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ASSAM STATE CONSUMER DISPUTES REDRESSAL COMMISSION, GUWAHATI
DILIP KUMAR MAHANTA, MS. RENU PRAVA, MEMBERS
Akhil Chandra Paul (Dr.), Arunabha Datta (Dr.) - Appellants
Versus
Anjana Mitra Mazumdar - Respondent
First Appeal Nos. 35 of 2011 & 04 of 2012
Decided on : 28-02-2019
For the Appellants :Mr. A. Dhar, Advocate.
For the Respondent:Mr. S. Choudhury and Mr. Noorjaman Ahmed, Advocates.
The main legal point established is the requirement for expert medical evidence to prove medical negligence and the onus of proof lying on the complainant in establishing medical negligence.
Headnote:
Medical Negligence - Medical Malpractice - Consumer Protection Act, 1986 - Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(t), Section 2(1)(u), Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(t), Section 2(1)(u), Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(t), Section 2(1)(u), Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(t), Section 2(1)(u), Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(t), Section 2(1)(u) - The court discussed the medical negligence and medical malpractice under the Consumer Protection Act, 1986. It highlighted the importance of expert medical evidence in proving medical negligence and the onus of proof lying on the complainant. The court emphasized the need for conclusive medical evidence to establish the cause of post-operative complications and the inadequacy of hearsay evidence in proving medical negligence.
Fact of the Case:
The complainant alleged medical negligence and claimed compensation for the death of her husband following an appendectomy. The District Forum awarded compensation, holding the doctors liable for post-operative complications. The appellants challenged the order.
Finding of the Court:
The court found that the complainant failed to provide expert medical evidence to establish medical negligence. It dismissed the complaint and set aside the order of the District Forum.
Issues: The issues revolved around the alleged medical negligence in the appendectomy procedure, the adequacy of medical evidence, and the onus of proof in establishing medical negligence.
Ratio Decidendi: The court emphasized the need for expert medical evidence to prove medical negligence and highlighted the onus of proof lying on the complainant. It also underscored the inadequacy of hearsay evidence in establishing medical negligence.
Final Decision: The court allowed the appeals, set aside the order of the District Forum, and dismissed the complaint. No costs were awarded to either party.
ORDER :
Mr. Dilip Kumar Mahanta, Member-Both these appeals are directed against the order dated 17.6.2011 passed by the District Consumer Disputes Redressal Forum, Cachar, Silchar, in respect of C.P. Case No. 36 of 2008, filed by respondent Smt. Anjana Mitra Mazumdar and as such, the two appeals have been clubbed together and are disposed of by this common judgment.
2. Brief facts giving rise to these appeals are as follows : According to the version of the complaint petition, on 17.7.2006 night, complainant’s husband Debasish Mitra Mazumdar who had been suffering from fever with pain in the abdomen, was taken to the Red Cross Hospital, Park Road, Silchar. He was attended by appellant Dr. Arunabha Datta who prescribed medicines and suggested for Sonography test as well as some blood tests for further diagnosis. It is the allegation of the complainant that on 18.7.2006, after going through the reports of Sonography and other tests pertaining to the patient, Dr. Arunabha Datta, diagnosed the problem as “Acute Appendicitis” and recommended immediate removal of the appendix as it was on the verge of bursting. He also suggested the name of Dr. Akhil Chandra Paul for further consultation and surgery. Accordingly, complainant’s husband was admitted in the Ellora Nursing Home at Silchar, on 18.7.2006, and on the same date, Dr. Akhil Chandra Paul conducted the operation for removal of the patient’s appendix.
3. It is the version of the complainant that after completion of the operation, at about 2-30 p.m., the surgeon, above named, left for other works though the patient was complaining about acute pain and on much request and persuasion, he examined the patient around 9 p.m. and assured the complainant that everything was alright. According to the complainant, after the operation, her husband was discharged from the said hospital on 22.7.2006, though he was not fully recovered.
4. The further accusation of the complainant is that thereafter, on 19.8.2006, once again, her husband had to be hospitalised in the Red Cross Hospital, Silchar, and blood transmission was done as his haemoglobin percentage was found to be on the lower side. According to the complainant, this deterioration of the health condition of her husband was purely due to infections arising out of the operation performed by Dr. Akhil Chandra Paul. On 25.8.2006, complainant’s husband was released from the Red Cross Hospital, Silchar, on the request of the complainant and his family members. Subsequently, 30.8.2006, complainant’s husband was admitted in the Apollo Hospital at Chennai. According to the contention of the complainant, doctors of the said hospital disclosed before them that the condition of the patient had arisen due to premature and negligent operation leading to internal infection. Complainant could not complete the treatment of her husband at Apollo Hospital at Chennai, due to alleged financial constraint, and had to take voluntary discharge. Ultimately, complainant’s husband expired on 13.9.2006.
5. Under the said circumstance, the respondent, as complainant, instituted C.P. Case No. 36 of 2008 claiming from the two appellant doctors Rs. 2,00,000 towards medical expenses of her husband plus Rs. 8,00,000 as compensation along with litigation cost.
6. The District Forum after hearing both the parties and on perusal of the evidence on record, directed both the appellants to pay to the respondent complainant total amount of Rs. 10,05,000 (Rs. 2,00,000 for medical expenses and Rs. 8,00,000 as compensation plus Rs. 5,000 towards litigation cost). It has further been ordered that the awarded amount will be required to be paid by appellants Dr. Akhil Chandra Paul and Dr. Arunabha Datta at the ratio of 70% and 30% within a period of two months from the date of judgment failing which, the entire amount shall carry interest @10% per annum from the date of judgment till realisation. The said order has now been challenged in the present appeals.
7. We have heard the learned C
