HON’BLE MR.TARAPADA GANGOPADHYAY,MEMBER
This Appeal U/s 15 of the C.P.Act 1986 is directed by the OP No.2-Nursing Home against the Judgement and Order dated 19.11.2015 passed by ld. District Forum, North 24 Parganas at Barasat, directing the OPs No. 1 and 2 to pay jointly and severally , within one month from the date of the Order, to the Complainant Rs.1,10,000/- (Rupees one lakh ten thousand) as Compensation and Rs.25,000/- (Rupees twenty five thousand) as litigation cost, failing which the OPs shall have to deposit with the said Consumer Welfare Fund Rs.100/- (Rupees one hundred) per day as punitive damage for the entire period of default.
Brief facts of the case, as emerging from materials on record, are that the Respondent No.1/ Complainant visited Respondent No.2 /OP No.1 –Doctor with complaint of “Right Sided Inguinal Hernia” and the Respondent No.2/OP 1-Doctor operated the same on 23.2.2013 at the Appellant OP-1/Nursing Home and discharged the Respondent 1/Complainant on 26.2.2013. After discharge the Respondent No.1/Complainant suffered from “High Fever, severe pain in the operated area along with pus discharged from the wound”. In course of such suffering the Respondent 1/Complainant revisited the Respondent 2/OP 1-Doctor on 19.3.2013 and 24.3.2013 and the Respondent 2/OP 1-Doctor advised some tests and prescribed some medicines. Thereafter, the Respondent 1/Complainant visited the Respondent 3/OP 3-Doctor who prescribed some medicines, but the condition having deteriorated the Respondent 1/Complainant visited the Apollo Hospital, Chennai where “1. Exploration of Right Groin Wound 2. Evacuation of Sepsis 3. Removal of Infected Mesh” were done as revealed from the “Discharge Summary” dated 6.5.2013 of Apollo Hospital, Chennai as available on records. It is alleged in the Petition of Complaint that due to negligence and carelessness in course of first operation by the Respondent 2/OP 1-Doctor, second operation had to be done which resulted in both physical, mental and financial sufferings. With the aforesaid factual matrix the Complainant moved the Complaint Case concerned before the ld. District Forum which passed the Order in the aforesaid manner. Aggrieved by such order the OP 2-Nursing Home has preferred this Appeal.
Ld. Advocate for the Appellant/OP 2-Nursing Home submits that in the Complaint Case concerned allegation is against the Respondent 2/OP 1-Doctor and there is no allegation against the Appellant/OP 2-Nursing Home.
Ld. Advocate also submits that the Respondent 1/Complainant has not been able to prove his allegation with expert opinion as is required.
Ld. Advocate continues that the ld. District Forum passed the order impugned without proper application of judicial mind.
Ld. Advocate concludes that in view of the aforesaid submissions the instant Appeal should be allowed and the order impugned be set aside against the Appellant/OP 2-Nursing Home.
On the other hand, ld. Advocate for the Respondent 1/Complainant submits that the second operation in Apollo Hospital, Chennai where “Infected Mesh” was removed from the operated site as revealed from the “Discharge Certificate” dated 6.5.2013 of Apollo Hospital, Chennai, clearly indicates deficiency in service and resultant medical negligence on the part of the Respondent 2/OP 1-Doctor.
Ld. Advocate continues that the Appellant/OP 2 –Nursing Home is also vicariously liable for its failure to ensure proper and reasonable care on behalf of the Respondent 2/OP 1-Doctor who was engaged with the Appellant/OP 2-Nursing Home for providing careful and reasonable service to its patient.
Ld. Advocate concludes that in view of the aforesaid submissions the instant Appeal should be dismissed and the impugned order be affirmed.
Ld. Advocate for the Respondent 2/OP 1-Doctor submits that the operation in question was done as per standard Protocol and subsequent Doctors did not opine in respect of any mistake in the operation done, and that the Respondent 1/Complainant has not discharged his obligation to prove the allegation with Expert Opinion.
Ld. Advocate also submits that it is well settled by the Hon’ble National Commission in Tagore Heart Care and Research Centre Pvt. Ltd. & Another –Vs- Mrs Kanta, decided on 27.5.2011 in first Appeal No.426 of 2006 that for adverse effect during or after surgery principle of Res Ipsa Loquitur is not applicable.
Ld. Advocate concludes that in view of the aforesaid submissions the instant Appeal should be allowed and the impugned order be set aside.
Heard both the sides, considered their respective submissions and perused the materials on record.
The observation in the “Discharge Certificate” dated 6.5.2013 of Apollo Hospital, Chennai where the Respondent 1/Complainant had to undergo repeated surgery, to the effect “2. Evacuation of Sepsis 3. Removal of Infected Mesh” in course of “POST LAPAROSCOPIC RIGHT INGUINAL HERNIA REPAIR” clearly indicates deficiency in proper and reasonable service and resultant medical negligence as well on behalf of the Respondent 2/OP 1-Doctor.
It is well-settled by the Hon’ble Supreme Court that expert-opinion is not necessary in all cases, particularly in the cases where negligence is apparent on the face of the record as in the case on hand.
The foregoing evidence on record indicates that three essential components of medical negligence, i.e. “Duty”, “Breach” and “Resultant Damage” as held by the Hon’ble Supreme Court in Jacob Mathew –Vs- Sate of Punjab and Another, reported in (2005) 6 SCC 1, are present in the case on hand.
It is well settled that the Appellant/OP 2-Nursing Home is also vicariously liable for his failure to ensure proper and reasonable service on behalf of the Respondent 2/OP 1-Doctor who was engaged with Appellant/OP 2-Nursing Home for providing proper and reasonable service to the patient.
In view of the above discussions the instant Appeal deserves dismissal and is dismissed accordingly and the impugned order is affirmed.
