made by the petitioner in the present petition and to examine whether there was any medical negligence on the part of the attending doctors. The Ethics Committee shall specifically deal with the allegations made in the present petition and give their opinion thereon.
9. It is clarified that this order has been passed only for the reason that the impugned order has not made any specific observations regarding the allegations made in this petition.
10. This court has not expressed any opinion on the question whether the respondents have been negligent or not and nothing stated herein should be construed as such.
11. The petition and pending applications are disposed of with the aforesaid directions.
13. These are subsequent developments that have been stated in the written arguments filed by Mr. George, but the final order of the High Court of Delhi quoted above has been produced during the course of hearing.
14. Mr. George also produced a copy of the order passed by the Medical Council of India after remand by the High Court of Delhi. The order dated 16.03.2020 according to Mr. George was received by the complainants when he moved an RTI application in 2024 and the same was supplied vide a letter dated 23.04.2024. The letter dated 23.04.2024 and the order of the Medical Council of India dated 16.03.2020 are extracted hereinunder:
15. We have accepted these documents on record as they relate to proceedings arising out of a judicial order of the High Court of Delhi and have been tendered by none else than by the complainants. Mr. Poddar, learned counsel for the OP-2, however, indicates that he did not have the copy of the said order.
16. The allegation against the hospital is that the patient died on 13.07.2010 and the dead body was not released till the payments had been made by complainants. In this regard, Mr. Ghosh has responded by contending that certain post-dated cheques have been furnished by the complainants that had bounced and dishonoured due to insufficient funds, as a result whereof proceedings under Section 138 of the NI Act had been taken. He has however denied the contention of the complainants that the dead body had been withheld for the said purpose.
17. Mr. Ghosh appearing for the hospital has urged that all the nurses daily assessments, the progress report as well as the allegations contained in the complaint do not make out any case of negligence against the hospital and even otherwise the doctors have taken full care in order to treat the patient carefully that has been done with no evidence of any negligence against the hospital. He therefore submits that the complaint deserves dismissal as against the OP-1 Hospital. He has also adopted all the arguments advanced by Mr. Poddar on behalf of the OP-2 to urge that due care was taken and the doctors were possessed of full skill and were duly qualified with all the experience that they had for treating the patient effectively in order to secure the best outcome. He has also invited the attention of the Bench to the averments contained in the reply of the OP-2 where the qualifications and the team of qualified of qualified experts who conducted the surgery has been disclosed in paragraph 1(e) as follows:
(e) The surgery was conducted by a team of qualified, expert and experienced team of doctors headed by O.P. No. 2( MD, DGO, DNB, MNAMS) who has an experience of 21 yrs. of doing surgery and was assisted by O.P. No. 3 Dr. Bindu Kedia (MBBS, MD).O.P. No. 2 has an experience of independent practice of 21 years and a working experience of 25 years after MBBS (i.e. MBBS-1986, DGO-1990, MD-1992, DNB 2000-01, MNAMS was awarded in 2002). She had been with Apollo Hospitals for 13 years. (initially in Apollo Hospitals - Chennai, subsequently Founder and HOD of Ob-gyn Department. Apollo Hospitals - Bilaspur and then Senior consultant in Apollo Gleneagles Hospital Kolkata, for 3 years). All are tertiary care Super-multi-specialty referral Hospitals, which checks Doctor's qualifications, expertise and compatibility, stringently before assigning them a responsible position of senior consultant or in-charge of the Department.
During all these years of her responsible duty, she had performed thousands of major/ complicated/ high risk surgeries. Throughout her career she has been trusted as a dependable expert, dedicated to her duty, dealing with various types of referred and complicated cases and never had any such complaint so far, by anybody in her long career.
18. He has again pointed out to refurbish the arguments about the competence of the doctors employed by the hospital by referring to the para- wise reply on the merits contained in paragraph (d) as follows:
d) That the averments made and contentions raised in sub para (f) of para 4 are blatantly wrong and emphatically denied. It is submitted that reckless allegations in the sub-para under reply have been made against O.P. No.2, which are totally without any material basis. With regard to the competency of OP No. 2 herein, and her ability to perform hysterectomy, it is important to note that O.P. No.2 has an experience of independent practice of 22 years and a working experience of 28 years after MBBS (1986), DGO (1990), MD (1992), DNB (2000-01), MNAMS was awarded in 2002. She worked with Apollo Hospital Group for 13 years, initially in Apollo Hospitals Chennai, subsequently founded & headed Obstetrics Gynecology Deptt., Apollo Hospitals Bilaspur, and now in Kolkata for 2 years. She also had been relied upon to take responsibility of Obstetrics Gynecology Deptt., of various other Apollo Hospitals (Madurai, Aragonda), when Senior Consultant used to go on leave. She always had been trusted as dependable, expert, dedicated Consultant to her duty performing all types of Gynae pelvic Surgeries successfully, dealing with various types of referred and complicated cases including hysterectomy and she had never any complaint so far in her long career.
Moreover, be it noted that O.P. No.2 had initially refused to operate because of O.P. No.2's non availability for post operative care i.e. care after performing operation. But it was complainant who insisted that the surgery be conducted by O.P. No.2 only, and accordingly decided to wait till her return. Such allegation on the efficacy and competency of the Hospital and the treating doctor is false and incorrect and hence denied.
19. We have referred to the arguments of Mr. Ghosh at the outset on behalf of the OP-1 as the major contest is between the complainants and the stand taken by the OP-2.
20. Mr. George, learned counsel, advancing his submissions, urged that this is a case of delayed diagnosis and failure to act promptly. He has invited the attention of the Bench to the documents to urge that as a matter of fact while the hysterectomy was performed, the intestines were injured which stood established after the same was detected by Dr. J. B. Roy, the Consultant Surgeon, who after suspecting the bowel injury on 03.07.2010, advised CT abdomen whereupon the same was confirmed and an exploratory laparotomy was performed by Dr. J. B. Roy on 03.07.2010, but by that time, the perforation in the bowel which was 1.5cm x 1.5cm at the antimesenteric border of ilium had created complications resulting in perforation and accumulation of 1ltr of feculent collection. The laparotomy was conducted, stitching the perforations and the peritoneal fluid that was sent for culture indicated the presence of a dangerous bacteria klebsiella. The infection is described as Vre (vancomycin resistance enterocoeci).
21. The contention of Mr. George is that the surgery is not only a hysterectomy, but also a bilateral salpingo oophorectomy which is the removal of the two ovaries. His contention is that while performing this, the bowel injury was caused on account of the inefficient and negligent hearing of the surgery by the OPs-2 and 3. However, the patient had started complaining about abdominal pain which stands recorded in the hospital and surgical notes that have been placed in the convenience compilation as also filed along with the reply of the OP-2. Mr. George has also argued that this surgery on 01.07.2010 has been performed without any adequate informed consent and also the consequences of such surgery.
22. He also urged that this was not a laparoscopic surgery where such injuries can happen, but this was an open incision surgery. As such there was no scope of any accident, but it was the careless performance of the surgery that led to this complication.
23. Mr. George pointed out from the typed copy of the medical records that at 11.54am on 01.07.2010 after the surgery, the patient was conscious, but her tongue was moist, which was a symptom of dry mouth. The same situation continued at about 3.55pm. On the next day i.e. on 02.07.2010 at 7.50am, the patient complained of chest pain and was feeling nausea and vomiting. Upon which, he was advised medicine and then the patient was reported to be doing well, but on the same day at 2.00pm, the patient reported perspiration and an upper abdominal pain. It is urged that this pain was one of the first symptoms and at 4pm, the pain was again complained of. At about 5.20pm, it is urged that there was some unusual discharge that was seen and the pain continued which was so severe that pethidene had to be injected and a pain killer on emergency was also advised. Mr. George submits that this unusual discharge can be related to what is known as a discharge due to the use of per- speculum. Parties were at variance on this and after checking through the internet, they have informed that per-speculum is an instrument utilised to check the vagina. Mr. George submitted that the plus sign was an indicative of some discharge which was unusual and might have been an infection, but no care was taken to examine the said symptoms of discharge. It is then urged that on 03.07.2010, the patient complained of shortness of breath. According to him, this was also one of the added symptoms of the complications having already begun and ps plus was again recorded. Mr. Ghosh contested this nomenclature by urging that it indicated a peritoneal sound, but at the same time, as observed above, learned counsel also referred to per-speculum, which is an instrument utilised for checking the vagina. The argument of Mr. George is that the plus sign was once again indicated and the unusual discharge was continuing which was nothing else but an infection.
24. He has then urged that on the same day, tablet Cefakind was advised which is a tablet prescribed for such infections and the pain had not subsided as a result whereof a pain killer Paracef was also prescribed. The progress sheet dated 03.07.2010 also records that Dr. Suresh, who is the Incharge of the ICU was called upon to review, who visited the patient and then indicated the symptoms of cold extremity. Mr. George submits that this is a clear symptom of loss of blood and such coldness can be referable to such complication which was again overlooked. Apart from this shortness of breath was also recorded and accordingly ECG and oxygen saturation level was directed to be observed 4 hourly. At 1.30pm, the breathlessness and uneasiness was coupled with a recording of the pulse being feeble which was yet another indication of leakage and bleeding. On being contacted, the OP-2 advised to contact Dr. Suresh who in turn advised the shifting of the patient to the HD Unit. The patient was not feeling well and the pulse being feeble, Dr. Suresh advised to shift her to the ICU and a Cardiologist was also called for. The patient continued to be restless and agitated with cold extremity and the oxygen saturation level started falling down at about 3.45pm on 03.07.2010. Still the impression indicated was shortage of breath and no other investigation was carried out related to the surgery. At about 3.45pm, the patient was assessed for anaemia, low blood pressure as well as lack of liquids and it is after almost three days that for the first time urgent Ultrasound of the abdomen was advised.
25. Mr. George submits that this advice came very late after more than 48 hours of the surgery in spite of the fact that symptoms of pain, shortage of breath, lowering of the oxygen saturation level and the unusual discharge all indicated complications. It is at that stage that Dr. J. B. Roy, a senior Surgeon was consulted with the ultrasound report indicating a distended bowel loop. Dr. Roy assessed the said report and at about 6.00pm, he suspected a bowel injury (unlikely) and therefore in order to confirm the first impression, a CT abdomen to evaluate the condition of the abdomen was advised. A chest X- ray was also carried out and the patient was kept under observation when at about 9.40pm, when the CT scan was completed that the diagnosis was arrived at Hydro Pneumo peritonium. The same was discussed and Dr. J. B. Roy advised Exploratory Laparotomy stat and the patient was shifted to Operation Theatre after taking high risk consent. At this stage, Mr. George invited the attention of the Bench to the surgical notes of this laparotomy which indicated the damage of the intestines with perforation of 1.5cm x 1.5cm. It is this injury which had caused the Recurrent Operative Faecal Peritonitis.
26. On 04.07.2010, the patient continued to have cold extremities with the oxygen saturation level falling down to 82%. The patient had been shifted on ventilator during the laparotomy and it was continued accordingly. On 04.07.2010, she was reported to be awake with medications being given, which continued with the support of ventilation and the weaning of the ventilation was withheld. On 05.07.2010, the patient family was informed that she was on a border line condition, but the situation did not improve and she remained in a critical condition and continued on ventilation. The oxygen saturation level fluctuated, but was reported to be clinically status quo with a poor condition. A medical board was constituted on 08.07.2010 for consultation with a specialist of infectious diseases, when it was informed that an uncommon bacteria infection of VRE. The treatments that followed did not improve the situation and on 09.07.2010 at 8.00am, the impression recorded is of the peritonitis with Klebsiella and VRE, sepsis with candida and bilateral pneumonia. The impression was poor condition of the patient that was informed to the family of the patient. At about 6.00pm, the growing impact of VRE was noted and medicines were prescribed and gradually the patient went drowsy on 10.07.2010.
27. With the said progress and with no improvement, the infection had set in and the patient could not withstand the complications that had set in including sepsis, as a result whereof on 13.07.2010, the family members were given the impression that the patient would not survive any further and on the same day at 5.00pm, she expired.
28. Mr. George therefore urged that this entire history as recorded establishes that the perforation of 1.5cm x 1.5cm that had occurred during the surgery of hysterectomy stood confirmed with the laparotomy that was conducted on 03.07.2010 and had this care been taken immediately after the symptoms had been reported, she would have in all probability survived, but for the negligence of the OP-2.
29. Mr. George also pointed out towards the claim of compensation urging that the same had been claimed and for that he has given a short written note extracted hereinunder:
30. Mr. Poddar appearing for the OP-2 advanced his submissions with a short written notes and he also heavily relied on the order of the Ethics Committee of the MCI dated 16.03.2020 that has been placed before us and extracted hereinabove. His written submission is extracted hereinunder:
31. On an appraisal of the aforesaid facts and the submissions raised, the period on the basis whereof the argument regarding negligence has been advanced is between 01.07.2010 and 03.07.2010. the surgery consisting of hysterectomy and bilateral salpingo oophorectomy (removal of ovaries) was performed on 01.07.2010. On a perusal of the medical records as discussed above, the patient was conscious and there were no complaints which would indicate any symptom to apprehend any leakage in the abdomen. The hospital sheet also indicates timely attendants by the doctor and the hospital staff. The first signs of a chest pain were reported by the patient on 02.07.2010, but at the same time the patient was reported to be doing well. It is in the afternoon of the same day that the patient reported some perspiration and only an upper abdominal pain followed by a complaint of pain in the abdomen. It can thus be seen that these signs of pain were witnessed and medicines to that effect were also administered. In the evening, the pain had increased as such pethidine and a pain killer was advised. However, we may point out that it was a complete abdominal hysterectomy with the removal of the ovaries and was an open incision surgery as such post-operative pain on the next day cannot be said to be unusual or something extraordinary so as to apprehend any bowel injury. Pain after surgery is known particularly in the type of the surgery performed on the patient. To assume that the administration of Pethidine and advice of a strong pain killer should have been sufficient to infer a bowel injury may not be a correct approach and cannot be, therefore, in our opinion a negligent assessment. The patient was attended to and the pain killers were accordingly advised.
32. Coming to the chronology of events, it is correct that some abdominal pain had been indicated on 07.07.2010, but the restlessness and the shortage of breath came to be prominently observed on 03.07.2010. It is then that an Ultrasonography was conducted and Dr. J. B. Roy, the Senior Surgeon was consulted immediately. The advice was to get a scan done and it is on 03.07.2010 that within 48 hours that the scan indicated the perforation. The second surgery was immediately performed by Dr. J. B. Roy who rectified the same.
33. The patient however developed complications thereafter and then also came to be infected by a very rare VRE bacteria, the medicines whereof are hardly effective to check the same, but it was tackled immediately upon being detected. Thus, the treatment was undertaken promptly by surgical interventions as well as by prompt administration of medicines.
34. This explains the competence of the doctor including the OP-2, who herself had more than 25 years of experience as a Gynecological Surgeon when the incident occurred. We have already indicated the relevant pleadings that have been extracted herein above which establish the competence and the qualifications of the doctor attending on the patient. Thus, it cannot be said that they were not qualified or eligible.
35. The contention that they did not exhibit the minimum level of skill that was expected of them is not a correct argument for the reason that there is no grievance about the diagnosis or the procedure that was decided to be performed on the patient. There is no error of judgment so far as the line of treatment is concerned nor do we find that to be the case of the complainants. The primary grievance is the handling of the surgery which according to the complainants caused the perforation. In this regard, we may refer to the submissions on behalf of the OP-2. The Medical Journal of Telinde on Operative Gynaecology referred to by the OP-2 states that the complications from hysterectomy are possible and may arise which include injuries to adjacent organs including the bowel. A reference to the same has been made by the learned counsel from the extract of the Textbook of Gynecology by D. C. Dutta. These are therefore known complications, may be rare. We may further point out that from the record it is evident that the surgery was planned for a complete hysterectomy and the removal of the ovaries which also involved a bulky uterus, uterine fibroid and thickened endometrium walls. The performance was therefore a complex exercise. These facts are noted even in the death summary of the patient.
36. The complications of such a surgery have been discussed in the medical textbook of Williams Gynaecology, copy whereof has been filed on record. Endometrial surgical procedures do involve such complications even though a bowel injury is relatively uncommon, yet it is a known complication. The doctor in the present case was neither incompetent or less qualified and therefore the occurrence was neither deliberate nor neglectful. These risks involved were not unknown even to the patient or to her family. This is evident from the consent form that has been filed as Annexure R-2 at page 64 of the written objections of the OP-2. Column no. 3 of the said consent form categorically records "I have been advised that major risks involved in the above procedures are haemorrhage, infection, bowel and vascular injury". The said consent form is duly signed by the patient Anita Prasad after discussions and it is therefore unlikely that the patient or her husband were not informed about the complications of the surgery to be performed. The consent is clear and the anticipated complications have also been categorically stated. We therefore do not find any substance in the argument of the learned counsel for the complainants on this count as well.
37. Learned counsel for the complainants however urged that the enquiry set up by the Government through the Directorate of Medical Education, Government of West Bengal was followed by a report dated 06.01.2011 and a copy thereof has been filed along with the rejoinder. Learned counsel has relied on the same and also on an article downloaded from the internet to explain the symptom of a bowel injury resulting in peritonitis. We have perused the same and the said expert opinion dated 06.01.2011 is a unilateral opinion at the stage when a criminal complaint had been lodged and the same led to a preliminary enquiry without the participation of the doctors on the basis of the material supplied by the complainants. Mr. George has read out the discussions which records that the infection was an outcome of the increased risk and the surgery was conducted without anticipating the complications. The injury in the bowel was found to be a negligence on the ground that it was not detected during the time of operation or even before the closure of the peritoneal cavity. The report doubted the theatre report of the surgeon and the Assistant concern commenting that this type of surgery was not expected and a single mistake of this sort could have resulted in fatality. The doubt was expressed about the attentive nature of the attending Surgeon. The conclusion drawn after the discussion is extracted hereinunder:
Conclusion:
The Enquiry Commission members have gone through all documents thoroughly, From the brief history and treatment protocol some deficiencies are detected. In a case of planned operation time taken here was more than a standard time. Injury to the gut is not a common complication during such type of elected operation. Diagnosis of the infection of the peritoneal cavity and suspicion of any injury during post operative period were also delayed. A doctor having specialized degree in this field of discipline may require skill and care to do a operation and manage subsequent complication. No doubt it appears to be a case of negligence on the part of the surgical team during operation and even in post operative period and it should be assessed on the basis of their past and present surgical performances. Neither the operation was a complicated one and nor an uncommon one and even there was no pre-operative co morbidity. So the Committee members are in their opinion that a deficiency was there and the doctors may be charged with professional negligence particularly in a case of such type of so-called super specialty hospital.
38. Learned counsel for the OP-2 has urged that this was a typical medical report at the stage of initiating a criminal complaint which did not achieve any results, and was a totally unilateral opinion without the participation of the OPs or their version. Learned counsel therefore urged that when the matter was reported to the West Bengal Medical Council by the complainants, the said complaint was dismissed and the appeal filed against the same before the Medical Council of India also met the same fate even after remand by the High Court. The order of the High Court and the order of the Medical Council of India dated 16.03.2020 has been extracted hereinabove.
39. Having considered the said submissions, we find that on the legal plain, the Apex Court in the case of Harnek Singh & Ors. Vs. Gurmit Singh & Ors., (2022) 7 SCC 685 has observed that the opinion and the finding of the Medical Council of India regarding a professional conduct of a doctor has great relevance. A reference to this judgment has also been made by the OP- 2 in paragraph 18 of the written argument quoted above. On the anvil of the aforesaid ratio, it would be appropriate to refer to the order of the Medical Council of India dated 16.03.2020 quoted hereinabove. The point-wise analysis made by the Committee from paragraphs 1 to 19 discusses the stepwise treatment of the patient and then while drawing conclusions has held that no negligence can be attributed on the part of the treating doctor namely OP-2.
40. We may point out once again that a copy of the said order has been produced by the learned counsel for the complainants as it was at the instance of the complainants that the matter had been relooked into by the Medical Council of India. The report can even otherwise be appreciated by us as it is an outcome of a judicial proceeding consequent upon the judgement of the High Court of Delhi and the Commission can in the exercise of its power require the discovery and production of any document or any other material as evidence as per Section 38(9) of the Consumer Protection Act, 2019 which is pari materia with the provisions of Section 13(4) of the Consumer Protection Act, 1986. This inquisitorial jurisdiction therefore obliges the Commission to look into the documents which are relevant for a controversy and have a bearing on the outcome. This is a medical negligence case, and therefore the decision of the Medical Council, which is based on a complete assessment of the entire material and after giving an opportunity to the complainants as well as the doctors, is in the shape of an expert opinion that has relevance in the light of the Apex Court decision in the case of Harnek Singh (supra). We have therefore no reason to disbelieve the same more so when the said decision is of 2020 and had been obtained by the complainants on 23.04.2024. The said decision of the Medical Council of India is neither under challenge nor has its findings been questioned before any appropriate forum. In the given circumstances, the said decision cannot be ignored and relying on the same, it can be safely said the OP-2 is not guilty of any negligence. All the symptoms that were noted on the 1st, 2nd and 3rd of July, 2010 in the sheets were very much before the Medical Council of India, the Committee whereof consists of experts in the field, who after the judgment of the High Court of Delhi have deliberated upon it in detail and provided their recommendations. Consequently, the said conclusions are accepted by us as relevant to the controversy to hold that the OP-2 is not negligent.
41. Apart from this, the complications after 03.07.2010 have been met at every level and the best possible treatment was tendered to the patient. The dispute might have begun or sparked off at the time of the clearance of bills etc. which ended up in the dishonouring of the post-dated cheques given by the complainants.
42. In the said circumstances in which the complainants have lost their loved one, we find it necessary to observe that even though we have not found any error of judgment or any act of such gross negligence, so as to indict the OP-2, yet we find that on human considerations, the hospital shall not press for realisation for any payments or set into motion any recovery or any criminal proceedings that have been undertaken for realisation of any such bills. The complainants have been deprived of the company of the deceased which calls for a moment of sympathy and not persecution. We hope and expect that the hospital will act magnanimously.
43. With the aforesaid discussions, since we do not find the allegations of medical negligence to be established against the OPs, the complaint is accordingly dismissed.
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