DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __229_ _ OF ___2012
DATE OF FILING : 27.08.2012 DATE OF PASSING JUDGEMENT: 18.9.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Suparna Khamaru, 146/C, Diamond Harbour Road, Behala, Kolkata -700060, P.S Behala.
O.P/O.Ps : 1. Dr. Ruben Bose, 69, Diamond Harbour Road, Behala, Kolkata – 700 038 , P.S Behala.
2. James Long Clinic (P) Ltd. 33, James Long Sarani, Kolkata – 34, P.S Behala.
3. Balananda Brahmachari Hospital, 151 & 153 Diamond Harbour Road, Kolkata – 34.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
With the allegation of professional negligence against the O.Ps, the complainant has filed the instant case under section 12 of the Consumer Protection Act, 1986 .
The facts leading to the filing of the instant case may be epitomized as follows.
Subodh Khamaru, the husband of the complainant was a retired Government Officer and he used to be treated medically by Dr. Ruben Bose, O.P-1 who is said to be his house physician. Subodh Khamaru was suffering from Type 2 Diabetes and Hyper- Tension. His condition aggravated on 29.9.2010 and he was treated by O.P-1. On 26.11.2010 , he started vomiting and felt breathing distress. O.P-1 was called in to his residence and the said Doctor i.e O.P-1 recommended for his admission to James Long Clinic, O.P-2. Some routine pathological examinations were suggested and also done in that Clinic. But, no improvement whatsoever was noticed. After 7 days of the admission, the complainant was discharged from O.P-2 Clinic.
On 6.12.2010 ,O.P-1 came to the house of the complainant and prescribed MUCIMIX 2 mm. The condition of the patient further aggravated; he felt burning sensation and serious discomfort in breathing., But, O.P-1 did not bother to change the medicine. He again advised the husband of the complainant to apply Salbair Inhaler, 2 Puffs at night. The condition of the patient deteriorated further at night; he woke up at night feeling a burning sensation. When contacted, O.P-1 was not available. Patient was taken to O.P-3 hospital on 7.12.2010 by the complainant. It is on that day, O.P-1 got the patient released from O.P-3 hospital and took him to his own Nursing Home i.e O.P-2 by an Ambulance without consent of the complainant. The patient was admitted to ICCU for four days in O.P-2 Clinic. No sign of improvement was found. Two Injections- ERTTAMAC and IMICELUM were purchased at high cost by the complainant and the same was administered upon the husband of the complainant. On 14.12.2010 he was released in poor state of health. On 16.12.2010 he expired on his way to hospital .
Now alleging deficiency in service coupled with professional negligence on the part of the O.Ps, the case is filed by the complainant, praying for payment of Rs.15 lac as compensation for mental agony, Rs.3 lac as cost incurred in treatment and Rs.25000/- as litigation cost. Hence, arises the instant case.
O.P-3 has filed written statement wherein it is contended inter alia that the patient was admitted to his hospital on 7.12.2010 at 4.30 a .m and he was also released on the same day on the request of the complainant for admission to O.P-2 Clinic. All treatment papers were handed over to the complainant on 19.4.2011.
O.P-2 has contended in the written statement filed by it that the husband of the complainant was under treatment of O.P-1 for a long time, that he was admitted under care, guidance and recommendation of O.P-1 and that he was admitted to ICCU for four days. Medicines were administered as per doctor’s advice. He was discharged on 14.12.2010 not at all in poor state of health. It is further submitted on behalf of the O.P-2 that the complainant did not even make payment of the final bill , no negligence whatsoever was caused by the O.P-2 Clinic; there arises no cause of action of the complainant against him and, therefore, the case should be dismissed in limini with cost against the Clinic.
O.P-1 is the Doctor and he rendered treatment to the patient. He has filed written statement which is nothing but a repository of denials with a smell of a few positive case. He admits that he had treated the patient from 2009 to 5.2.2010 for cough and cold. He denies that complainant requested him several times to refer the case to some other Specialist. He does not rely upon the prescription dated 26.11.2010 of the complainant as no copy of the said prescription has been served upon him. He submits that he is a Pediatrician as well as a General Medical Practitioner having MBBS Degree and has been doing his practice with considerable reputation for about 40 years. According to him, he treated the patient with due care; competent and skill and there arises no question of professional negligence on his part. The petition of complaint is fictitious, illusory and highly speculative and, therefore, it should be dismissed with exemplary cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of professional negligence as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE ON AFFIDAVIT
Evidence on affidavit is filed on behalf of the complainant along with photocopies of some prescriptions and documents of O.P-2 Clinic and the same is kept in the record after consideration. The written statement filed by the O.Ps are treated as their evidence vide their petition dated 31.7.2018. Questionnaires, Replies, BNAs filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
We have already heard the submissions advanced by the Ld. Lawyers ,appearing for the parties. Perused the petition of complaint, written versions submitted by the O.Ps, the expert report dated 10.3.2014 kept on record and all other documents filed on behalf of the parties. Considered all these.
The husband of the complainant was a retired Government Officer and he was all along treated by Dr. Ruben Bose, O.P-1. He was admitted to ICCU in O.P-2 Clinic for a continuous period of 7 days under care and treatment of O.P-1 and thereafter he was released therefrom, as goes the version of the Clinic, in stable condition on 14.12.2010. But, on 16.12.2010 he expired on the way to hospital. On his death, the complainant has been cut to the quick and has ,therefore, filed the instant complaint, alleging professional negligence on the part of the O.P-1 and the O.P Clinic/hospital.
Every death is unfortunate; what is more unfortunate is the fact that some persons have been out to expose themselves as skilful doctors in order to make a first buck. There are, no doubt, some good doctors . On the other hand, the number of fake doctors is also increasing day by day in our society. These fake doctors have no right to practice and they have befouled the fair name and reputation earned so far to their credit by the skilful doctors of our country. There are rules and regulations framed by the competent authorities to pre-empt the intrusion of all these bad apples into the dignified profession of physician. But, still it has not been possible to keep them aloof and this is because of the fact that there is no constant monitoring system provided by the administration in our society. In the circumstances and in view of the present set up of the society, we think that it is high time for the judicial bodies to use their ever vigilant scalpel scrupulously to ensure that the rotten element do not canker the noble profession of the Doctors and do not thereby make a hell with the lives of the innocent people.
Coming to the facts of the instant case, it is to be seen now, whether any professional negligence stands established on the materials placed on record by the parties. An expert report was called for from SSKM Hospital, Kolkata – 20 to detect whether there lies any fault in the treatment and management of the patient as done by the O.P nos. 1 and 2. The said expert report bearing no.SSKM/MSVP/296 dated 10.3.2014 has been received from the said hospital and the report, amongst other things, reads as follows:-
“……………………………………………………………………. From the record it appears that patient was managed reasonably in the James Long Clinic Pvt. Ltd. so that the patient was discharged on stable condition after 7(seven) days of re-admission”.
Report of Dr. Sk. Sahidul Islam , Cardiologist of the said hospital is also attached with the above report and it goes thus:-
“ The case was not primarily a cardiac one”. The report simply gives out that the patient was managed reasonably and that he was discharged on stable condition after 7 days of re-admission. The report is a laconic one and does not furnish any ground for arriving at a conclusion. It is too cryptic to earn the distinction of a qualitative report made on proper application of mind by its author. It appears to be perfunctorily recorded. The Law enjoins that an expert report is a vital document for arriving at a conclusion on whether any professional negligence has been caused or not in any particular case. But the cryptic report appears to have thrown no light to our satisfaction for drawing a judicial conclusion on that matter. The case has been pending since 2012; six years have already passed away.
Having taken into consideration the period of long pendency of the case, we feel constrained to accept the expert medical report nolens volens and do hold that no mis-management or miss-treatment has been rendered to the husband of the complainant by the O.P-1 and the O.P-2 clinic. But , keeping in mind the solemn duty which has been entrusted on us, we cannot but say that we have to scrutinize minutely as to whether the Rules and Regulations which are framed for guidance of the physicians by the competent authority are properly adverted to by O.P-1 i.e Dr. Ruben Bose.
A code of conduct for the Doctors has been formulated by Indian Medical Association and the said code of conduct is provided in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 which is approved in the meeting of the West Bengal Medical Council dated 2.4.2003 and 17.4.2003.
The Regulation 1.3.1 provides that every physician shall maintain a medical records pertaining to his/her indoor patients for a period of three years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India.
Regulation 1.4.1 gives a direction to every physician to display the registration number accorded to him by the State Medical Council/Medical Council of India in his Clinic and in all his prescription, certificates , money receipts given to his patients.
Regulation 6.1.1 makes it unethical for every physician to indulge in advertisement in any mode anything for betterment of his profession.
Regulation 7.1 lays down that any violation of any regulation including those mentioned as above is a misconduct on the part of the physician and such professional misconduct renders him punishable to disciplinary action.
In the instant case, the complainant has filed photocopies of four prescriptions dated 29.10.2009, 29.6.2010, 29.9.2010 and 26.11.2010 issued by O.P-1. It is not the version of the O.P-1 that these prescriptions are not his and that these prescriptions are fabricated and concocted by the complainant. O.P-1 has challenged these prescription as being unreliable for the reason that the copies of those prescriptions have not been served upon him. That is another matter. But the fact that those prescriptions were issued by the O.P-1 stands established and now we can hold that those prescriptions are prescriptions of none but O.P-1 i.e Dr. Ruben Bose. On perusal of those prescriptions it is found that the registration number of the Doctor is nowhere mentioned on those prescriptions. The registration number is not found mentioned in any of those four prescriptions. Is it the fact that the said Doctor does not have any registration number ?
Be that as it may, we feel no hesitation to hold that the said doctor does not have any registration number and that he has no right to practice. Without having registration number, O.P-1 is doing brisk practice. This is nothing but misconduct on the part of the O.P-1 for which he is liable to disciplinary proceedings by the competent authority. So far as our ambit is concerned, we do hold that to do medical practice by the O.P-1, without having or mentioning registration number on the prescriptions, is a professional misconduct on the part of the O.P-1.
It has been contended on behalf of the O.P-1 that no copy of prescriptions have been served upon him and as such reliance can never be placed upon those prescriptions filed by the complainant. If the copies of those prescriptions were not served upon O.P-1, he could have filed an application before the Forum praying for service of those documents upon him. But he did not. Moreover, it does not behove him to say that he knew nothing else about those prescriptions as copies of those prescriptions are not served upon him. It is incumbent upon him to preserve the copies of those prescriptions by him as per Regulation no. 1.3.1 as mentioned above. It is his duty to take proper step for maintenance of medical record. From his own averment, it is proved that he has not taken any step for maintenance of medical records in compliance of Regulation 1.3.1. This is another violation of the Regulation which exposes him to professional misconduct and also to disciplinary action by the competent authority. Non-maintenance of medical record in obedience to regulation as pointed out above by the O.P-1 is also a professional negligence committed by the O.P-1.
A practicing doctor must have necessary skill, competence and qualification for rendering treatment to a patient. At the same time, he must get himself enrolled with State Medical Council or the Indian medical Council for the purpose of rendering practice in the country. If he is not enrolled ,he has no right to practice in the country. It has already been mentioned that Dr. Ruben Bose i.e O.P-1 has no registration number either from State Medical Council or from Indian Medical Council This being so, he has no right to practice and he can never be called a doctor having necessary skill, competence and qualification. Rendering of treatment to the husband of the complainant by the O.P-1 without having necessary skill, competence and qualification, is also tantamount to professional misconduct on his part.
Now comes the question whether O.P-2 Clinic has committed any professional negligence. Certainly, it has committed such negligence on his part and we have not to grope out anywhere ,but the order sheets of this case record. This Forum directed O.P-2 by its order no.56 dated 20.7.2016 to produce all treatment papers of the husband of the complainant before the Forum and this matter was adjourned from time to time i.e on 18.8.2016, 20.9.2016, 3.11.2016 , 6.12.2016 for production of the said record by the O.P-2. But O.P-2 did not produce the treatment papers and ultimately the Forum was compelled to direct Behala P.S to collect and produce those papers before the Forum. Accordingly, Behala P.S collected and produced those papers before the Forum on 13.1.2017. This single incident goes to prove how negligent O.P-2 is and taking this incidence into consideration we make no scruple to say that the O.P-2 is professionally negligent and such negligence has entered into his soul. The non-production of treatment papers before the Forum and non-compliance of the order of the Forum is also an act of deficiency in service on the part of the O.P-2 and hence it is a misconduct also on the part of O.P-2, Clinic. Further, O.P-2 is also vicariously liable for allowing a person like O.Ps to practice in the clinic, who has no registration number.
As regards O.P-3 Hospital, we fail to find out any kind of professional negligence on its part. Husband of the complainant was admitted to this Hospital on 7.12.2010 and he was taken away from that hospital by the complainant on risk bond after a few hours and, therefore, no professional negligence can be attributed to this hospital.
A serious allegation has been leveled against O.P-1 by the complainant to the effect that O.P-1 got the patient discharged from O.P-3 hospital and took away to O.P-2 Clinic for admission. This allegation is found to have no basis at all and it is established by the letter dated 6.4.2011 ,which was written by the complainant herself to the Superintendent of O.P-3 hospital. It is mentioned in that letter that the complainant herself took away the patient to the O.P-2 Clinic on her own accord. So, it is found that the allegation of the complainant has no leg to stand upon.
Upon what have been discussed above, it is found that the O.P nos. 1 and 2 have committed professional negligence ,for which complainant has been faced with unnecessary mental distress and agony to a large extent.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.P nos. 1 and 2 ,but is dismissed against O.P-3 .
Both the O.P nos. 1 and 2 will have to pay a cost of Rs.10,000/- to the complainant and they will remain liable for making such payment jointly and severally.
Both the O.P -1 and O.P-2 are directed to pay Rs.1 Lac each to the complainant as compensation for mental distress and agony within a month of this order, failing which all the amounts mentioned above including the cost amount will bear interest @10% p.a till full realization thereof.
Let a copy of this order be sent to the West Bengal Medical Council for their information and taking necessary action against O.P-1 Dr. Ruben Bose .
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
