DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 122 OF 2018
DATE OF FILING:31.10./2018 DATE OF JUDGEMENT: 1.7.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : Minara Molla, daughter of Mahaddesin Molla, P.O & Village-Atharo Banki, P.S Jibantala, Pin-743329, South 24-Parganas.
O.P/O.Ps : 1. Mishwa Nursing Home & Polyclinic, Prop. Mosiur Rohoman (M. Rohoman) @ Dr. Mosiur Rohoman Sekh at Sonakhali Bazar, North to Masjid, P.S Basanti, Pin-743329, dist. South 24-Parganas.
2. Dr. Mosiur Rohoman (M. Rohoman) @ Dr. Mosiur Rohoman Sekh of Mishwa Nursing Home & Polyclinic at Sonakhali Bazar, North to Masjid, P.S Basanti, Pin-743329, dist. South 24-Parganas and residing at Vill. & P.O Burtoli, Sekh Para, Pathan Khali, P.S Gosaba, Dïst. South 24-Parganas.
3. Dr. Giasuddin Sekh, of of Mishwa Nursing Home & Polyclinic at Sonakhali Bazar, North to Masjid, P.S Basanti, Pin-743329, dist. South 24-Parganas and residing at Vill. & P.O Burtoli, Sekh Para, Pathan Khali, P.S Gosaba, Dïst. South 24-Parganas.
4. Dr. Ashoke Kumar Dey, R.M.O, of Mishwa Nursing Home & Polyclinic at Sonakhali Bazar, North to Masjid, P.S Basanti, Pin-743329, dist. South 24-Parganas.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Complainant, an unmarried girl, has approached the Forum with the filing of the instant case ,wherein it is alleged by her that she has fallen a prey to medical negligence on the part of the O.Ps.
Facts leading to the filing of the instant case by the complainant may be epitomized as follows.
The complainant had been suffering from abdominal pain and, therefore, she was treated by many doctors without any relief. Last of all, she approached the O.P-1 Nursing Home and there she was examined by the Dr. Mosiur Rahaman, O.P-2. O.P-2 advised her to get admission in O.P-1 Nursing Home for the reason that an operation was to be conducted on her for removal of her right ovarian cyst. So, on 15.9.2017 she was admitted to O.P-1 Nursing Home under care and advice of O.P-2 and her father also paid Rs.1000/- in advance to O.P-2 that very day. But O.p-2 did not issue any receipt for payment; he made an endorsement to that effect merely on the prescription. On the date of surgery i.e on 9.9.2017 O.P-2 was paid Rs.4000/- again. However, he i.e O.P-2 received Rs.20,000’/- from the complainant in different stages for the surgery. But no bill whatsoever has been granted by him to the complainant. Before the surgery, it was detected by USG report that the left ovary of the complainant was normal and right ovary was having a small cyst. Operation was conducted in O.P-1 Nursing Home by O.P nos.2,3 and 4. After the operation was over, specimen for histopathology was sent to the laboratory on 11.9.2017 by O.P-2. Report of hysto pathology report was quite startling. It revealed that the right ovary of the complainant was normal with a small cyst ; but the left ovary was not seen with fundus and fallopian tube. Complainant was discharged from the said Nursing Home without any discharge certificate and money receipt.
On 22.10.2017 USG of lower abdomen of the complainant was again done as per advice of O.P-2 from Satabdi Diagnostic Center at Canning Town , South 24-Parganas. This time also left ovary was not visible and right ovary showing hemorrhagic cyst inside. The complainant got no relief from her abdominal pain. She rushed from doctor to doctor and in course of her madness she visited Dr. Satarupa Sarkar, at Canning Town on 4.11.2017. There also an USG of lower abdomen was done under the instruction of Dr. Satarupa Sarkar and this USG report also shows that left ovary is not visualized. It is on the prescription of Dr. Satarupa Sarkar that O.P-2 who performed surgery along with other doctors upon the complainant, removed healthy left ovary including fundus and fallopian tube instead of removing small cyst of right ovary. But the condition of the complainant started deteriorating; it went from bad to worse . So, she visited Santinketan Nursing Home at Baruipur on 6.12.2017 where another USG of lower abdomen was taken by the doctors. This time also, left ovary is not seen and right ovary was found to be cystic and bulky.
The father of the complainant sent a letter to the O.P-2 requesting him to supply discharge certificate and the money receipts. But no reply was given either by the O.P-1 or O.P-2. The complainant being an unmarried girl, she has been rendered permanently incapable of giving any birth of children and, therefore, alleging medical negligence on the part of the O.Ps, she has filed the instant case praying for passing an order of compensation to the tune of Rs.18 lacs and also for Rs.1,50,000/- as medical and other expenses by her parents for treatment of post operative complications along with litigation cost. Hence, this case.
Notice of the case has been served upon the O.Ps. But the O.Ps have refused to accept the service of notice as goes the endorsement of postal peon on the returned envelop of notice kept in the record. The case, therefore, proceeds exparte against all of them.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Has the complainant been able to prove alleged medical negligence on the part of the O.Ps?
- Is the complainant entitled to get relief or reliefs,if any, as prayed for?
EVIDENCE OF THE PARTIES
The complainant has filed evidence on affidavit along with other documents and all these are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
In the instant case , in transpires in affidavit on evidence of the complainant that she suffered from abdominal pain and, therefore, she approached the O.p-1 Nursing Home where O.p-2 treated her and also conducted surgery upon her. According to her, O.P-2 and his associate doctors i.e O.P nos. 3 and 4 conducted surgery upon her on 9.9.2017 for removal of a small cyst on her right ovary. That there was a small cyst on her right ovary is established from USG report dated 11.1.2017 vide Annexure 1 to evidence of the complainant. Relevant portion of this USG report reads thus;
“ADNEXAE : Right ovary is normal and measures 36.3 x 19mm with a
cyst of 24.4 mm
Left ovary is normal and measures 26.6. x 17.5 mm.
No abnormal adnexal mass is seen. No free fluid is seen in
Abdomen”.
Next time USG of lower abdomen of the complainant was done on 22.10.2017 on the advice of O.P-2 vide Annexure 6a to the evidence of the complainant. This time the report goes thus,
“Ovaries: Left ovary is not visualized. Right ovary is normal in size, shape and echotexture. Rt. Ovary measures 30.8 mm x 18.0 mm. Right ovary showing hemorrhagic cyst inside”.
If comparison is made between the two USG reports i.e USG dated 11.1.2017 and USG report dated 22.10.2017, it becomes crystal clear that the left ovary of the complainant was normal before the operation which was conducted on 9.9.2017. But, the said left ovary was not found present in its place on 22.10.2017 i.e after the operation on 9.9.2017.
Let us proceed to further extent to be confirmed on whether left ovary was removed during surgery conducted on 9.9.2017 by the O.Ps. Here is another USG report dated 4.11.2017 and this report was done on the advice of Dr. Satarupa Sarkar. The USG report is marked as Annexure 7 filed by the complainant and this report goes thus,
“Both ovaries: Right ovary is bulky in size with closely adherent to the uterus-? Infective change. Right ovary measures 5.34cm x 2.74 cm. Left ovary could not be imaged. No adnexal mass is seen”.
Another USG report was also done by the complainant on 6.12.2017 at the instance of Dr. Debasish Naskar . This USG report is marked as Annexure 8 to the evidence of the complainant. This report goes thus,
“ Both ovaries and Tubes: Right ovary cystic (Bulky) Left ovary not seen( written in hand writing)”.
A photocopy of prescription of Dr. Debasish Naskar marked as Annexure 9 has also been filed on record by the complainant. From this prescription it is found, “No left ovary seen”.
All the above evidences as adduced by the complainant go unchallenged. The O.Ps have refused to accept the service of summons in this case and it is so mentioned as being “Refused” in the endorsement of the postal peon over the envelops kept in the record. In the circumstances, we find no reason whatsoever to disbelieve the evidence of the complainant and it stands established by the evidence of the complainant as discussed above that the O.Ps removed the left ovary of the complainant instead of removing the cyst on her right ovary. Series of USG reports have been placed on record by the complainant and these reports go to prove leaving no room for doubt that the O.Ps performed wrong operation upon the complainant. They removed the left ovary of the complainant and also fallopian tube of her. Left ovary of the complainant was quite normal. She approached the O.Ps for treatment of right ovary which was having a small cyst . But the O.Ps removed her left ovary which was a healthy one and thus they have made the complainant crippled for the purpose of reproduction throughout her life. They have caused irreparable loss to the complainant and such loss which has been caused to the complainant by the O.Ps is very difficult to be compensated in terms of money.
The O.Ps have ,however, conducted wrong treatment and wrong operation upon the complainant and thus they have caused medical negligence and their medical negligence and gross deficiency in service become crystal clear on the unchallenged facts and materials on record.
The O.P nos. 2,3 and 4 are doctors of O.P-1 Nursing Home. They are not at all doctors; they are quacks. Being quacks they have misguided and misled the innocent public. One photocopy of prescription marked as Annexure 1 to the petition of complaint is filed on record on behalf of the complainant. From this prescription it is found that O.P-2 has received Rs.1000/- from the complainant. More important is the fact that there is no date on the prescription. There is no signature of doctor on the said prescription. There is no registration number of doctor on the said prescription. Regards being had to all these, we feel no manner of hesitation to say that the O.P-2 and his Associate doctors are no more than quacks. They performed operation upon the complainant and, therefore, they performed wrong operation. They removed left ovary of the complainant instead of removal of cyst of the right ovary. All these facts also go to prove that O.P doctors are not competent person to render treatment to the complainant; they have no qualification to render treatment to the public. Without having proper qualification to render treatment to the public, rendering of treatment to the public or doing surgery upon any public is not only medical negligence ,but also deficiency in service on their part.
It is also the version of the complainant that no treatment paper nor any discharge certificate was issued to her by the O.Ps. The O.Ps have been conducting unfair trade practice . They have no medical degree and, therefore, they are not signing the prescription. O.P-2 has not signed the prescription; he has not mentioned his qualification on the prescription. O.P nos. 3 and 4 are accomplices of O.P-1. They all know very well about the unfair trade practice of them and, therefore, they have not issued discharge certificate to the complainant. They have not issued discharge certificate to the complainant for the reason that there is a great chance that their unlawful trade practice will be detected if discharge certificate is issued.
Be that as it may, all these activities of the O.Ps go to prove one thing and one thing only that they are doing unfair trade practice in order to hoodwink general public.
Last but not least in importance ,we come across one thing at the end of the photocopy of the prescription issued from the Nursing Home of O.P-1 vide Annexure 1 of petition of complaint. Here, it is stated that patients are treated and operated free of cost if they held a card of Rashtriya Swastha Bima Yojona (RSBY). This is a kind of advertisement to misguide the people; this is a misleading statement given by the O.P-1 through O.P-2. It is misleading in this sense that O.P-2 has no qualification to treat any person. All these evidences of the complainant have remained unrebuted and all these evidences go to prove unhesitatingly that the O.P Nursing Home and O.P-2 have been practicing unlawful trade practice by misguiding the public by way of mis-advertisement through their prescription.
Upon what have been discussed above, it stands established on the record by the complainant that the O.Ps rendered wrong treatment and surgery upon the complainant, as a result of which, the complainant has lost her left ovary and fallopian tube and has been benumbed throughout her life for reproduction in future. The complainant is, therefore, entitled to compensation from the O.Ps. That apart, it also stands established on record that the O.Ps have indulged in unfair trade practice to suck the blood of innocent people . The shenanigan perpetrated by them is not acceptable and they will have to pay heavily for evil practice. O.P-1 Nursing Home is held vicariously liable for the medical negligence on the part of the O.P nos. 2,3 and 4.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on exparte against the O.P nos.1, 2,3 and 4 with a cost of Rs.10,000/-.
The O.Ps who shall remain jointly and severally liable for payment to the complainant, are directed to pay a sum of Rs.15 lacs including medical expenses sustained by the complainant as compensation within a month of this order, failing which, the compensation amount will bear interest @10% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to send a 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
