DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _355A _ OF 2015
C.C. no. 228 of 2012 ( Earlier Registration Number)
DATE OF FILING : 3.8.2015 DATE OF JUDGEMENT:13.3.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Smt. Tania Bhattacharjee, daughter of Sri S.A Bhattacharjee of 2/2, Bediapara Lane, P.S Dum Dum, Kolkata- 77.
O.P/O.Ps : 1. The Director, Appollo Gleneagles Hospitals limited, 58, Canal Circular Road, Kolkata-54, P.S Phool Bagan.
2. Dr. Mahesh K. Goenka, Director & Chief of Institute of Gastroenterology, Appollo Gleneagles Hospitals limited, 58, Canal Circular Road, Kolkata-54, P.S Phool Bagan
3. Dr. Ratnadeep Ganguly, Consult ant Pathologist, Appollo Gleneagles Hospitals limited, 58, Canal Circular Road, Kolkata-54, P.S Phool Bagan
4. Dr. Susmita Haolodar Rakshit, Registrar, Appollo Gleneagles Hospitals limited, 58, Canal Circular Road, Kolkata-54, P.S Phool Bagan
5. Dr. Enam Murshed Khan, Consultant and Chief of Lab Services, Appollo Gleneagles Hospitals limited, 58, Canal Circular Road, Kolkata-54, P.S Phool Bagan
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J U D G M E N T
Sri Ananta Kumar Kapri, President
This case was once decided against the complainant and the complainant preferred an appeal being F.A no. 1998 of 2013 before the Hon’ble State Commission and the Hon’ble State Commission has been pleased to set aside the said judgment of the Forum by its order dated 26.6.2015 ,whereby the case has been transferred to this Forum from the DCDRF, Kolkata, Unit-II for fresh disposal of the case on merits after having given an opportunity to adduce evidence to the parties. Accordingly, the parties were given opportunities to file written statement and to adduce evidence and thereafter, the deck is clear for delivery of the judgment.
The facts leading to the filing of the instant case by the complainant may be epitomized as follows.
The complainant was under constant treatment of O.P-2. O.P-2 suggested her to undergo some tests – both clinical and pathological. O.P-1/hospital assured the complainant that they would do all tests of her as an in-patient and the cost for all such tests would be Rs.20,000/- only. The complainant agreed to pay the cost and was admitted to the said hospital on 18.8.2010, having paid Rs.20,000/-. From 18.8.2010 to 20.8.2010 she was admitted to the hospital. During her stay in the hospital she was not given proper care and minimum services in the ward. Bed Pan was not supplied to her, bed sheet was not also changed when it was soiled and dirty. On the second day of admission the O.p-1/hospital started demanding Rs.30,000/-more from the complainant- which caused a lot of mental agony, restlessness and anxiety in the mind of the father of the complainant. However, the father of the complainant ultimately paid Rs.5,510.87 .
Further, when the report of histopathology was received by the complainant on 24.8.2010, she fell mentally ill with a kind of phobia thinking that she would have no option but to die in cancer. Diagnosis of Colonoscopies Ileac Biopsy suggested “ High Grade Dysplasia, malignancy and parasites” – which indicates presence of cancer. Thereafter, on 1.9.2010, the complainant met her physician i.e O.P-2 who told her that the report was wrong and that she had no cancer. At the instance of O.P-2, the histopathological report was corrected. Now, the complainant has come up before this Forum with the filing of the instant case ,praying for passing an order of compensation of Rs.2 lac for deficiency in service on the part of the O.Ps and also for mental agony and suffering sustained by her.
Summons in the case have been served upon the O.Ps. Despite service of summons upon the O.Ps, O.P-1,2 and 4 have not turned up to contest the case, although they have filed affidavit-in-chief ,kept in the record. In absence of written version of them, the case proceeds exparte against them. It is O.P nos. 3 and 5 who have filed written statement separately in order to contest herein. The main contention of their written statement is that the complainant did not undergo any treatment on the basis of the histopathological report which had the typographical error. The typographical error in histopathological report was corrected and thereafter the treatment of the complainant was done by the consulting doctor. The Typographical error in the report can only give rise to some confusion in the mind of the complainant . But it can never create any mental agony and harassment as alleged by the complainant. There is no cause of action arising against them and, therefore, the case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The complainant has led her evidence on affidavit. Similarly evidence on affidavit has been led by the O.P nos. 3 and 5. Questionnaires, replies and BNA filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of the Ld. Lawyers appearing for both the parties. Perused the materials on record and also the evidence of the parties ,kept in the record. Considered all these.
It is undisputed fact that the complainant was admitted to O.P-1 hospital on 18.8.2010 for histopathological test and remained therein from 18.8.2010 to 20.8.2010. Also undisputed is the fact that the complainant paid Rs.20,000/- on the date of admission to the hospital. The histopathological report was given to the complainant by O.P-1hospital on 24.8.2010. There is a fault in this report and this fault is also admitted by the O.Ps including the contesting O.Ps i.e O.P nos. 3 and 5. According to the version of the contesting O.Ps , the said fault is nothing but a typographical error and such typographical error in hystopathological report does never give rise to any kind of cause of action for the case brought by the complainant.
In context of above undisputed facts and circumstances of the case, it is to be seen whether the error in hystopathological report amounts to deficiency in service on the part of the doctors and the hospital i.e the O.Ps. We know very well that the liability under Consumer Protection Act, 1986 is not absolute but strict. Absolute liability does never admit any kind of exception. But the situation is somehow different in the case of strict liability. Strict liability admits some exceptions and the exceptions are :- 1) Consent of complainant, 2) Act of God or Vis Major, 3) Complainant’s own default, 4) Act of stranger and 5) statutory authority.
In case of medical negligence the nature of liability is strict and the doctors as well as the hospital can avoid the said liability if they can prove that they took due care and caution as is expected from an ordinary skilled man. Applying the theory of due care and caution to the facts and circumstances of this case, it is found that the O.Ps have not been able to avoid the strict liability which rests upon them. A copy of hystopathological report has been produced on record by the complainant and the same is marked as annexure 3 to the complaint. The report reveals inter alia under the head “Microscopic examination” that there is no granuloma/High grade dysplasia/malignancy. But under the head “Diagnosis “it reveals “High Grade dysplasia, malignancy and parasites”. This report has been subsequently corrected and the two words “Negative for” have been prefixed to “High Grade Dysplasia, malignancy and parasites “in hand writing. All these go undisputed and we have to see on this report whether the report entails any lack of due care and caution on the part of the hospital authority and its doctors.
What is standard of due care and caution? The due care and caution on the part of the doctors and as required in law is that of an ordinary skilled man. So, it is found that ordinary prudence of a skilled man is the test to determine the degree of care and caution required to be taken on the part of the doctors. An ordinary prudent person is capable enough, if he once goes through the report ,to ascertain that the report is self-contradictory. This report is signed by two doctors i.e O.P nos. 3 and 4 , but they could not detect that the report was self contradictory in its contents. What does it mean? Does it not reflect the nature of care and caution taken by those doctors? The report indicates with a degree of certitude that those two doctors i.e O.P nos. 3 and 4 signed the report mechanically. The report indicates that those two doctors signed the report blindfold. Had those two doctors gone through the contents of the report, they would not have signed the report in that manner. They did not go through the report. The doctors own a duty to their patient and that duty has not been properly discharged by those doctors. The hospital has received a fabulous sums of money from the complainant for pathological tests. But the doctors of the hospital have fired blank. They have not exercised least care and caution much less due care and caution in issuing the report to the complainant.
Regards being had to all these facts and circumstances of the case and given the consideration as pointed out above, we do feel constrained to say that O.P nos. 3 and 4 have not applied due care and caution in signing the hystopathological report of the complainant and, therefore, they are held guilty of deficiency in service. Their fault in the manner of discharge of their duty is a glaring example of deficiency in service as defined in section 2(1)(g) , C.P Act, 1986. That apart, the defence of typographical mistake is no defence at all in a case of strict liability.
The further allegation of the complainant against the hospital authori8ty is that the authority demanded Rs.20,000/- as the cost of hystopathological test and that she paid the entire amount of Rs.30,000/- to the hospital on the very day of admission. But the hospital authority charged Rs.20,000/- more on the second day of her admission and her father was compelled to pay Rs.5,510.87 to the hospital authority. A copy of the bill issued by the hospital authority to the complainant is produced by the complainant and the same is marked as Annexure 2 to the complaint. From this annexure it stands established that the complainant has paid Rs.5,510.87 to O.P-1 on 20.8.2010. it is not at all specifically denied by the O.Ps that Rs.20,000/- more was never demanded from the complainant. We have no reason to disbelieve the evidence of the complainant. The complainant in her evidence has stated that on the second day of admission ,the hospital authority charged Rs.30,000/-more from her and that she had to pay Rs.5,510.87. This testimony of the complainant has virtually remained unchallenged. That apart, it has been a fashion nowadays on the part of the private hospital to demand more money from the patient than what is needed, misrepresenting the actual cost and this is generally done by the said hospitals after admission of the patients. In our opinion, such practice is nothing but a sharp practice tantamounting to unfair trade practice. The hospital authority will have to pay compensation to the complainant for such kind of unfair trade practice and such practice should be stopped.
To sum up, O.P nos. 3 and 4 are guilty of deficiency in service . They are attached to O.P-1 and, therefore, the O.P-1 is also held vicariously liable for deficiency in service on the part of the O.P nos. 3 and 4. The hystopathological report is not signed by the O.P-5 and this implies that the said report has not been produced before the O.P-5 for consideration. There is no allegation whatsoever against O.P-2 who is also a doctor attached with O.P-1. So, there is no cause of action arising in this case against O.P nos. 2 and 5. The case deserves to be dismissed against them.
In the result, the case succeeds in part .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 3 and 4 and exparte against O.P-1 hospital with a cost of Rs.10,000/-. The case stands dismissed against the O.P nos. 2 and 5 without cost.
The O.Ps i.e O.P nos. 1,3 and 4 , who are held liable jointly and severally, are directed to pay a sum of Rs.2 lac to the complainant as compensation for mental agony and torment , the complainant has undergone due to faulty report of the hospital, within a month of this order, failing which, the compensation amount and the cost amount as referred to above, will bear interest @10% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to deliver a copy of the judgment free of cost to the parties concerned.
President
I / We agree
Member
Dictated and corrected by me
President
