Order No. 25 Dt. 05.12.2007
The complainant’s case, in brief, is that the petitioner was admitted to Malda Nursing Home for operation under Dr. D.N. Majumder. After the operation of acute pyogenic appendicitis he got discharged on 10.04.2006 from the nursing home with an advice to take medicines and injections etc. But again on 13.04.2006 he was advised for clinical test. The complainant was again admitted in Malda Sadar Hospital on advice of O.P. on 21.04.2006 and discharged from hospital on 28.04.2006. Accordingly on 24.07.2006 also the complainant was under treatment of O.P. and the post operative problems are still going on. Hence this case praying reliefs as per plaint.
O.P. has filed written version denying all material allegations challenging therein that the complaint is not maintainable, contents are false and frivolous, misconceived and speculative one. The O.P. has also denied that the complainant visited his chamber of Hospital Quarter and has denied the admission of the petitioner at Malda Nursing Home on 05.04.2004 under the present O.P. with the complaint of acute pyogenic appendicitis and under such circumstances prayer is for dismissal of the complaint.
On pleadings of both parties the following points deserve discussion for effective disposal of the case.
- Whether petitioner is a ‘Consumer’?
Contd.P/2…
P – 2
- Whether the O.P. is negligent in rendering service to the complainant?
- Whether the complainant is entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Point No.1
‘Consumer’ means any person who hires any services for consideration which is made available to potential users. In the instant case the petitioner was under treatment and went operation under Dr. D.N. Majumder which is evident from the documents filed by the petitioner.
Thus, having regard to the facts and circumstances of the case, there can be no dispute that the complainant hired the service of Dr. D.N. Majumder on payment of fees and other charges.
Thus, the petitioner has become ‘Consumer’ within the perview of Consumer Protection Act which disposes of the present point in the affirmative.
Point No. 2
Specific complaint, as has been made out in the petition, is that he hired the services of the O.P. on payment of consideration. Any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance of service undertaken to be performed amounts to deficiency.
Prior to the appreciation of facts it has to be seen what is the ‘deficiency in medical service’ and the ‘test of standard medical care’ and in the case it can be held that a doctor is guilty of medical negligence and other allied matters can be fitted in the line of ratios and the provisions of Act. The term ‘Service’ is provided in Section 2(O) of the Act and the word ‘deficiency’ has been defined in Sec 2(i)(g).
Now, it is already stated in Indian Medical Association vs. V.P.Santha (1995) 6 Sec 651 that the person obtaining the medical service after payment is a ‘consumer’ within the meaning of the act and is covered under the definition of the term ‘service’. The term
Cotnd.P/3…
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‘deficiency’ for the purpose of this case means any fault or imperfection or of a shortcoming in view of contract of service undertaken by Dr. D.N. Majumder in the above noted case. Our Apex Court has been pleased to observe that the doctor has the duty of care in deciding whether to undertake the case decided what treatment to do and duty of care in the administration of treatment. The doctor must bring to his task a reasonable degree of skill and knowledge, must exercise a reasonable degree of care. He need not possess the highest expert and skill. It is sufficient if he exercises skill of an ordinary competent man exercising the particular act. It has also been observed that breach of any of the duties referred to above gives right of action for negligence to the patient. The practitioner must bring to his task reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Such a doctor should be found guilty when he has fallen short of the standard of reasonable care when he was observing censor vide Dr. Laxman B Joshi Vs. Dr. Trimbak Bapu Gadbole AIR 1969 SC 128.
All courts would indeed be slow in attributing negligence on part of a doctor if he has performed his duties to the best of his ability and with due care and caution ……………………in cases where the doctor acts mercilessly and in a manner which is not expected of a medical practitioner, then in such a case an action of Torts is maintainable. This has also been observed by our Apex Court appearing in AIR 1996 SC 2377.
Negligence must be established and not presumed-the breach of duty may be presumed either by not doing something as a reasonable man under given circumstances would do, by doing some act which a reasonable prudent man would not do.
This Forum has gone into the oral testimony of PW-1 who is the petitioner himself and the doctor under whom the PW. – 1 underwent operation. This Forum has also made careful scrutiny of the documentary evidences filed by him including the B.H.T. received from the Superintendent, Malda Sadar Hospital. It appears from the testimony, O.P. himself has admitted as O.P.W. – 1 that the petitioner was admitted in Malda Nursing Home on 05.04.2006 and he has duly signed the discharge certificate dated 10.04.2006 and the discharge certificate discloses the diagnosis and treatment as Acute Pyogenic Appendicitis, and pyoperitoneum was removed from the abdomen of the petitioner and has stated that he has rendered service to the best of his knowledge and there was no negligence on his part.
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This Forum has made scrutiny of the exhibits which manifest different kinds of test on 05.04.2006 vide Ext- 5 series but that there was different tests undergone by the petitioner and as it appears from the testimony of the petitioner as well as the doctor himself but results of these tests appear to be conspicuously absent and all such cases it cannot be understood on the basis of which documents referred to hereinabove the doctor came to the conclusion that there was immediate necessity of operation of the present petitioner in as much as all the tests were undertaken on 05.04.2006 and on the selfsame date the patient had to undergo appendicitis operation. The discharge certificate (Ext.6) dated 10.04.2006 manifests all the post operative tests to be taken by the patient but was not advised showing therein the exact date the patient was required to attend him once again. The said Ext.6 further discloses that there was definitely some complaint of the petitioner for which he had no other alternative but to attend the doctor on 13.04.2006 as it apparently appears from Ext. itself. This suo-moto appearance of the petitioner manifests that some advice was given by the O.P. in the first page of Ext.6 itself. But the diagnosis (record on examination) on the basis of which the doctor prescribed the medicines appear to be conspicuously absent and this document thus, cannot but be treated showing apparent negligence on the part of the doctor himself.
The discharge certificate of the petitioner issued by the District Hospital Malda (Ext.8) clearly shows the present petitioner had to take admission there on 21.04.2006 and under present O.P. himself wherein final diagnosis has been shown as F.U. case of appendicectomy; by the word F U it does not carry any other meaning than follow up case. This being the position and that the patient was admitted under doctor D.N. Majumder even after following advice of the O.P. as was given to the present petitioner on 13.04.2006, it is not understandable why the petitioner was admitted with the complaint of chest pain? Had it been so, then how could he be admitted under the present O.P. who is a surgeon posted at Malda as it appears from the testimony of the O.P. himself the B.H.T. of Malda Nursing Home clearly manifests that the present petitioner was discharged with the final diagnosis with the remark F.U. case appendicectomy with pain (muscular pain) and he had to stay there from 21.04.2007 to 28.04.2007.
Now the question arises if the case of the petitioner is for follow up case of appendicectomy which has been noted in the discharge certificate of the B.H.T. issued by the Hospital and also the discharge certificate (Ext.8), then it cannot but be said that the petitioner did not recover from
Contd.P/5…..
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his illness for which he had to undergone operation of appendicitis under the present O.P.
Normally, wound after operation in any case remains not later than 8 days of the operation and the patient underwent operation on 05.04.2006 but even the B.H.T. of the hospital dated 21.04.2006 indicates ‘wound heeling’ and visit of Dr. D.N. Majumder dated 23.04.2006 also indicates ‘appendicectomy wound heeling’. It is not understandable how a ‘wound’ after operation will continue to remain even after completion of 18 days and it is also not understandable when there was wound heeling why no medicine and other device like dressing of the wound does not appear on 23.04.2006 and subsequently after 28.04.2006. The observation dated 28.04.2006 of the O.P. himself as noted that the patient (herein the petitioner himself) was discharged on satisfactory condition but how the O.P. gained satisfaction of the patient and on what basis of the observation appear to be conspicuously absent when he visited the patient on 28.04.2006. That apart, Ext.6, the discharge certificate issued by Malda Nursing Home at page – 2 reveals that the present petitioner had to attend the present O.P. even on 11.05.2006 when use of one tablet was advised for 7 days. This also cannot but help the Forum to come to the conclusion that the O.P. was negligent while discharging the present petitioner from the hospital. Had it not been so why the petitioner was required to attend him on 11.05.2006.
This Forum has also taken note of prescription which has been issued by dr. D.N. Majumder in respect of the present petitioner on 24.07.2006. This has been marked Ext.9 in this case which reveals that the petitioner was advised hot compress and same tablet advised by the O.P. on 11.05.2006 was repeated for a period of 9 days more vide Ext.9. It further appears that through Ext.9 the petitioner was advised to attend first floor O.T. All these acts and deeds on the part of the O.P. cannot but be described as negligence.
All these simply disclose that no monitoring was at all done and the present petitioner has been quite ignored and what was expected minimum from Dr. D.N. Majumder was to undergo the standard of reasonable care which has not been done at all.
Thus having regard to the facts and circumstances of the case this Forum is fortified with the observation of our Apex Court wherein the Hon’ble Supreme Court has been pleased to hold on negligence is ‘thus writ at large in this case’.
Contd.P/6….
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This point is thus disposed of.
Point No.3
Accordingly, the case succeeds.
Now coming to the quantum of compensation the complainant is entitled to get Rs.25,000/- towards medical expenses and Rs.5,000/- towards harassment and mental agony and also Rs.2000/- towards litigation cost which the Forum thinks to be just in the facts and circumstances of the case.
Proper fees have been paid.
Hence, ordered,
that the Malda D.F. Case No.32/2007 succeeds in part on contest against Dr. D.N. Majumder (The O.P.).
The petitioner do get compensation of Rs.25,000/- (Rupees twenty five thousand) only towards medical expenses and Rs.5000/- towards harassment and mental agony and Rs.2000/- towards litigation cost.
The O.P. do pay the aforesaid quantum of money within 4 weeks from the date of receipt of order, failing which, the O.P. will be liable to pay interest @10% per annum from the date of this order till the date of realization, apart from the remedy available under the consumer Protection Act. under Sec.27 of the Act.
Let a copy of this order be given to both the parties free of cost.
