IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/26/2019.
Date of Filing: Date of Admission: Date of Disposal:
26.02.19 19.03.19 22.10.19
Complainant: Mamataj Begum,
W/o Md. Khalil Biswas
Vill-Laskarpur, PS-Brindabanpur,
PS-Domkal, Dist-Murshidabad,
Pin-742406
-Vs-
Opposite Party: 1. Centre-in-charge,
Susrut Eye Foundation & Research Centre
HB-36/A/1, Sector III
Salt Lake City, Kolkata,
Pin-700106
2. Centre-in-charge,
Susrut Eye Foundation & Research Centre
25/1, Kalikapur Road, PO&PS-Berhampore,
Dist-Murshidabad,
Pin-742101
Agent/Advocate for the Complainant : Sri. Subhanjan Sengupta.
Agent/Advocate for the Opposite Party : None.
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Smt. Aloka Bandyopadhyay, Member.
One Mamataj Begum (here in after referred to as the Complainant) filed the case against the Centre-in-charge, Susrut Eye Foundation & Research Centre & another (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The complainant being a housewife having a blurred vision was taken to doctors at OP No.2 where she was advised for cataract operation and Complainant made payment as per advice of OP No.2 and had undergone all the necessary tests. That on 12.02.17 cataract operation was performed on her left eye and on and from that very date the Complainant felt severe pain on her operated left eye and it continued. Thereafter, the OP No.2 referred the Complainant to the OP No.1 and on 16.02.17 the OP No.1 informed the Complainant that her operated left eye got some severe infection and the Complainant had to undergo another operation etc. Accordingly on 28.02.17, the OP No.1 informed the Complainant that her cornea was changed but from the same date the Complainant was suffering in her left eye due to severe pain for infection as stated by the doctors of OP No.1 and they gave an opinion for removal of the entire eye to give relief from her pain. Thereafter, the entire left eye of the Complainant was removed and from that date the normal life of the Complainant has shattered and she is leading her life by depending on other and she has incurred huge money for her treatment which is due to negligent act of the OPs and the Complainant approached the OPs for proper redress but the OPs denied those.
Finding no other alternative, the Complainant filed the instant case for appropriate relief as mentioned in the prayer of the petition of the Complainant.
The OPs after due service of the notice did not turn up. So, the case has been proceeded ex-parte against them.
On the basis of the above version the following points are framed for proper adjudication of the case :
Points for consideration
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Is the Complainant entitled to get any relief, as prayed for?
Decision with reasons
The Ld. Advocate for the Complainant submits that the Complainant is a consumer as she hired services of the OPs for consideration.
On going through the complaint, written version and other materials on record and on a careful consideration over the submission of Complainant, we find that the Complainant is a consumer in terms of section 2 (I )(d) (ii) of the C.P.Act, 1986 as she hired services of the OPs for consideration.
Undoubtedly, the Complainant took admission in Susrut Eye Foundation & Research Centre on 12.02.17 (OP No.2) for Phaco with Indian Foldable hydrophobic Lens as per the advice of the doctor of the said eye foundation for her blurred vision. From the next day of release the Complainant felt several pain on her operated left eye. On 15.02.17 the Complainant contacted with the said centre and the doctor advised for Rele Intravitreal Inj Vance+CEFA+AMPHO-B (Left) and the doctor referred the patient for Susrut Eye Foundation and Research Centre, Kolkata Unit, (OP No.1) and informed the Complainant that the eye was totally infected. On 16.02.17, the OP No.1 started treatment and after 1 week of admission under OP No.1 the doctor suggested some medicines and released her on 23.02.17 (Annexure-6&7) but on 28.02.17 the Complainant compelled to took admission under the OP No.1 for infection and pain in her left eye (Annexure-8). On 02.03.17 the doctor performed evisceration without implant (Left). On 03.03.17 the OP No. 1 informed the patient party that the infection was heavy high as the cornea replacement was unsuccessful, accordingly she was operated by the doctor as an emergency and the type of surgery was Oculoplasty-Evisceration (Excluding Implant) Un LA- Infiltration (Annexure-10). As the entire left eye of the Complainant was removed and from that date the normal life of the Complainant has shattered and she is leading her life by depending on others.
After service of the notice the OPs did not turn up to controvert the plea of the Complainant for the best reasons known to them.
Considering the facts and circumstances of the case and the documents filed before us and the argument advanced by the Ld. Advocate of the Complainant, we are of the view that we have no alternative but to accept the plea of the Complainant as the case is ex-parte. The OPs also did not bother to appear before CA&FBP even after due service of notice.
It is a fit case to place reliance on the judgment of Savita Garg Vs. Director, national Heart Institute (2004) 8 SCC 56 2004(8) Supreme 58, in which the Hon’ble Supreme Court has laid down the principle that the onus is on the Hospital to explain as to why the situation had occurred. In the instant case, the onus shifts on the Hospital and treating Doctor to explain as to how infection had set in and the reason for the lifting of eyes of a patient who went for only phaco surgery.
Failure to act in accordance with medical standards in vague and failure to exercise due care and diligence are generally deemed to constitute medical negligence. A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him/her. If there is a breach of that duty and if it results to injury or damage, the doctor will be held liable. Having regard to what the Hon’ble Supreme Court has laid down about the ‘Duty of Care’ to be followed by a medical professional viewed from any angle, it con not be construed that ‘ Duty of Care’ of a treating doctor ends with the ‘Surgery’.
In Dharma Pal Vs. Oriental Insurance Co. Ltd. and Ors, 2019 (1) CRP 63 (NC) the Hon’ble National Commission hold that when there is practical and circumstantial evidence to show negligence on the part of doctors in treating the patient, the Hospital and the doctors are liable to pay the compensation.
The Principles of what constitute medical negligence are now well established by number of judgments by Hon’ble National Commission and also the Hon’ble Supreme Court of India, including Jacob Mathew Vs. State of Punjab (2005) SCC (1) and in Indian Medical Association Vs. V.P. Santhra (1995) 6 SCC 651. One of the Principle is that a medical practitioner expected to exercise a reasonable degree of care and caution in treating a patient and must have a reasonable degree of skill and knowledge. In the instant case, it is very clear from the facts stated by the Complainant and the documents filed by the Complainant that a reasonable degree of care was not taken by the OP No.2 as because the very next day of the first operation the Complainant felt pain in her left eye. And the OP No.2 should take the case seriously but he treated the Complainant in a very casual manner. Such a patient needs hospitalization for sustained and constant care and proper investigation for removal of pain in the operated eye but the OP No.1 only suggested some medicines and did not took proper care. The OP No.1 also did not took proper care after admission of the Complainant on 17.02.17 and he discharged the patient on 23.02.17 by suggesting some medicine without taking any initiative to cure the infection properly and for that reason the complainant was compelled to take admission before op2 for second time to get relief of her pain and Considering the facts, we are of the opinion that OPs are negligent in all points of treatment if proper care was taken by the OPs such incident like removal of the left eye may not occur and here lies the deficiency of service on the part of the OPs.
We find it a fit case to place reliance on the judgment of the Hon’ble Supreme Court V. Krishan Kumar Vs. State of Tamil Nadu and Ors. [2015 (9) SCC 388], where in the Hon’ble Apex Court has relied on the principle of restitution in integrum, wherein it was held that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering under gone and the liability that he/she would have to incur due to the disability caused by the event. In our considered opinion, the complainant is entitled to get compensation of Rs. five lakh for deficiency in service on the part of the OPs and she is also entitled to get Rs. one lakh for mental pain and agony.
Reasons for delay
The Case was filed on 26.02.19 and admitted on 19.03.19 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
Fees paid are correct.
In the result, the complaint case succeeds. Hence, it is
ORDERED
that the Consumer Complaint Case No. CC/26/2019 be and the same is allowed ex-parte against the OPs but without cost.
The OPs are jointly and severally directed to pay the compensation of Rs. 5,00,000/- to the Complainant.
The OPs are jointly and severally further directed to pay Rs. 1,00,000/- for mental pain and agony.
All the aforesaid orders must be complied within 45 days from the date of this order and in case of failure, it shall carry interest @ 8% per annum payable to the Complainant.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
Member
Member President.
