SRI SHYAMAL KUMAR GHOSH, MEMBER

1. The instant consumer case has been instituted by the complainant against the opposite parties praying for compensation and litigation cost for medical negligence on the part of opposite parties hospital and doctor.
2. The brief facts of the case are that the child-daughter (Srijoni Mazumder) of the complainant/petitioner was admitted on 22/11/2012 at about 4.00 PM at op no – 1/hospital and she was admitted at the said hospital under care of the opposite party no – 2/doctor. The op – 2 examined her and advised for some clinical test including USG. Thereafter the op-2/doctor pushed an injection in order to reduce the pain in abdomen of patient Srijoni Mazumder. On 23/11/2012 at about 12.45 AM the complainant/petitioner got a phone call from his daughter and his daughter stated that she did not get any proper response from the opposite parties as she was suffering from unbearable pain in abdomen at that time. After getting the said phone call from his daughter, the complainant/petitioner made a contact with the concerned hospital and informed the above event. But unfortunately, the hospital authority intentionally removed the bed side bell. Thereafter, the patient/daughter informed the same to her father forthwith. After receiving the said call from his daughter, the complainant made several conversations with the concerned hospital, but the staffs of the said hospital warned the complainant/petitioner by saying “not to disturb further till morning”.  The complainant/petitioner got further phone call from the patient/daughter at about 4 AM and it was informed that the patient could not bear severe pain in lower abdomen. The event was informed to the RMO. On 23/11/2012 at about 6 AM the complainant and his wife rushed to the hospital and enquired the matter. On enquiry the hospital authority replied that the pain killer injection was already administered to the patient. On 23/11/2012 at about 7.00 AM the complainant/petitioner called Dr. Archana Sinha, the opposite party no – 2 herein, and made a request for attending the patient and also for immediate treatment. But she did not bother to attend the patient and told that she had no time to attend the patient before 3 PM. Under such circumstances, the complainant/petitioner asked for releasing the patient as soon as possible and to that effect the hospital authority discharged the patient on 23/11/2012 and issued a bill amounting to Rs. 18,692/-. The complainant paid the said bill and took the patient from the said hospital. The bill was very inflated and arbitrary. After admission of the patient, the opposite parties did not take proper care of the patient causing gross negligence and deficiency in service on the part of the ops/hospital and doctor. Having no other alternative the complainant/petitioner knocked at the door of the State Commission for getting proper relief/reliefs as prayed for.
3. The opposite party no – 1 Desun hospital contested this case by filing written version stating inter alia that the father of the patient is not a consumer. At the time of filing of the instant case, the daughter was not minor. She was the age of 18 years at the time of filing of the instant case. The complainant did not disclose any alleged damage inflicted upon the patient. Moreover the instant petition of complaint was filed after two years from the date of cause of action. The patient viz. Srijoni Mazumdar was admitted on 22/11/2012 at about 4 PM at the op-1/hospital under op-2/doctor. The patient was suffering from pain in lower abdomen since morning. After admission, the proper care was provided to her and she was examined by emergency doctors. Finally, she was admitted in the said hospital under op – 2/doctor who was a gynaecologist. Upon admission, necessary investigation was done. The patient was administered oral and inject able medicines in order to provide relief to the patient. She had a problem of anxiety and to that effect psychological support was given by the nursing staffs of the concerned hospital. On 23/11/2012 the patient was referred to gastroenterologist and advised for surgical intervention. The complainant refused to give consent for surgical intervention as noted in the treatment record. Thereafter, by executing DORB (discharged on own risk bond) the complainant/petitioner got the patient released from the said hospital in the morning of the same day. At this stage there was no chance on the part of doctors of the said hospital to provide treatment to the patient due to her early release on risk bond from the said hospital. From the very beginning the patient was under the supervision of residential medical officer, doctors on duty and the nursing staffs used to make round the said ward at night. The hospital authority issued a bill which was very appropriate, justified, proper and reasonable. There is no question of inflated bill. The op no – 1 also argued that the complainant did not make any prayer for independent medical expert through this Commission in order to prove medical negligence on the part of the opposite party no – 1/hospital. There is no negligence or deficiency in service on the part of op no – 1/hospital and accordingly the op no – 1 prayed for dismissal of consumer complaint with cost.
4. The order being no – 18 dated 09/06/2017 clearly reveals that complainant and OP no – 1 both were present through their Ld. Advocates. None appeared on behalf of the OP No- 2. That day was fixed for filing written version by the OP No – 2. But no written version was forthcoming in spite of having more than several opportunities. Therefore the case was fixed for ex-parte against the OP No – 2.
5. In course of hearing the ld counsel appearing for the complainant/petitioner argued that the opposite parties/hospital and doctor did not provide proper care to the patient when the patient was suffering from severe abdominal pain. Even on the same date at about 7 AM when the complainant/petitioner called for the opposite party no – 2/doctor and requested the op-2/doctor to attend the patient immediately, the op no – 2/doctor did not bother to take any immediate steps in order to provide proper treatment to the patient. Rather the op no – 2/doctor stated that she would not be able to attend the patient before 3 PM. Be it mentioned here that the patient was admitted at the said hospital under care of the op – 2/doctor. The aforementioned event clearly indicates gross negligence and deficiency in service on the part of them.
6. In course of hearing the ld. counsel appearing for the opposite party no-1 argued that they have followed all medical protocol and formalities till the discharge of the patient. They have also prepared genuine and justified bill and as such there is no question of inflated bill. The complainant/petitioner took away the patient from the said hospital on risk bond (DORB) without giving any opportunity for providing treatment to the patient which is clearly revealed from the discharge certificate. Hence there is no gross negligence or deficiency in service on the part of the Op no – 1/Desun hospital. Accordingly the OP – 1 prayed for dismissal of the petition of complaint with exemplary cost.         
7. We have heard the ld. advocate for the complainant and OP no-1 at length and in full.
8. We have also perused the relevant documents and papers carefully.
9. At the time of final hearing opposite party no-2/doctor was absent despite repeated call.
10. Hearing was concluded.
11.  At first it should be decided that whether the complainant/petitioner comes well within the purview of the definition of the ‘Consumer’ as per Consumer Protection Act 1986 or not. It was argued by the op no – 1 that the patient viz. Srijoni Mazumder herself was able to file the instant consumer case instead of her father as the patient already attained majority. But in the instant case the patient’s father viz. Satirtha Kumar Mazumder filed the said case before the Commission. So the father does not come well within the purview of the definition of the consumer as per C.P. Act 1986.  Regarding this submission we can safely rely upon INDIAN MEDICAL ASSOCIATION VS V.P. SANTHA AND OTHERS REPORTED IN AIR 1996 SUPREME COURT 550 IN CIVIL APPEAL NO-688 OF 1993 WHEREIN THE HON’BLE SUPREME COURT HELD THAT THE BENEFICIARY OF ANY GOODS OR SERVICE IS ALSO A “CONSUMER”. In the instant case the father of the patient filed the instant consumer case before this Commission as a status of ‘beneficiary’ and as such we hold that there is no such wrong, error, mistake or any illegality in filing the instant consumer case at the behest of the present complainant/petitioner. The first point is thus decided as per above observations.
12.  Secondly it should be decided that whether the petition of complaint was filed within the 2 years from the date of cause of action or not. The record reveals that the discharge certificate was issued by Desun Hospital on 23/11/2012 and as such the petition of complaint should be filed within 22/11/2014. On perusal of the record it is clear to us that the instant case has been filed on 17/09/2014 which is within 2 years. So the allegation brought by the op no – 1 has no leg to stand upon. The second point is thus decided as per above observations.
13. It is admitted that the patient viz. Srijoni Mazumder was admitted at OP 1/ Desun Hospital on 22/11/2012 at 15.59 and discharged from the said hospital on 23/11/2012 on risk bond (DORB) at about 9.15 AM. At the time of discharge the said hospital provisionally diagnosed ‘Torsion of Ovaries’ and also endorsed detail  treatments which were already received by the patient. The whole events are clearly revealed from discharged certificate issued by Desun Hospital dated 23/11/2012 at about 9.15 AM.
14.  We have carefully perused the treatment sheets issued by op no-1/Desun Hospital and in pursuant to the treatment sheets it is apparent that the opposite party hospital maintained and followed proper and justified medically accepted protocol and formalities in order to reduce the abdominal pain of the patient by administering pain killer injections.
15.  Beside this it is the settled principle of law that the burden of proof lies upon the complainant/petitioner to show whether there was any negligence/fault or deficiency in service on the part of OPs  or not and to that effect independent expert opinion in the medical field should be prayed for through this Commission. But he did not file any interlocutory petition/application for seeking medical expert through this Commission.
16. Regarding non-functioning of bed side bell, it is our view that the simple error or omission on the part of hospital or doctors does not come within the ambit of medical negligence and in this respect we can safely rely upon  a remarkable decisions of Hon’ble Supreme Court in Chanda Rani Akhouri vs M.S. Methusethupathi decided on 20^th April 2022 wherein it was held that the simple lack of care, error of judgment or an accident, is not a proof of negligence on the part of a medical professional.  
17.  At this juncture one question has been arisen in our mind that whether there is any fault or negligence on the part of op no – 2/doctor viz Archana Sinha or not. The Admission Form/Consent Form issued by the concerned op no - 1/hospital clearly reveals that the patient was admitted under care of op-2/doctor viz. Archana Sinha. The fact is that the patient had been suffering from severe abdominal pain on and form 22/11/2012 to whole night of 23/11/2012 as it is evident that on 22/11/2012 at about 4.30 PM INJ DROTIN was administered to the patient. Thereafter on the self same date at about 8.40 PM INJ VOVERAN was administered and on 23/11/2012 at about 12.08 AM INJ FORTWIN was also administered to the patient by way of I/V fluid. It is fact that on 23/11/2012 at about 6 AM the complainant/petitioner along with his wife rushed to the hospital and enquired about the condition of the patient. The complainant/petitioner found that the hospital authority tried to save the patient by administering pain killer injection. Thereafter on the same date at about 7 AM (morning) the complainant/petitioner called the op no – 2/doctor for immediate attention but she did not bother to take any immediate steps or attention to the patient. Rather op no – 2 vehemently stated that she would not be able to attend the patient before 3 PM. Under such compelling situation and for the sake of saving the life of the patient, the complainant/petitioner was bound to take away the patient from the concerned hospital on DORB.
18.  It is very common view of the pupil of the society that the patient always comes to the hospital with a hope of getting proper treatment specially for emergency matter but   when the doctor of the said hospital fails   to provide any treatment with standard care to the patient, this situation may automatically create a very unhappy circumstances causing irreparable loss and injury to the patient and even  it may also cause the death of the patient. In the instant case the matter was informed the doctor and at this juncture it is our view that the op no – 2/doctor should come forthwith to attend the patient without any further delay. Actually it is the duty of the doctor/doctors to provide standard care to the patient on and from  admission to discharge of the patient. But in the instant case we simply find that the doctor did not pay any heed in respect of providing proper care to the patient.
19. In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor.
20. Be it mentioned here that the op-2 did not file any written version against the petition of complaint filed by the complainant/petitioner. Even in course of final hearing she did not come before the Commission. Under such situation it is very clear to us that the petition of complaint remains unchallenged. During the pendency of the said case the op-2/doctor kept mum from the very beginning and as such there is no bar to hold that the mere silence on the part of op-2/doctor causes clear admission of the allegations stated in the petition of complaint.
21.  We have carefully perused the treatment sheet dated 23/11/2012 wherefrom it appears that at about 09.00 AM the patient party refused for OT and wanted to take the patient on DORB. At this juncture, a question comes in our mind that whether the concerned doctor viz. Dr. A. Sinha, op no – 2 herein made any advice for OT of the patient on previous occasion or not. After carefully perusal of the treatment sheet dated 23/11/2012 at about 08.00 AM, it is very clear to us that there was no such advice for OT of the patient except only reference to Gastroenterologist. So, at this stage we find some clear anomalies reflected in the treatment sheet issued by op no - 1/hospital.   
22.  It can be concluded that the opposite party no – 1/hospital tried their best to save the patient and in pursuant to the Bolam Test, the opposite party no – 1/hospital maintained everything which is medically accepted method/procedure but there is no hesitation to hold that the performance of the op – 2 / doctor Archana Sinha is not so happy and satisfactory to us and due to carelessness on the part of the op – 2/doctor the complainant/petitioner was compelled to take away the patient from the op no – 1 / hospital on DORB. 

Considering all aspects from all angles and keeping in mind the present position of law and regard being had to the submissions of complainant and op no - 1, we are of the opinion that the instant consumer case stands allowed ex-parte against the op no – 2/doctor viz. Dr. Archana Sinha with cost and dismissed against the op no – 1/desun hospital without any order as to cost. Hence,

                                                                    ORDERD

That the opposite party no-2/doctor is hereby directed to pay compensation of Rs. 1,00,000/- (one lakh only) and also to pay cost of Rs. 10,000/- (ten thousand only) to the complainant within 45 days from the date of this order in default the whole awarded amount shall carry interest @ 8% pa till full realization.

The complainant is at liberty to put the order in execution in case of non-compliance of the said order by the opposite party no – 2/doctor.

The consumer case is thus disposed of.

Note accordingly.

Let a copy of this order be transmitted to the opposite party no – 2/doctor forthwith for compliance and necessary action.

Office to do needful.