Smt. Sangita Paul, Member
This is a case filed by Smt. Rasmani Mondal, W/o. Rabindra Nath Mondal residing at Singh O Naiya Para, Dighirpar, Village – Kummar Sha (West), P. O. - Tangrakhali, P.S. – Canning, District - 24 Parganas (South), Pin – 743 329 against New Lokenath Seva Sadan, Dr. Abhijit Basak, Dr. Arnab Sarkar and The Oriental Insurance Co. Ltd. with a prayer to direct the OPs 1, 2 and 3 to pay a sum of Rs.15,00,000/- jointly or severally as compensation for causing mental agony and suffering to the complainant, due to medical negligence, to pay a sum of Rs.25,000/- as litigation cost, to appoint medical expert, to call for the medical records lying in the custody of OPs 1 and 2, concerning the complainant’s treatment.
OP No.1 is New Lokenath Seva Sadan. The address is Fultala 3 No. Gate, Piyali Town, Baruipur, 24 Parganas (South), Pin – 743 387.
OP No.2 is Dr. Abhijit Basak. He has a chamber at Life Care Doctor’s Clinic. The address is Canning Bazar, Canning Town, 24 Parganas (South), Pin – 743 329.
OP No.3 is Dr. Arnab Sarkar, an employee of New Lokenath Seva Sadan, Fultala 3 No. Gate, Piyali Town, Baruipur, 24 Parganas (South), Pin – 743 387.
OP No.4 is Oriental Insurance Company Ltd. The address is The Oriental Insurance Co. Ltd. Divisional Office – 3, 4E/14, Azad Bhawan, Jhandalwal Ext., New Delhi-110 055.
The complainant, by filing this case, states that the complainant experienced burning sensation during urination with vaginal discharge as a consequence whereof the complainant took an appointment with Dr. Abhijit Basak. The OP No.2 herein, on 23.05.2017 and was under her treatment for a couple of months.
The OP No.2 advised the complainant to get herself admitted on 11.07.2017 at New Lokenath Seva Sadan for TAH+BSO total abdominal Hysterectomy – bilateral salphingo oopherectomy to be conducted on 12.07.2017 at 8.30 a.m. The complainant was admitted on 11.07.2017. OPs 2 and 3 conducted the said operation on 12.07.2017. The complainant was assured that her pain would be fully cured. After operation, the complainant felt acute pain in abdomen with difficulty in holding the urine, liquid discharge from the vagina was a regular affair. OP No.2 told the complainant that she had to leave the hospital with these complications.
The complainant contacted with Dr. Prabir Basu. Medical tests confirmed that she had injury to surrounding vital organs post TAH+BSO operation. OPs 2 and 3 made wrong diagnosis.
The cause of action arose on 23.05.2017, 02.06.2017, 16.06.2017, 23.06.2017, 07.07.2017, 11.07.2017 and it is still continuing.
Hence, the complainant prays for directing the OPs 1, 2 and 3 to pay a sum of Rs.15,00,000/- jointly or severally as compensation and for causing mental agony to the complainant, due to medical negligence, to pay Rs.25,000/- as litigation cost and to call for medical reports lying in the custody of OPs 1 and 2.
In the written version, OP No.1 states that this complaint is not maintainable in its present form, the complaint is barred by the Principle of estoppels, Waiver and acquiescence. The complainant was admitted on 11.07.2017 at Lokenath Seva Sadan (OP No.1) for TAH+BSO hysterectomy-bilateral Salphingo Operation was held on 12.07.2017. OPs 2 and 3 operated the patient. The complainant was discharged on 15.07.2017, as per the instructions of the OPs 2 and 3. The complainant was advised to take rest for 6 weeks. The complainant did not attend O.P. No.2 on 21.07.2017, 06.08.2017 and 14.08.2017 for the check up. There was no negligence on the part of OP No.1.
OP No.2 states that the complaint was filed for harassing OP No.2. Complainant wanted to extort money illegally from OP No.2. The complainant has miserably failed to explain the cause of action against OP No.2. Hence, the complainant is liable to be dismissed. The TAH and BSO operation was done with utmost care. The patient also visited another urologist of National Medical College and Hospital for further treatment. Complication of the patient is not due to the negligence of the OP No.2.
The OP No.3 in his written version states that the allegations are vague, baseless and arbitrary and should not be granted. Spinal anesthesia was given taking all specific precaution. The patient was in good condition. To OP No.3 is in no way liable for mental agony and harassment suffered by the complainant.
The instant case was filed on 27.02.2018. The case was admitted on 13.03.2018. On 04.05.2018 the complainant filed W/V. OP No.2 filed a petition registered as Ma/63/2018. On 28.05.2018 OP No.3 files W/V. Complainant also files a petition calling for medical reports of Rashmani Mondal. On 28.06.2018, after hearing of the MA petition, 63/18, the said petition is allowed on contest and the complainant is directed to implead the insurance company as OP, accordingly for covering professional indemnity of the Doctor. On 07.08.2018, the complainant appeared and filed MA/100/2018 for filing amended plaint. The petition of complaint is hereby allowed. On 01.11.2018, OP No.4 did not file W/V. So, the case proceeded ex-parte against OP No.4 on 30.11.2018. On 11.12.2018, the complainant filed evidence on affidavit. On 19.06.2019, the complainant files BNA. On 30.07.2019, the SSKM Hospital received the report. On 19.11.2019, the report from SSKM Hospital has been received by Ld. D.C.D.R.C. On 07.01.2022, the complainant files BNA. Argument of the complainant was heard on 16.11.2022. On 23.12.2022 argument of OP No.2 was heard in full. Accordingly, we proceeded for giving judgement.
Points for consideration :-
- Is the complainant, a consumer?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons :-
Point No.1:-
On perusal of documents and records, it appears that the complainant was admitted to New Lokenath Seva Sadan on 11.07.2017 for TAH+BSO. The Operation was conducted on 12.07.2017 at 8:30 a.m. The complainant paid an amount of Rs.17,000/- for her admission and operation. Besides she spends a considerable amount for tests and doctor’s visit. It appears that she is a consumer u/s 2(7) of the Consumer Protection Act, 2019.
So the 1st point is decided in favour of the complainant.
Point No.2:-
The complainant got admitted to New Lokenath Seva Sadan for TAH and BSO on 11.07.2017. She had developed complications during Urination, she experienced a burning sensation. Besides she had other difficulties. The complainant visited Dr. Abhijit Basak on 23.05.207 on 23.05.2017. According to the advice of Dr. Abhijit Basak the complainant was operated by Dr. Basak on 12.07.2017 for TAH+BSO, total abdominal hysterectomy-bilateral Salphingo OOpherectomy. The complainant was discharged on 15.07.2017. In the discharge certificate, the complainant was given certain advice for her speedy recovery. The complainant also visited other hospitals such as Ispat Co-operative Hospital. The complainant was told to contact on 18.10.2017. On that day the complainant was not brought. She faced certain problems. The problems were severe, it was not possible for her to move. She followed the advice of the doctor carefully. She had vaginal discharge. She also experienced acute pain. The complainant hoped for a complete recovery, but she could not recover completely. Had the Doctors been more careful, these problems would not have occurred. As per expert’s report, obtained from SSKM Hospital, there is no negligence on the part of the doctor but it was stated that pre-operative findings may help to justify the exact reason of operative procedure. VVF is a known complication of surgical procedure i.e. hysterectomy. Note sheets were not provided by the doctor. Still the complainant is not free from all the complications. She cannot move freely. As per opinion of Dr. Prabir Basu (Ispat Co-operative Hospital), she had some injury in the vital organ and the diagnosis confirmed the report. It is due to the deficiency in service and unfair trade practice adopted by the OPs, the complainant faced problems.
Hence, the 2nd point is decided in favour of the complainant and against the OPs.
Point No:3:-
The complainant faced problems at the post operative period. She was not keeping well. So, she lodged the case on 27.02.2018. In the post operative period she had vaginal discharge. Viginal discharge was caused by genital infection. But these systems were not treated by TAH+BSO. In the discharge certificate, it is mentioned that the operation is done for other reasons including DUB. VVF had developed as a complication of the operative procedure. It is an inherent complication of hysterectomy. On the whole, it appears from available records, expert opinion and other papers that the complainant is not free from all complications. The complainant went to the nursing home. The surgeon, prescribed operation and operation was conducted by OP No.2 & OP No.3 gave anaesthetia. The complainant stayed at the nursing home for three days. She did not face any post operative problem as per OP No.2’s version. In the meantime, the complainant developed some problems. But she was not entertained by Op No.2. After operation she faced several complications. She went to Ispat Co-operative Hospital on 27.08.2017. Dr. Prabir Basu checked her. She contacted for several times with Dr. Prabir Basu. Her problem was not solved fully. That is why she had to contact with other Doctors. The complainant spent time in mental agony, physical and mental pain. So, she is entitled to get relief as prayed for.
The 3rd point is decided in favour of the complainant and against the OPs.
In the result, the complaint succeeds.
Hence, it is,
-
That the complaint case be and the same is allowed on contest against the OPs 1, 2, & 3 and ex-parte against OP No.4 with cost of Rs.25,000/- (Rupees Twenty Five Thousand).
That the OPs 1, 2, 3 & 4 jointly and/or severally are directed to pay compensation to the tune of Rs.1,00,000/-(Rupees One Lakh) with simple interest @10% p.a. w.e.f. 11.07.2017 till realization within 45 days from the date of this order.
That the litigation cost of Rs.25,000/- (Rupees Twenty Five Thousand) is to be paid by the OPs 1, 2, 3 & 4 jointly or severally within 45 days from the date of this order.
That the OPs 1 & 2 jointly and/or severally are directed to give the medical records lying in the custody of OPs 1 & 2 concerning the complainant’s treatment to the complainant within 45 days from the date of this order.
That the complainant is at liberty to put the order into execution if the orders are not complied with within 45 days from the date of this order. .
Let a copy of the order be supplied to the parties concerned free of cost.
That the final order will be available in the website namely www.confonet.nic.in.
Dictated and corrected by me.
Sangita Paul
Member
