In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, 4th Floor, Kolkata-700087.
CDF/Unit-I/Case No.210/2009
1) Sm. Nandini Bandyopadhyay,
Flat No.D-3, 66/3/1, College Road,
Howrah-711103, West Bengal. ---------- Complainant
---Versus---
1) Belle-Vue Clinic,
9, Lowdon Street,
P.S. Shakespeare Sarani, Kolkata-17.
2) Dr. Subrata Maitra,
FD/22, Sector-3, Salt Lake City, Kolkata-700106. ---------- Opposite Parties
Present : Sri Sankar Nath Das, President.
Dr. Subir Kumar Chaudhuri, Member.
Smt. Samiksha Bhattacharya, Member
Order No. 43 Dated 31-05-2013.
The case of the complainant in short is that complainant’s father P. Mukherjee since deceased was taken to Dr. Amal Bhattacharya, FRCS on 1.6.07 and upon examination while noting clinical observation Dr. Bhattacharya duly noted under the heading of problem: (i) General debility, (ii) Left direct inguinal hernia, (iii) BPH, (iv) LBP, and upon examination the doctor advised the patient to be admitted in Medi View Nursing Home, 74, Broad Street, Kolkata.
In spite of such direction the patient was taken to o.p. no.1 on 2.6.07 and he was placed under the supervision of Dr. Subrata Maitra who because of the pain of the patient in left groin advised for USG and on the self same date the USG was done. That apart, thyroid function test was also done which followed by liver function test and various blood tests.
From the USG of whole abdomen it is apparent that the liver of the patient was enlarge in size. Multiple ill defined mixed echoic and hyperenchoic SOL of different sizes are involving the liver in connection with prostrate the reports speaks of that the same was enlarge in size and measures 5.24 x 5.36 x 5.76 cms. Echo Texture is heterogenous. Finally the impression of USG study of the whole abdomen shows – (1) Hepatomegaly with multiple illdefined hyperechoic and mixed echoic SOL involving the liver - Metastasis. (ii) Mild irregular thickening of the bladder wall with incomplete bladder evacuation. (iii) Gross prostatomeguly. (iv) Wild ascites. Suggested CT Scan of better evaluation.
As the advice of the said sonography report the CT guided FNAC was done on 5.6.07, whose report was available on 6.6.07 which reveals metastatic adenocercinoma (suggested prostrate scan to rule out possible primary). Ultimately on 8.6.07 at 10-35 a.m. the father of the complainant died at Belle View Nursing Home.
On 2.6.07 patient was admitted with weakness and a pain in left groin for entire body check up. On 3.6.07 sonography and blood test was made. A suspected cancer in liver and lungs had been detected. On 4.6.07 o.ps. took patient to do CT Scan guided FNAC a very painful test. The pathway to the laboratory was closed and suffocating at different places. Patient was kept waiting at these corridors for long time without any attendant. The patient felt suffocating but no one took notice of that or provided oxygen to him. After keeping the patient waiting there for more than 1.3 hours in miserable condition the test was actually not done and the patient returned to the cabin.
On 5.6.07 morning a bed sore was found in his back. This also occurs due to acute negligence of nursing care of the hospital. The attending nurses tried to establish that patient was admitted in the hospital with the sores the available proof speaks otherwise.
On 5.6.07 when CT Scan guided FNAC was done. The patient was in need of oxygen which was not provided immediately. On 6.6.07 at 11-00 a.m. catheter was administered to the patient as for long period urination was not done by the patient. It is felt that by detecting liver cancer doctor / hospital had finished their duty and a cancer patient has no right to get treatment for any other illness.
On 7.6.06 the leg pain was more or less same but no diagnosis could be made. At that afternoon at 3-00 p.m. patient felt feverish, rigor also occurred and reported. On 8.6.07 in the morning at 7’ clock it was made known to the complainant that patient had been feeling very bad. Immediately the complainant took steps to contact Dr. Moitra, o.p. no.2 but o.p. no.2 was not available then. Ultimately Dr. Neogi, a team mate of Dr. Moitra was contacted and requested to look after the patient but the doctors came at 10’ clock along with Dr. Chanchal Goswami, a cancer specialist. Dr. Goswami at the point informed the complainant that her father has been suffering from a life threatening disease urinary sepsis, which occurred due to infection. He did not prescribe any medicine to fight but one medicine to fight his lung cancer.
Considering the case history, treatment records and the investigation report of blood, urine, etc. of the Belle Vue Clinic in respect of Mr. P.K. Mukherjee who was admitted there from 2.6.07 at 10-30 a.m. to 8.6.07 at 10.35 a.m. ( i.e. the time of his death). Complainant is of the opinion that Dr. S. Moitra and the other doctors (RMO) of his team who attended Mr. P.K. Mukherjee during this period did not exercise reasonable degree of skill and care which they should have done in diagnosing and controlling urinary infection and sepsis existing in him either at the time of admission on 2.6.07 or within a reasonable time after his admission at Belle Vue Clinic, Kolkata.
Due importance should have been given to the highly raised level of Fibrinogen, FDP, D-Dimer, PSA in the blood of Mr. P.K. Mukherjee and proper management should have been provide for them by way of consulting appropriate specialist / expert doctors (Oncologist, Hematologist and Urologist) immediately after obtaining USG report dt.2.6.07 and blood report dt.3.6.07.
This proves the deficiency in service of o.ps. and their negligent approach and a copy of the report of Dr. A. Gupta is annexed hereto as annexure ‘A’. Hence the case was filed by the complainant with the prayer contained in the petition of complaint.
O.p. nos.1 and 2 had entered their appearance in this case by filing two separate w/vs denying all the material allegations labeled against them and prayed for dismissal of the case. Ld. lawyer of o.ps. in the course of argument submitted that the case has got no merit and the same is liable to be dismissed.
Decision with reasons:
We have gone through the pleadings of the parties, evidence and documents in particular. Ld. lawyer for the complainant submitted that the complaint has been filed by the complainant on the grounds of deficiency in service and negligence in providing treatment to her father, since deceased, wherein the complainant has prayed for compensation and cost for mental agony and harassment and cost of proceeding.
Admittedly complainant’s father was reported to have (a) enlarge liver, (b) multiple ill defined mixed echoic and other ailments. USG study and CT Scan were done for better evaluation. While suspected cancer in liver and lungs had been detected no appropriate examination were made for proper confirmation thereof.
On 5.6.07 ‘bed sore’ was detected at the back of the patient which speaks of clear negligence in treating the patient.
On 6.6.07 catheter was administered when the urination was stopped. Subsequently no urologist was consulted to detect whether the patient had any prostrate complication or not. No steps had been taken for proper detection of carcinoma.
The o.ps. have stated much against the report of Dr. Ajoy Kumar Gupta but the deficiency highlighted therein has not been controverted by any expert on behalf of the o.ps. In the present case the o.ps. did not considered it proper to justify their treatment by cogent evidence. The decision of the Apex Consumer Commission of the country reported in 2013 (1) CPR 193 (NC) and 2010 (4) CPR Page-1 and the decision of Hon’ble National Consumer Disputes Redressal Commission reported in 2006 CTJ 334 have been rejected by complainant.
Father of the complainant, since deceased at the age of above 84 years was admitt4ed in Belle Vue Clinic on 2.6.07 with certain problems. In spite of rendering the best medical service the patient expired on 8.6.07. Initially patient was examined by Dr. Amal Bhattacharya on 1.6.07 as mentioned in paragraph no.1 of the complaint and after preliminary observations he advised the patient for admission in Mediview Nursing Home at Broad Street but the patient out of his own choice got admitted in Belle Vue Clinic on 2.6.07 under his own selected doctors.
Complainant did not say anywhere in the complaint that she was present in the clinic or by the side of the bed of her father to observe all the treatments rendered to her father. In paragraph 4(d) the complainant alleged that bed sore was found in the back on 5.6.07 and also further said in the said paragraph that the hospital tried to establish that patient got admitted with bedsore. Fact remains at the time of admission on 2.6.07 it was recorded on the inside cover of the case history sheet that ‘the patient was received with bedsore on buttock”. This recorded fact was never controverted or denied by her evidence.
Same observation was duly accepted and signed by the patient party. The daily nursing notes dt.3.6.07 to 7.6.07 clearly recorded that due care of the bedsore was taken by the nursing stuff. From the above record as referred to it is clear that the patient got admitted with the bedsore and proper care was taken to that effect.
Another allegation was made in paragraph 4(e) of the complaint alleging interalia that when CT Scan guided FNAC was done on 5.6.07 the patient was in need of oxygen which was not provided immediately as alleged. The question of delay in supplying oxygen never arose. Bed-head ticket did not speak anything about the allegations. No damage of any kind for want of oxygen has been alleged by the complainant. Complainant was neither with the side of the patient nor the source of information is disclosed. Bed-head ticket clearly proves that the patient got admitted with bedsore.
Initially, the maintainability of the case was challenged before the Ld. Forum on the basis of the judgment in re: Martin F De’ Souza –vs.- Mohd. Ishaq reported in 2009 CTJ 352 (SC) but ultimately it was held by the Ld. Forum and State Commission in Revision that the case will be maintainable in view of the subsequent judgment in re: Malay Kr. Ganguly –vs.- Dr. Sukumar Mukherjee reported in 2009 CTJ 1064.
Complainant having no knowledge of the incident and/or treatment on the basis of hearsay evidence filed this complaint. O.p. no.1 relies upon the bed-head tickets and refers the every day’s report therein to justify the system adopted by the hospital and to justify that the bedsore was existing in the back of the patient prior to admission. The hospital is obliged to deal with the allegations made against the hospital and not against the doctors. The doctors were chosen by the patient and the doctors are not the employees of the hospital. However, by filing w/v and evidence on behalf of the hospital, it was shown that there was no negligence on the part of the hospital in providing medical assistance as required and/or as referred to by the treating doctors time to time. There is also no allegation from any corner that the hospital could not provide required support for the treatment of the patient.
Complainant submitted an opinion of one Dr. Ajoy Kr. Gupta but such opinion was never proved either by affidavit or on dock in respect of the said opinion. Without affording any opportunity of examination, no reliance can be placed on such opinion. Such opinion has got no evidential value in the eye of law. It has been made clear by the Hon’ble Supreme Court in the judgment of Malay Kr. Ganguly that the application of so called opinion of expert in determining the case of medical negligence is Ld. Court’s discretion. Any report of expert does not have any evidential value without proving the same. Expert evidence cannot justify the fact but can give light with regard to Ld. Court’s requirements relating to technical, medical and other aspects to assist to come to a finding and such requirement through an expert has to be fulfilled by the concerned court on its requirement and/or for want of clarification. No interested party can rely upon any opinion of his/her own and such opinion cannot be relied upon in a proceeding to earn some benefit. As such, the report of Dr. Ajoy Kr. Gupta has got no evidential value. It is well settled that the document has to be proved by the author to give some weightage in the eye of law.
Complainant did not have any direct knowledge about the factual aspect. The evidence of the complainant was absolutely baseless before the Forum and on factual aspect no evidence has been adduced as to how the complainant came to know the alleged sequence of events and developments. Complainant also did not say as to how and when she came to know about the alleged incident in the hospital, when the patient is no more in the world.
Complainant stated in the evidence that the submissions made by her in the complaint starting from paragraphs 1 to 5 would be treated as her evidence. The statements made in the complaint cannot be treated straightway as evidence under the law. Every fact stated therein has to be corroborated either on affidavit or on dock. Such statements made in the evidence stating interalia that the statements made in paragraphs 1 to 5 of the complaint would be treated as evidence as such has got no evidential value. No answer was also given by the complainant in her answer against question no.7 with regard to the reliance of such evidence. The complainant also did not make or exhibit the documents relied upon and without production of the documents, no document can be proved before the Forum. The acceptability of such document cannot be confirmed without production of the document. In Answer no.9, the complainant failed to give answer as to why the documents were not produced.
The guideline of Hon’ble Supreme Court to justify the allegations against medical negligence are not followed in any manner whatsoever. The deficiencies have to be pin pointed and no floating remark or imaginary remark without evidence can attract the provisions of COPRA. The o.p. relied upon the decisions as follows:
i) (a) IV (2012) CPJ 610 (NC) Tilat Chowdhury & Anr. –vs.- AIMS & And. Para -12, 13.
(b) 2010 CTJ Supreme Court 241 in re : Kusum Sharma & Ors. –vs.- BatraHospital & Medical Research Centre. Para – 59, 66, 69, 87, 90 and 94(i) to 94 (xi).
ii) I(2009) CPJ 32 (SC) Supreme Court of India in re : Martin F. D’Souza –vs.- Mohd. Ishfaq, Para – 73, 76, 115.
iii) Tarun Thakore –vs.- Dr5. Noshir M. Shroff, P.O. No.215/2000, dt.24.9.2002 (Relied), (Para – 12).
iv) Indian Medical Association V.P. Shantha, I (1996) CLT 81 (SC) = III (1995) CPJ 1 (SC) (Relied), (Para – 12).
v) Vinita Ashok V. Lakshmi Hospital, I (2002) CPJ 4 (SC) (Relied), (Para – 12, 24).
Late P.K. Mukherjee, a 84 years old gentleman, was admitted in a debilitated, bed-ridden condition in a malnourished state with history of several chronic disorders like hypertension and prostrate problem. On admission he had bed sore. On 2.6.07 the patient was seen on two occasions and in the evening round it was clear that the patient had a large long tumor and on 3.6.07 the patient was seen twice and after perusal of different test results it was clear that the patient was probably suffering from a malignant disorder which had spread to the liver (stage IV case and that the prognosis of this condition was very critical) as it appears from bed-head tickets.
We find from behead tickets lying with the record that on 4.6.07 the patient was seen twice by the medical team. Other cancer makers from intestine and prostrate were also found to be elevated. CT guided FN AC was planned from the liver and on 5.6.07 doctors suggested some other medication in the BHT which was finally administered to the patient as is evident from the nursing notes and again on 6.6.07 the BHT reveals that doctors prescribed some more medications and requested for physiotherapy. The nursing notes confirm that the medicines were applied and the BHT entry indicates that physiotherapy was applied and on 6.6.07 the BHT indicates that the patient received treatment for his urinary retention by the doctor which was properly recorded and on 6.6.07 the patient was seen by Oncologist Prof. Anup Majumder which is also recorded in BHT with properly signed and on 6.6.07 BHT reveals that the patient received further treatment for his urinary problem.
And on 7.6.07 we find from the bed-head tickets that doctors referred the patient to another Oncologist for second opinion, as per the suggestion of the complainant, Dr. Chanchal Goswami examined the patient on the next day. On 7.6.07 evening during an episode of febrile state, the patient was seen by a doctor who did relevant investigations and prescribed medications as it appears from bed-head tickets and on 8.6.07 the patient was seen on several occasions starting from 5-00 a.m. From 7-00 a.m. onwards the patient’s condition started deteriorating with fall of blood glucose with was treated appropriately and approximately 9 a.m. the patient was seen by by another Oncologist of the party’s choice (Dr. Chanchal Goswami) along with Dr. Maitra, who thought that the patient was suffering from cancer long spread to the liver along with urosepsis. He explained the poor outcome to the daughter in presence of Dr. Maitra. From 10 a.m. onwards, the patient’s condition started deteriorating sharply in spite of supportive care, and finally the sustained cardiac arrest. Unfortunately, he expired at 10-35 a.m. in spite of all resuscitative measures. The entire team of doctors including Dr. Maitra, Dr. Neogi and the RMO were present during the terminal event. The cause of death was metastatic liver disease, space occupying lesion of lung and sepsis.
Bed-head tickets go to show that there was no deficiency of service, negligence or error of judgment whatsoever and negligent in medical care and who management was done by o.p. n.2. The patient was attended regularly and two expert doctors of the concerned filed were consulted immediately upon reading the diagnosis. It appears from the record that complainant had made similar complaint against o.p. no.2 before the West Bengal Medical Council nearly one and half years back with a copy of complaint to the Medical Council of India, New Delhi. The penal and ethical committee of the West Bengal Medical Council after making a thorough enquiry into th e matter which included interviewing a panel doctors and Ms. Nandini Bandopadhyaya, the council wrote a letter to complainant mentioning that the council is not proceeding any further in this matter and thereafter, an appeal was preferred u/s 26 of the West Bengal Act, 1914 against the decision of the West Bengal Medical Council regarding alleged medical negligent against Dr. Subrata Maitra and his team. The appellate authority rejected the appeal.
From the documents provided by the complainant it is evident that a day before admission he consulted another doctor in the in the community, Dr. Amal Bhattacharjee, FRCS, Consultant Orthopaedician, who also noted general debility, low BP, back pain, prostrate problem and suggested for x-ray chest, some blood tests, ultrasound of the abdomen and MRI Scan of the spine, nowhere did he mention about any fever or any urinary symptom and nor did he request for any urinary test which is the preliminary test for a urinary tract infection.
Record shows that Late P.K. Mukherjee was admitted with severe weakness general debility and malnutrition as evidenced by low haemoglobin and low albumin level, indicating medication poor nourishment for some time and on admission he was immobile and the nurses recorded an area of superficial skin peel off over his back vide Bed-head ticket 1st cover page back side and the nursing note. Patient was also suffering from chronic comorbidities like – (a) Hypertension for which he was already on medication, (b) Prostrate problem for which he was also on medication.
Bed head tickets show that ultrasound of liver showed evidence of space occupying lesion. Although at that time no histopathelogical (biopsy) evidence of malignancy was available, the strong clinical suspicion of disseminated malignancy (Stage IV cancer) and the associated poor prognosis. Immediately upon receipt the preliminary reports, after taking appropriate precaution, FNAC from the liver was done on 5.6.07 and the histopathelogical report was available on 6.6.07 indicating metastatic adenocarcinoma i.e. cancer which has spread to the liver.
All the supportive tests were also indicative of an underlying cancer like x-ray chest, raised CEA raised PSA, high CRP, high D-Dimer, high fibrinogen and PDP, low haemoglobin and low albumin were also indicative of a severe catabolic state with poor nutrition which is commonly found in disseminated malignancy. The o.p. no.2 and his team immediately referred him to a renowned oncologist of the city to decide upon which course of action would be appropriate in this case. Prof. Anup, SSKMHospital, examined him on the same day and opined that the patient was suffering from disseminated malignancy and also mentioned that the repeutic options were limited due to proof performance status.
Supportive therapies like – pain killing with analgesics, physiotherapy with TENs and nutrition therapies were offered to improve general condition of the patient as it appears from Bed-head tickets. It needs to be mentioned that for the first time the patient gave symptoms of sepsis with shivering, fever and slightly raised respiratory distress. That was the first time when the necessity of antibiotics was felt and started immediately. Previous to that all his symptoms were very adequately explained by underlying disseminated cancer, general debility, bedridden condition and poor nutrition.
It is seen from the record that on 8.6.07 approximately at 9-30 a.m. Dr. Chanchal Goswami visited the patient and the o.p. no.2 was along with him. Both examined the patient. Dr. Chanchar Goswami was of the opinion of lung cancer with liver metastasis along with urinary sepsis which carry out very poor prognosis and there was no scope of chemotherapy or radiotherapy.
We find from the record that while answering the question nos.1 to 12 put forward by o.p. no.2, the complainant denied all the written instruction of investigation and treatment that was finally carried forward by the nurses, the complainant stated that “I have not said that written instructions are necessary for treating patient as alleged by you”.
W further find from the record that in response to question nos.13 to 16 where the o.p. no.2 asked whether the complainant denies the treatment given to her father as noted in the Bed-head ticket. There was also a question to the complainant whether she was present at the bed side on 7th evening. Her reply was “I am not a doctor and I cannot say yes or no to your question” and in response to question no.17 whether she denied entries made by Dr. Neogi, Dr. Naskar in the Bed=head ticket and see by o.p. no.2 Dr. Maitra, the complainant answered “ I have not made any question with regard to the Bed Head Ticket’ and in response to query nos.19 to 22 as to how long the patient was suffering before admission to Belle Vue Nursing Home and why did she not consult urologist or cardiologist at any earlier stage which would have helped to pick up the disease at early stage, her answer as “All the records are with the Doctor and how can I say the same right now’? and in respect of question no.27 as to why did she suppress the verdict of West Bengal Medical Council before the Hon’ble Forum. Her answer was – “Not a fact which is wholly untrue and untrue to the knowledge of the complainant. Th e complainant filed the instantg complaint before the Hon’ble Forum after about three months from the said date of the order passed by the West Bengal Medical Council. This is a deliberate and willful suppression of very import and vital fact and it appears to this Forum.
In answer to question nos.49 to 51 as to whether she was aware of the fact that her father was suffering from ADENOCARCINONEA type of cancer as recorded by oncologist in the Bed Head Ticket, while her so-called expert misinterpreted as ADENOMA (not cancerous condition with an entirely different prognosis). She responded – “I have been never denied anything which is on record”.
We further find from the record that in response to question no.55 to the effect that Dr. Ajoy Kumar Gupta has been found guilty of professional misconduct, the complainant answered that the same was required to be proved and the materials on record show that Dr. Ajoy Kumar Gupta was prima facie guilty of in respect of professional conduct and was warned.
It appears to this Forum that the complaint filed by the complainant is based on the opinion of Dr. Ajoy Kumar Gupta who by any standard cannot be treated as an expert as per Sec 45 of the Indian Evidence Act or he has no expertise in the field of Oncology.
Record shows that West Bengal Medical Council in the reasoned order found Dr. Ajoy Gupta (Forensic Medicine Expert) guilty for offering expert opinion without any postmortem examination and not even consulting the experts in Gynaecology and Sinology and warned Dr. Gupta for professional misconduct. Dr. Ajoy Gupta’s expert opinion cannot be considered as an expert opin ion and we find that complaint has been filed on the basis of that opinion and as such, we are of the opinion that the complaint has no basis at all.
Complain ant has to satisfy this ingredients before he can claim damages for medical negligence of the doctors. Kind attention is drawn to a case reported in 2007 (2) SCC (L&S) 1 para 20 = 2007 (3) LLN 0 para 20.
The burden of proof to establish casual connection between breach of duty and the injury suffered lies on the complainant. That the injury must be sufficiently proximate to medical practitioners breach of duty. Kind attention is drawn to case reported in 2009 (7) SCC P.330 Para 23.
Mere averments in t he complaint is to be proved by cogent evidence and the complainant is obliged to provide facta probanda as well as facta probancia, attention is drawn of this Hon’ble Forum as envisaged in case reported in 2009 (7) SCC 130.
Cause of death as it appears from the record we find that Immediate cause – (a) Matastatic liver disease (due to or as a consequence of); Antecedent cause – (b) Space occupying lesion of lung (due to or as a consequence of), (c) Sepsis; Manner of death – Natural.
Dr. Ajoy Gupta a non-clinical is neither an expert in Oncology nor in Urology and as such, his opinion as solicited by the complainant cannot be treated in law as an expert opinion.
Hon’ble Apex Court has clarified the whole position pertaining to expert. Reference may be made to the case of State of H.P. vs. Jailal & Ors. [1999 (7) SCC 280] wherein it has held as follows - “An Expert witness is one who has made the subject upon which he speaks a matter of particular study, practice of observation and he must have a special knowledge on the subject” and in the case of Ramesh Chandra Agarwal vs. Regency Hospital Ltd. & Ors. [2009 (9) SCC 709].
Dr. Ajoy Gupta has no special study of the subject or special experience of the skilled or adequate knowledge of Oncology or Urology. He is a doctor of forensic medicine. Forensic medicine strictly speaking should relate to examination of living body. Autopsy work is more correctly referred as foreign sic pathology. Consequently, the complaint based on the opinion of Dr. Ajoy Gupta cannot have any value or validity and the complaint of the face of record is unsustainable.
On the other hand, on behalf of o.p. no.2, opinion of Dr. Goutam Bhattacherjee who is the head of the department of Radiotherapy Cancer Centre Welfare Home and Research Institute has been submitted.
The material portion of the opinion reads as follows – ‘I am of the firm opinion that there has been no negligence or improper judgment in diagnosis and subsequent management of this patient.
Cancer specialist Dr. Chanchal Goswami suggested it as cancer lung with liver metastasis which was in cormity with the opinion given by Prof. Dr. Anup Majumder. He also mentioned about urosepsis.
The case reported in 2009 (7) SCC 130 which reads as follows – “A mere averment in a complaint which is denied by the other side can, by no stretch of imagination be said to be evidence by which the case of the complainant can beside to be proved. It is the obligation of the complainant to provide the facta probanda as well as facts probantia”. In the instant case, the pleadings and the particulars furnished in the complainant is hopelessly insufficient to show any negligence on the part of o.p. no.2 in absence of necessary pleadings and particu lars, the complainant is liable to be dismissed.
The burden of proof to establish casual connection between breach of duty and the injury suffered lies on the complainant. That the injury must be sufficiently proximate to medical practitioners breach of duty. Kind attention is drawn to case reported in 2009 (7) SCC P.330 Para 23.
Hon’ble Supreme Court has further held that in order to bring the evidence of an witness as that of an expert, it is to be shown that he has made a special study of the subject and has acquired a special knowledge of the subject reported in AIR 2010 SC 806 paras 11 and 13.
Dr. Gupta is not qualified in the discipline of Oncology and Urology. So he cannot be said to be an Expert u/s 45 of the Indian Evidence Act.
Complainant alleged in the petition of complaint that patient was kept waiting for a long period at the time of FNAC test in suffocative state of condition etc. and she heard for her father and this statement is hearsay evidence and the person for whom she heard is no more and such hearsay evidence is no evidence and is not admissible.
Patient was examined by Dr. Amal Bhattacharya on on 1.6.07 and he advised the patient for admission in Mediview Nursing Home but patient got himself admitted in o.p. no.1 clinic with a severely debilitated state of health condition was prescribed antibiotic and cough syrup and said doctor has not been impleaded as proforma o.p. in this case.
Dr. Ajoy Gupta cannot be said as an expert as oncologist or urologist u/s 45 of Indian Evidence Act as he does not have expertise in those fields as an expert, although entire complaint based on the basis of the report of Dr. Ajoy Gupta. That apart, petition of complaint has not been substantiated and proved by the complainant by adducing cogent evidence in the manner and form it ought to have been adduced as per providence of Indian Evidence Act and the evidence of the complainant in support of the petition of complaint cannot be considered as evidence at all and in result we are left to hold that complainant has failed to prove her case for want of substantial and adequate evidence acceptable to this Forum. That apart, Dr. Ajoy Gupta has not deposed in this case and o.ps. did not get any scope to cross examine his opinion / statement and this is highly fatal to the case of the complainant when in particular entire petition of complaint rests upon the opinion of Dr. Ajoy Gupta, No other expert has come to depose to support the case of the complainant.
All diligent efforts were given by o.p. no.1 and o.p. no.2 and his fellow team doctors extending all sorts of skilful endeavour for every betterment so far as the treatment of the patient is concerned and we do not find any lapse / negligencies / deficiencies on their part as it is apparent from the materials on record and Bed Head Tickets in particular.
Decisions put for word by ld lawyer on behalf of complainant are not applicable in this case in view of the facts and circumstances disclosed on record 2013 (1) CPR 193 NC, 2010(4) CPR 1, and 2010 (4) CPR 13.
Decisions referred to by o.p. no.1 and o.p. no.2 are applicable in this case in the context of the facts and circumstances disclosed on record and we rely upon these decisions while arriving at a decision 2007 (3) LLN 69 in the Supreme Court of India, (2009) 7 Supreme Court cases 130, (2009) 7 Supreme Court cases 330, (1999) 7 Supreme Court cases 280 and (2009) 9 Supreme Court cases 709, and AIR 2010 SC 806 para 11 and 13.
Bed Head Tickets and other materials on record reveal that patient an 84 years old man was admitted with bedsore on his back and cancer was diagnosed within 2-3 days and it had spread all over and it was terminal illness and medical team examined 2/3 times a day and all supportive / arrangement and standard care was given and he was examined by two specialist Oncologists who treated the patient and so far as treatment of sepsis is concerned standard care was offered to this patient without loss of time.
In view of the findings above and on careful scrutiny of the entire materials on record we hold that complainant has failed to substantiate and prove her case based on the petition of complaint and complainant is not entitled to relief.
Hence, ordered,
Instant complaint case no.210/2009 stands dismissed on contest without cost.
Supply certified copy of this order to the parties free of cost.
