DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
RBT CASE NO. 140 OF 2016
DATE OF FILING: __________ DATE OF JUDGEMENT: 26/08/2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : 1. Smt. Nilima Guha, wife of late Pijush Kanti Guha
2. Smt. Rinku Ghosh, wife of Sri Krishnendu Ghosh
3. Smt. Tinku Sarkar, wife of Rathindra Chandra Sarkar
All residing at at Sukhchar Raja Road, 2, Sunhash Nagar, P.S Khardah, Dist. North 24-Parganas, Pin-700 115.
All represented by Constituted Attorney
Sri Subrata Datta, son of late Sashi Mohan Datta of Flat no. B-11/2, Abhyuday Cooperative Housing Society Ltd. E.K.T.P (Phase-IV) , P.O East Kolkata Township, Kolkata-107.
O.P/O.Ps : 1. Desun Hospital & Heart Institute, Desun More, E.M Bypass, Kasba Golpark, Kolkata-107.
2. Dr. Abhijit Bhatta, C/o Desun Hospital & Heart Institute, Desun More, E.M Bypass, Kasba Golpark, Kolkata-107.
3. Dr. Anirban Karmakar, C/o Desun Hospital & Heart Institute, Desun More, E.M Bypass, Kasba Golpark, Kolkata-107.
4. Dr. Tuhin Pal Chowdhury, C/o Desun Hospital & Heart Institute, Desun More, E.M Bypass, Kasba Golpark, Kolkata-107.
5. Dr. Debashis Chakraborty, C/o Desun Hospital & Heart Institute, Desun More, E.M Bypass, Kasba Golpark, Kolkata-107.
6. Dr. Krishnendu Das, C/o Desun Hospital & Heart Institute, Desun More, E.M Bypass, Kasba Golpark, Kolkata-107.
Proforma O.Ps : 7. The Deputy Director of Medical Education, Govt. of West Bengal, Directorate of Medical Eudcation, Swasthya Bhawan, GN-29, Sector-V, Salt Lake, Kolkata-91.
8. The Registrar, West Bengal Medical Council, 8, Lyons Range, 3rd Floor, Kolkata-700 001.
9. The Medical Superintendent-cum-Principal, SSKM Hospital, 22A, A.J.C Bose Road, Kolkata-20, P.S Bhawanipur.
10. The Commissioner of Income Tax-XX, 54/1, Rafi Ahmed Kidwai Road, Kolkata-16, P.S Park Street.
___________________________________________________________________
JUDGMENT
Sri Ananta Kumar Kapri, President
This case was first filed before the CDF, Unit-I and it was numbered as beng C.C 367 of 2014 before the said Forum. Thereafter, the case has been transferred to this Forum for disposal by Hon’ble State Commission by its order passed in R.P no. 98 of 2015 and having received the case record by this Forum, it has been renumbered as RBT no.140 of 2016.
Alleging unfair trade practice against the O.P-1, Hospital i.e Desun Hospital & Heart Institute and its Doctors, the complainants have filed the instant case under section 12, C.P Act, 1986, praying for compensation against the O.Ps.
The epitome of facts leading to the filing of the instant case runs as follows.
The complainant nos. 1,2 and 3 are represented by one Subrata Datta ,the Power of Attorney Holder . They have been substituted as legal representatives of the original complainant namely Pijush Guha who died during the pendency of this case.
On 16.2.2013, the original complainant , since deceased, suddenly fell ill at 3.15 a.m. He was taken to O.P-1 hospital that day and was admitted to that hospital at about 3.15 a.m. O.P-2 diagnosed the case of the complainant as being one of “Tripple Vessel Disorder”( T.V.D) . He was admitted to the hospital and was also discharged that day at about 12.50 a.m. He had to pay Rs.52,982/- in all for his brief stay in O.P-1 hospital. Now, he has come up before this Forum ,filing the instant case, alleging that the said hospital has drawn excessive bill in order to squeeze money from him. The original complainant prayed for compensation of Rs.18 lacs for unfair trade practice, deficiency in service, mental agony and harassment. Hence, this case.
O.P-5 has filed written version to contest the case herein. According to him, he is an M.D in Pathology attached to SSKM Hospital as Assistance Professor at the relevant point of time. He is entitled to private practice outside the hospital as he has not been drawing non-practicing allowance. On 16.2.2013 i.e on the date of admission of the patient, he was on leave and signed the pathological reports only in hospital in the morning. There is no deficiency in service caused by him and, therefore, the case should be dismissed in limini .
The O.P-2 is the attending doctor of the original complainant. He has filed written version, wherein it is contended inter alia that the case is not maintainable as it is not filed by the original complainant or by the legal representatives of the deceased complainant. The positive case as made out in the written version is that the deceased complainant was admitted to the hospital on 16.2.2013 , having suffered from T.V.D. He was admitted to the hospital and he was thereafter shifted to ITU for better monitoring and care. At 3.30 a.m A.B.G Gas analysis was done and the report of said analysis suggested that the patient was in Cardiogenic shock with severe metabolic acidosis. So, at about 3.40 a.m ,the patient was put to ventilator support. He also advised to administer medicines like Inotropes, Heparin, Antiplatelates, Statin, Sodium Bicarbonate, Antibiotics etc. At about 9.32 a.m that day, second ABG test was done and the test report showed improved condition of the patient. At about 10.a.m, the patient was discharged from the hospital on the request of the patient party. There is no deficiency in service, nor any kind of misconduct on his part and, therefore, the case should be dismissed in limini with cost.
Written versions are also filed by other O.Ps including O.P-1 hospital and the contents of those written versions are almost the same as O.P-2’s.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable in law ?
- Has the O.P-1 hospital indulged in unfair trade practice as alleged by the complainants?
- Are the complainants entitled to get relief or reliefs, if any, as prayed for?
EVIDENCE OF THE PARTIES
Parties have led evidence on affidavit and these are kept in the record. Questionnaires, replies and BNAs filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 :
It is contended by O.P nos.1 and 4 that the petition of complaint is filed by one Subrata Datta who is stated to be the Power of Attorney Holder of the original complainant, since deceased. According to him, a complaint cannot be filed by a representative of the complainant. It is further contended by him that the power of attorney expired as soon as the original complainant died and there has been no fresh power of attorney granted to Subrata Datta by the legal representatives of the deceased complainant. So, the power of attorney holder i.e Subrata Datta had no locus standi to file the instant case and, therefore, the instant case is not maintainable in law, so goes the submission of Ld. Lawyer, appearing for the O.Ps. It is further submitted by the said Ld. Lawyer that right to sue does not survive to the legal representatives of the deceased complainant on his death and as the right to sue does not survive, the legal representatives of the deceased complainant are not entitled to continue the case and that the case should, therefore, be dismissed. In support of his contention he has relied upon a decision of the National Commission reported in 2012 (3) CPR 321 (NC) (Prof. Baleshwar Singh (deceased) Through Legal Representatives –Vs- Dr. Monoj Sharma & Ors), wherein it is observed that if negligence has resulted in injury of personal nature, suit or appeal will abate on the death of the complainant and the legal representatives of deceased complainant will not be entitled to carry forward the complaint after his death.
Ld. Lawyer appearing for the complainant has contended that the right to sue survives to the legal representatives of the deceased complainant and ,therefore, the legal representatives are very much entitled to carry forward the complaint to its destiny.
Considered the submissions made on behalf of the parties and as referred to above. Perused the materials on record. Considered all these.
We proceed to see at first whether the power of attorney holder i.e Subrata Datta is entitled to file a complaint on behalf of the original complainant. To find an answer to this question, we have to take into consideration the Regulation 16(7) of Consumer Protection Regulations, 2005 which reads as follows-
“While Consumer Forum may permit an authorized agent to appear before it , but authorized agent shall not be one who has used this as a profession”.
So, from the aforesaid provisions of law, it is crystal clear that an authorized agent is entitled to file a complaint on behalf of the complainant , but the said authorized agent must not be a professional man. In the instant case, one Subrata Datta filed the complaint on behalf of the original complainant by virtue of a power of attorney executed by the original complainant. A copy of such power of attorney is kept on record and it goes unchallenged. This Subrata Datta is not a professional man and he is the son-in-law of the deceased complainant as is available from the medical papers filed on record on behalf of the O.P Hospital. So, in the circumstances, we cannot say that Subrata Datta is a professional authorized agent. This being so, he is entitled to file complaint on behalf of the original complainant. It has been argued on behalf of the O.Ps that the original complainant did not sign the complaint. When a complaint is filed by an authorized agent, the original complainant need not sign the petition of complaint and in that case, the authorized agent will sign the petition of complaint on behalf of the original complainant. The legal representatives of the original complainant have also filed a copy of power of attorney on record and regards being had to all these, we feel not a least hesitation to say that the power of attorney holder is quite entitled to continue this case on behalf of the legal representatives of the deceased complainant.
Further, it is to be seen now, whether the legal representatives of the deceased complainant are entitled to carry forward this case after the death of the deceased complainant. It is observed in the Ruling (Supra) that if the negligence resulted in injury of personal nature and, therefore, legal representatives of the deceased complainant were not entitled to carry forward the complainants after the death of the deceased complainant.
Coming to the facts of the instant case, it is found that the allegation of the complainant in the instant case is not of medical negligence; the allegation herein is that the O.P hospital has squeezed excessive money from the deceased complainant. The allegation is relating to unfair trade practice ,not to any kind of personal injury, resulting from medical negligence. In view of this, the above ruling appears to be not applicable to the facts and circumstances of the case and regards being had to this aspect of the matter, we do say that the legal representatives of the deceased complainant have every right to carry forward this complaint after the death of the original complainant. The case is quite maintainable in law.
Hence, the above point is answered in favour of the complainant.
Point no.2 & 3 :
Ld. Lawyer appearing for the complainants has contended that the allegation of the complainant is only against O.P-1 hospital. According to him, the allegation relates to unlawful trade practice of O.P-1. So, in the context of the submission made on behalf of the complainants, we confine our discussion only to the question whether the O.P-1 hospital has adopted any unfair trade practice or not. Ld. Lawyer appearing for the complainant has invited our notices to various kinds of anomalies surfacing in the treatment sheets and documents filed on behalf of the O.P-1 hospital and we are proceeding to deal with those anomalies one by one as follows.
First of all, we proceed to discuss about three pathological reports placed on record by the O.P-1 hospital. On perusal of these three pathological reports, it is found that the sample was drawn at 00.00 hours on 16.2.2013. Sample of blood cannot be drawn at 00.00 hours. It is the case of the complainants that original complainant was admitted to O.P-1 hospital on 16.2.2013 at 3.15 a.m. So, question of drawing blood sample at 00.00 hours does never arise. That apart, a copy of admission form has also been placed on record by O.P-1 hospital vide page 6 to evidence of O.P-1. This document reveals that the patient was admitted at 4.12 a.m on 16.2.2013. None of the times mentioned in admission form and also in pathological reports ,regarding admission of the original complainants and drawing of blood sample because the patient was admitted to the hospital at 3.15 a.m. The entry regarding drawing of blood sample on three pathological reports are unreliable and false and all these go to indicate an attempt at cobbling up the records on the part of the hospital .
It has been submitted on behalf of the complainants that a huge charge has been recovered from the complainants for ventilator support to the original complainant. According to the submission of the complainants, the patient was never put on ventilator and such charge has been falsely recovered from them by showing false entry in the bill of the hospital. In treatment sheet written at 8.35 a.m by O.P-2, Doctor, it is stated that the patient was on ventilation support . But the case of O.P hospital is that patient was put on ventilation support from the time of his admission. There is no recording in the treatment sheet of the patient that he was put on ventilation at 3.40 a.m i.e immediately after admission of the patient to the hospital. Rather, it is mentioned in treatment sheet as such, “Admit under Dr. A Bhattacharya in ICCU” vide emergency OPD prescription dated 16.2.2013 at 3.05 a.m and also at page 26 of evidence of O.P-1. It is contended on behalf of the Ld. Lawyer ,appearing for the O.P-1 hospital that there is such notting against item no.9 of treatment sheet signed at 3.30 a.m being annexure page 29 to the evidence of O.P-1 hospital. On perusal of the said annexure ( page 29) it is found that serial numbers have been corrected by over-writing. Serial no.6 is over-written as serial no.11 and serial no.5 over-written as 10. There is no explanation furnished by the O.P-1 as to why serial nos.5 & 6 have been overwritten . In absence of such explanation, we feel constrained to hold that someone has made manipulation in the said documents in order to fill up the lacuna left therein. Regards being had to this aspect, it appears that this document , annexed at page 29 to the evidence of O.P-1 hospital, is not a reliable one and it does not prove that the patient was put on ventilation at about 3.30 a.m on 16.2.2013. That the patient was not put on ventilation at about 3.30 a.m that day is also established by the averment of O.P-1 hospital in the written version filed by it. The relevant averment of O.P-1 is quoted here for better clarification:-
“The answering O.P states that prior to the ventilation support as advised at 8.30 a.m on 16.2.2013, the patient was already put in mechanical ventilator immediately on shifting to ICU” ( vide page 7 of his written version). From the above averment of O.P-1 n, it becomes crystal clear that O.P-2 ,i.e the treating doctor advised about ventilator support of the patient at 8.30 a.m on 16.2.2013 and therefore, the question of the patient keeping on ventilator support prior to 8.30 a.m does not arise at all. O.P-2 has left no stone unturned to control the damage by submitting in his written version as well as evidence that by words “on ventilation” as written by him on treatment sheet of 8.35 a.m, he has wanted to mean that patient was already on ventilator. Such construction of O.P-2 appears to be not acceptable in view of above-quoted averment of O.P-1 . It stands now established that the hospital has failed to produce any cogent evidence to prove that patient was put on ventilator much after his admission. But charge for sucfh support is realized.
That apart, it is undisputed fact that the patient was discharged from O.P-1 hospital at 12 p.m on 16.2.2013 and he was taken to R.G Kar Medical College and Hospital that day without ventilator support. He was admitted to R.G Kar Medical College and Hospital at 5.25 p.m on 6.2.2013 and by this Forum no ventilator support was given to the patient. Considering all these facts and circumstances of the case, it appears to us that the averment of O.P-2 regarding giving ventilation support to the patient is self contradictory. It has been self contradictory for the reason that an attempt has been made to suppress the truth. The patient was not at all put on ventilation. Patient was not at all in any requirement of any ventilation support. Had he been any requirement of any ventilation support, he could not have survived without such support after his release from O.P-1 hospital at 12.50 p.m till his admission at 5.25 p.m to R.G Kar Medical College and Hospital. Regards being had to all these, we do say again that the patient was not in need of any ventilation support and no ventilation support was given to the patient by O.P-1 hospital. But it has been shown in the medical bill that such support was given to the patient and the O.P-1 hospital has also realized the cost from the complainant for such ventilation support. This is nothing but mal-practice on the part of the O.P-1 hospital and it stands proved on the face of the record placed before the Forum. Episode of ventilation is nothing but a myth.
O.P-1 hospital has realized Rs.900/- as visiting fee for Dr. Anirban Karmakar. O.P-2 was the attending doctor of the patient. There is no record whatsoever to prove that O.P-2 referred the case to Dr. Anirban Karmakar. If a case is not referred to any other doctor by the attending doctor, the former cannot look into that patient. The version of the O.P-1 is that Dr. Anirban Karmakar was the Incharge of ICCU and ,therefore, he is entitled to get a fee and, therefore, the fee has been recovered from the patient. No document whatsoever is submitted by the O.P-1 hospital to establish that Dr.Anirban Karmakr was Incharge of ICCU that day. No record whatsoever has been produced by the O.P-1 hospital to establish that Dr. Anirban Karmaker made visit to ICCU to monitor the condition of the patient when he was in ICCU. Monitoring of a patient over phone from his residence does not entitle him to any fees; he becomes entitled to fee only when he pays a visit to the ICCU. In absence of any documentary evidence to the effect that Dr. Anirmab Karmakar made visit to ICCU that time, we do hold that he is not entitled to any visiting fees. O.P-1 has realized the visiting fee of Rs.900/- for the payment to Dr. Anirban Karmakar and the same has been mentioned in the medical bill issued by the O.P-1. This is another instance of whimsical constr5uction of medical bill, vide bill no.0010171 dated 16.2.2013 and as such an unfair trade practice too.
In this case, 15 numbers of investigations have been done on the patient and the total cost of all these investigations is Rs.15,785/- vide final bill details , page 16 of petition of complaint. Nothing is spared to be investigated. There are some investigations made which appear to be not related to the problem the patient was suffering. The patient was suffering from breathlessness; he was gasping at the time of admission, as goes the version of O.P-1. On perusal of the reports, it is found that the creatinin,Creatinine Kinase-CK/CPK, Creatinine Kinase-MB/CPK-MB, sodium, potassium etc. have also been ascertained during investigation. The patient had no complaint of urinary trouble; he had no complaint of dropsical condition. Yet, the O.P-1 hospital made the patient to expend a lot of money towards the test of creatinin, potassium, sodium, hepatitis B etc. What we want to mean is that some unnecessary tests have been done during investigation by the O.P-1 hospital and we feel no hesitation to say that these tests were done by the hospital only to squeeze money from the patient party.
There have been enumerable medicines and equipments supplied by the hospital for treatment of the patient and it is discernible from page 20,21 and 22 of the evidence of the O.P-1 hospital. Receipts for supply of those medicines and equipments are not signed by the patient party or the patient. God knows what were supplied and what are not. A few medicines have been used for treatment of the patient and it is so available on record ,vide Regular Prescription page 45 and 46 to evidence of O.P-1. The following medicines are found to have been used for treatment of the patient: 1) Injection-Pan, 2) Tablet Ecosprin, 3) Tab- Clopitab, 4) Tab- Astor, 5) Tab-Heparin, 6) Injection –Tazar, 7) Cap- A to Z 8) Syp-Duphalac, 9) Cap-Rowel, 10) Tab- Alprax, 11) Tab- Nikoran.
The following medicines have also been used vide page 43 and page 45 of evidence of O.P-1: 1) Inj- Lasix, 2) Inj-Sodibicarb, 3) Inj-Norad, 4) Inj- Zofer.
But , what about the rest medicines and equipments. There is no explanation in this regard furnished by the O.P-1 hospital. O.P-1 hospital could have prepared a list of unused medicines and equipments and could have returned the same to the patient party at the time of discharge from the hospital. Had this thing been done by the hospital, the transparency of the hospital would have been above question. But , nothing has been done. In every Pharmacy Bill of the hospital, it is written ,”Goods once sold cannot be taken back”. This is true that if a goods is once sold, it cannot be taken back. If this be so, a question arises why the hospital has taken back the unused medicines and equipments which have been sold to the patient for his treatment. Is it for the purpose of re-selling them and thereby to make a fast buck ? Be that as it may, we feel nothing sort of scruple to say that there is lack of transparency in the activities of the hospital in so far as the supply of medicines and equipments to the patients are concerned. If unused goods are not returned to the patient party by the hospital, it is nothing but corrupt practice on the part of the hospital and is also an unfair trade practice.
It has been submited on behalf of the complainant that an exorbitant prices have been recovered from the pateint for the purpose of investigation and to prove it , a chart regarding the cost of investigation issued by the Super Religare Laboratories (SRL Diagnostics) , India’s Largest Diagnostice Network, has been provided as follows:-
Clinical Investigation Cost of Desun Cost at SRLD Diagnostics
- LHD Rs.1055/- Rs.400/-
- MB/CPK-MB Rs.1350/- Rs.480/-
- CK/CPK Rs.1080/- Rs.350/-
- Potassium Rs.655/- Rs.375/-
- Sodium Rs.745/- Rs.375/-
- Creatinine Rs.565/- Rs.180/-
- Urea Rs.655/- Rs.190/-
- HbAIC Rs.1650/- Rs.575/-
- Viral Screening Rs.2500/- Rs.2280/-
-
- Prothrombin Rs.590/- Rs.275/-
- Blood Group & RH Type Rs.190/- Rs.125/-
- Complete Blood Count Rs.355/- Rs.325/-
The comparison of prices as shown in the table above establishes that excessive cost has been realized from the patient for the purpose of investigation. The above comparison list has not been controverted by the O.P-1 hospital. It has remained unchallenged. Regards being had to this aspect of evidence, we do say that the O.P-1 hospital has realized cost at exorbitant rate from the patient for investigation done in the hospital. This is sheer corrupt practice on the part of the O.P hospital and also an unfair trade practice as well.
Upon what have been discussed above, it appears that unfairness has entered into the soul of O.P-1 hospital . Vigorous attempts have been made on the part of the O.P-1 hospital at manipulation of its records. There is no consistency between some of the entries made in the hospital record and the reality. The manipulation in the record exposes the motive of the hospital. Its motive is not to serve the people of the country ,but to squeeze money from them. To exploit the innocent patients and to make a fast buck upon their money is the only object of O.P-1 hospital. A person is best known from his conduct. We should not grope here and there . A drop of poison makes the buckets of water contaminated . Nothing more should be discussed about the hospital to know its true nature ,character and motive . Graft prevalent in the private hospitals like O.P-1 has begrimed the public health in general.O.P-1 has indulged in unfair trade practice. This view of the Forum also gets support from the view of an expert committee of Govt. which was formed on the complaint of the power of attorney holder of the complainant. The report of the expert committee formed by Govt. order no.ME/ENG-25-13/M/1460/26.9.2013 from the Director of Medicval Ex-Officio Secretary, W.B is filed on record vide page 33 and 34 of the petition of complaint. Still, for better elucidation of our point of view , we like to reproduce the comments of the expert committee which reads as follows:-
“Comments: The comments are made only on the basis of the paper/records supplied:
1. In absence of clinical finding and appropriate diagnosis the investigations done within the eight hours of hospital stay are large in numbers and charges taken are exorbitantly high to the best of our knowledge and belief.
2. The cost of medicines and related equipments following the advice in the plan of care sheet/treatment sheet also appears to be high.
3. The DORB sheet states provisional diagnosis “TVD with cardiogenic shock on mechanical ventilator” signed by Dr. Krishnendu Das, M.O without mentioning time of DORB, but transportation of the patient in a ventilator free ambulance and attending OPD on same day at R.G Kar Medical College and Hospital and admission in cardiology department without any ventilator support and being discharged in a better state on 21.2.2013 appears to be confusing to us. The patient’s attendance at Cardiology OPD of R.G Kar Medical College & Hospital in a stable state (with respiration rate 25 per minute and BP 120/80 mm HG as recorded on OPD ticket) on the same day after approx 8 hours of admission in Desun Hospital can not be matched /corroborated with the diagnosis and treatment provided at the first hospital (Desun Hospital).
4. So far the Investigation report (The timing of the investigations reports, signature of Pathologist/Biochemist and availability of the appropriate doctor at the said time) appears to be true to the complaint.
5. The doctor’s visit fee of Rs.900/- for Dr. Anirban Karmakar cannot be corroborated without any referral to Dr. Karmakar by the bed in-charge/on duty doctor or any note on BHT by Dr. Karmakar”.
O.P-1 Hospital is found guilty of unfair trade practice and there is no charge of medical negligence brought against the O.P doctors. The case deserves to be dismissed against them. The complainants are entitled to compensation for harassment and mental agony caused to the original complainant due to unfair trade practice of O.P-1-hospital, and the order is passed accordingly as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P no.1 and dismissed on contest against the rest of the O.Ps.
The O.P-1 hospital will have to pay a litigation cost of Rs.10,000/- to the complainants. The said O.P-1 hospital is also directed to refund Rs.50,000/- to the complainant ( the amount which is taken by the hospital) and also to pay a sum of Rs.2,00,000/- ( two lac) as compensation for mental agony and harassment caused to the complainants by way of unfair trade practice , within a month of this order ,failing which the compensation amount, cost amount and the amount of litigation will bear interest @10% p.a till full realization thereof. The complainants are directed to pay Rs.50,000/- to Legal Aid Account of this Forum out of the compensation ,if realized.
Registrar-In-Charge of this Forum is directed to send a certified copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member
Dictated and corrected by me
President
