Ld Advocates are present. The law points are clarified. Judgement is ready and pronounced in open Commission in 8 pages 4 separate sheet of papers.
BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case are that the Complainants are nt inhabitants of above mentioned address within this Jurisdiction. The O.P. No.-1 is the Nursing Home and OP NO.2 is the Doctor who is attached with OP NO.1 Nursing Home. The Complainants and their family members are very poor and Complainant No.1 is a student. On 25.12.2020 when the Complainant No.1 was returning to his house from Digha by a Auto Rickshaw, on the way near Biswnathpur his vehicle suddenly met with an accident and he fell down and by said incident he received injury on his face, wrist and finger of hand ;due to such incident his bone was fractured and he suffered from pain in affected place and he was conscious, family members brought him to Mugberia Rural Hospital for his treatment. After first-aid treatment Mugberia Rural Hospital refer Complainant No.1 for better treatment. For better treatment Complainant No.2 brought Complainant No.1 and visited with O.P No.-1 Nursing home for treatment of Complainant No.1. Staff of O.P No.-1 and O.P. no.-2 examined Complainant No.1 and suggested for treatment as stitching on face injury. O.P No.-1 offered a package of Rs. 10,000/- for face repairing / treatment including O.T. Charge and all others charges. Also O.P -1 disclosed before the Complainant as well as family members that Swasthya Sathi card is acceptable by O.P. nursing home and all treatment they would complete by the scheme. The father of Complainant no-1 ie complainant No.-2 as well as Complainant No.-1 accepted said package of O.P No.-1 and Complainant No.-1 admitted at O.P No.-01 under treatment of O.P No.-2. The Complainant was interested for treatment under Swasthya Sathi scheme and gave the card relating to Swasthya Sathi but O.P No.-1 without use returned back the said card to the Complainant. It is a great regret that O.P No-1 used the word in place of diagnostic column RTA Polytrauma Alcoholic). Staff of O.P No.-1 intentionally had written in discharge summary “RTA_c/o facial injury / left hand injury patient was under alcohol influence. Staff of O.P No.-1 & O.P No.-2 stitched the injury of face. Complainant No.-2, paid the package money of treatment as per demand of O.P No.-l, thereafter Complainant No.-2, on 29.12.2020 met with the O.P No.-1 and discussed about the treatment of Complainant No.-1, at that time O.P No.-1 showed a list of account and demanded Rs. 68,595/- instead of package amount. The Complainant No.-2 raised objection against said wrong demand, when staff of O.Ps rearrange / adjust some money from his own thinking and demanded Rs 62,100/- plus medicine charges. Staff of O.P was created pressure to Complainant for deposit money as per their demand. The Complainants feel that the O.P No.-1 and his staff without any proper treatment of all injury passing the time also without any reason only for high billing purpose O.P No.-1 transfer the Complainant No.-1 at ICU and unnecessary put Oxygen and Oxymeter charges are totally false, also all charges are illegal, baseless. O.Ps intentionally did not use Sasthya Sathi card and without any information regarding charges, unnecessarily bill against the treatment. Also O.Ps without any proper treatment or advice to the Complainant regarding treatment of injury in hand, scapula, metacarpal stay in nursing home. On 30.12.2020 Complainant No.-2 demand total bills and treatment chart/ sheet from the O.P No.-1 but he did not give any bill and treatment sheet to Complainant , O.P No.-1 and his staff without giving bills by creating mental pressure upon the Complainants received Rs 69,000/- illegally instead of package money. The Complainant No.-2 was compelled to pay total amount also they discharged Complainant No.-1 in ill health (except all treatment). The Complainant No-2 at the time of receiving Complainant No.-1 from the nursing home tried to return some excess medicine to the medicine shop at that time as per instruction by O.P No.-1 one sister illegally took all medicine from the Complainant by snatching. The Complainant No-2 received Complainant No.-1 in ill health conditions on 30.12.2020 from the O.P nursing home and on that day and on 31.12.2020 visited Minimal Access Surgery Clinic Pvt. Ltd. (MAS Clinic and Hospital) at Tamluk said hospital adviced to operate Complainant No.-1 for his injury. Thereafter Complainant visited with New Vivekananda Nursing Home at Tamluk and disclosed the intention of treatment through Swasthya Sathi Scheme, said nursing home accepted the proposal and said New Vivekananda Nursing Home admitted Complainant No.1, on 03.01.2021 and after treatment/ operation of Complainant No.-1 discharged him on 5.01.2021. Total amount of treatment /operation and all others charges of Rs.-33,300/- were paid through Swasthya Sathi scheme. The Complainant several times met with O.P No.-1 and requested him for supplying all bills and treatment sheet but in vain. The Complainant also requested him to return 59,000/- excess money which he received illegally from Complainants but they did not return to the Complainant. OP after taking more money as well as illegal money from the Complainant and with ill health conditions discharge Complainant No.-1 from O.P Nursing Home. The Complainant No.-1 from 25.12.2020 to 30.12.2020 stayed without proper treatment except stitching ,O.Ps did not take care properly. When the Complainant No.-2 disclosed regarding bill before O.P no.-1, he misbehaved and avoided always the Complainant. For redressal the grievance of Complainant sent proposal to the Complainant but they did not pay any heed. The Complainant and his family members got harassed, misguided and neglected by OP members. OP members are liable for deficiency of service and neglect to discharge their duties and provide proper service. Owing to their negligence the Complainant no-1 suffered from serious physical problems and mental agony. Due to excess and illegal amount charge upon Complainant, suffered financial loss and damages. The cause of action arose of this case on and from 30.12.2020 and thereafter at the nursing home of O.P.no.-1 within your this Jurisdiction. Owing to unnecessary harassment, wrong treatment, deficiency of service/ and huge illegal expenses, the Complainants run with a lot of financial crisis, mental pain and agony. The other submission will be submitted at the time of hearing of the instant case/petition. In the aforesaid circumstances the complainants have been constrained to take the shelter of law. Under such circumstances, the complainants humbly pray the Commission may graciously be pleased to pass necessary order / orders: To give compensation of Rs. 1,00,000/- to the complainant for the negligence, deficiency of service, harassment and mental pain and agony etc. , to refund the money of Rs.59 000/- to Complainants, to pay the medical and others expenses of Rs. 33,000/-, for litigation cost of Rs. 5000/- , for other reliefs as Complainants are entitled to get as per law and equity.
Notices were served upon the ops. They contested the case by filing written version through their Ld Advocate. In the written version, they have contended inter alia that the instant claim application under consumer protection Act is not maintainable in its present form and in law. The application is bad for non-joinder and mis-joinder of necessary parties. It is stated that save and except the statements which are the matters on record all other statements as made in para No. 7 to 21 of the claim application are very much denied & disputed. No part of the claim application is to be deemed as admitted by the O.P. save & except the statements which are specifically admitted herein. It is a fact the patient (Complainant no.1) came to the O.P no.1 Nursing Home with history of road traffic accident which was happened around 8.30 p.m on 25/12/20 near Digha followed by he was taken to local hospital from where he was referred and brought here at 10.45 p.m on examination by Dr. Souvik Patra patient had multiple lacerated injury over face, lower eyelid, inner lip with presence of bleeding, with pain and abrasion of left hand shoulder region and during examination presence of alcohol smell was present and history was taken and patient revealed that he went to some picnic and consumed alcohol thereafter which on returning back he met with an accident and the whole examination part was documented by Dr. SouvikPatra himself. However, he was given all proper care immediately and necessary evolution was done. Dr. SouvikPatra himself spoke with his patient’s father about the condition of the patient and probable injuries and explained what are the necessary treatments were about to be given. At first he was given an option to take the patient to higher centre which he refused and told to do all necessary treatments as he and his family were nursing home’s old patients (Annex-10 and 11). He mentioned that he was financially not strong and asked to reconsider the amount so on sympathy ground ICU rate was reduced from 6,000 to 3,000 per day and all different expenses of cost, medicine, doctor charge necessary reports explained to him and for which he was agreed and signed the contract paper (Annex-1b). The patient was shifted to ICU and all necessary treatment and investigation was started, one next day he was asked for treatment under Swasthya Sathi scheme. It is stated that Monideepa Nursing Home is the highest Swasthya Sathi provider in free of cost in Purba Medinipur, but patient was under alcoholic influence and according to guideline under alcoholic influence patient was not covered under this scheme, (Annex-2), the same was countersigned by his father Mr. Buddhadev Das in the PAC form (Annex-4). According to the report of RTA case and injury report was sent to Tamluk Police Station with patient detail and signature of patient’s father after explaining to him properly (Annex-3). Thereafter the patient was taken to operation theatre complex and surgery was performed for his multiple injuries on face, eyelid, inner lip with that so he was evaluated to have fracture left 5th metacarpal with left scapula fracture for that an orthopedician opinion Dr. KousikPatra MS (Ortho) was taken and he was advised for surgery of metacarpal after patient stabilizes and swelling reduces and same was informed to patient party. The treatment was done to the patient who got recovered well and shifted to general bed and planned for orthopedic surgery but patient’s father wanted to discharge the patient take him to elsewhere and with his decision discharge on request was made and with his consent patient was discharged on request in stable condition on his liability against the medical advice (Annex-5). That he was asked to pay the remaining bill he started again problem and was creating chaos, on sympathy ground he spoke personally with the director of the Nursing Home Dr. Dhiraj Patra and he personally waved of Rs.8,000/- from total billing amount. The whole billing amount was made as per the admitting consent form and the breakup bill was handed over to Mr. Buddhadev Das and he received the bill with his own signature on 04.01.2021 (Annex-6). The Nursing Home (O.P. No.1) had provided very good service and homely atmosphere and there was no negligence in their service. It is a fact there was no negligence of treatment or wrong operation was done by O.P. No.2. The amount stated in para No. 26 was false, imaginary and excessive. There was no expert opinion provided by the Complainant that O.P. has committed negligence of treatment or wrong treatment. The complaint is baseless, misconceived, harassing ,devoid of merit, not maintainable and is liable to be dismissed.
Upon careful reading of the contentions made in the pleadings of rival parties following points for determination are framed.
Points for determination are:
1. Is the case maintainable in its present form and in law?
2. Are the Complainants entitled to the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for the sake of brevity and convenience.
We have carefully perused and assessed the complaint supported by affidavit of the complainant, written version filed by ops, evidence of both parties and other documents. We have anxiously considered the arguments advanced by the Ld counsel of rival parties. The WNA filed by the ops was also read line by line.
The Complainants have alleged that the ops have committed medical negligence and deficiency of service. The bundle of facts suggest that the case is maintainable in its present form and in law.
On evaluation of evidence it appears that the complainant in his Examination in- chief on affidavit paras-8,9,13,21, and 24 stated about the main a grievances. He deposed that for better treatment Complainant No.2 brought Complainant No.1 and visited with O.P No.-1 Nursing home for treatment of Complainant No.1. Staff of O.P No.-1 and O.P. no.-2 examined Complainant No.1 and suggested for treatment as stitching on face injury. O.P No.-1 offered a package of Rs. 10,000/- for face repairing / treatment including O.T. Charge and all others charges. Also O.P -1 disclosed before the Complainant as well as family members that Swasthya Sathi card is acceptable by O.P. nursing home and all treatment they would complete by the scheme. The father of Complainant no-1 ie complainant No.-2 as well as Complainant No.-1 accepted said package of O.P No.-1 and Complainant No.-1 admitted at O.P No.-01 under treatment of O.P No.-2. The Complainant was interested for treatment under Swasthya Sathi scheme and gave the card relating to Swasthya Sathi but O.P No.-1 without use returned back the said card to the Complainant. It is a great regret that O.P No-1 used the word in place of diagnostic column RTA Polytrauma Alcoholic). Staff of O.P No.-1 intentionally had written in discharge summary “RTA_c/o facial injury / left hand injury patient was under alcohol influence. the Complainants feel that the O.P No.-1 and his staff without any proper treatment of all injury passing the time also without any reason only for high billing purpose O.P No.-1 transfer the Complainant No.-1 at ICU and unnecessary put Oxygen and Oxymeter charges are totally false, also all charges are illegal, baseless. O.Ps intentionally did not use Sasthya Sathi card and without any information regarding charges, unnecessarily bill against the treatment. Also O.Ps without any proper treatment or advice to the Complainant regarding treatment of injury in hand, scapula, metacarpal stay in nursing home. The Complainant No.-1 from 25.12.2020 to 30.12.2020 stayed without proper treatment except stitching ,O.Ps did not take care properly.
The complainants have not filed any medical paper showing primary treatment and referral note by Mugberia Rural Hospital to establish that the note made by the ops in column-9 of Annexure -3 falsely, as the medical paper showing primary treatment and referral note by Mugberia Rural Hospital would contain the primary observation regarding the condition of the patient. When the OP found it as a case of RTA case ,injury report was sent to Tamluk Police Station with patient detail and signature of patient’s father after explaining to him properly (Annex-3) on27.10.2020.Annexure5 is the Discharge Summary on request. It reflects that the complainant -2 endorsed a note to the effect that he has got no grievances against ops; he further endorsed that patient is not willing for further treatment. In para-9 of reply to the questionnaire put by ops, complainants stated that complainant no-2 got discharge of the patient at his own discretion.
While considering negligence of a doctor one has to prove that action of a doctor is such that no other doctor of a reasonable prudence would do it. There is no cogent evidence on record to that effect on behalf of the complainant.. In absence of medical evidence commission of its own will lack expertise to come to conclusion, more particularly in case of present nature. Initial burden to be discharged by the complainant has not been met up. The complainant has not adduced any medical expert evidence in this case to substantiate its allegations against the ops.
In the case of Kusum Sharma vs Batra HospitalsI (2010)CPJ 29 (SC) = II (2010) SLT 73= (2010) 3 SCC 480 the Hon’ble Supreme Court held
“89. While deciding whether the medical professional is guilty of medical negligence following well known principles must be in view:-Negligence is not breach of a duty exercised by omission to do something which is a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonable competent practitioner in his field.
V **, Vi***
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
The complainants have failed to bring home any of the above elements of negligence against the ops.
Further, taking a cue from the ratio of the of the judgement in the case of Kusum Sharma V. Batra Hospital and Medical Research Centre &ors., I (2010)CPJ 29 (SC) = II (2010) SLT 73= (2010) 3 SCC 480, it is observed that the reasonable degree of skill and knowledge was exercised and there is nothing on record to indicate that the protocol observed by the Opposite Party No.-2 fell short of a reasonably competent doctor. The Complainant has not been able to establish as to exactly what the doctor ought to have done as per the standards of normal medical parlance and was not done. They have made some blank allegations without any basis.
As already indicated above the facts of this case do not demonstrate any shortfall, negligence or deficiency in the line of treatment and care that was required to be taken including the prescription of medicines.
The second limb of the grievances is that the Complainant was interested for treatment under Swasthya Sathi scheme and gave the card relating to Swasthya Sathi but O.P No.-1 without use returned back the said card to the Complainant. It is a great regret that O.P No-1 used the word in place of diagnostic column RTA Polytrauma Alcoholic). Staff of O.P No.-1 intentionally had written in discharge summary “RTA_c/o facial injury / left hand injury patient was under alcohol influence. To resist the said claim of the complainant the ops have assigned a reason to the effect that Monideepa Nursing Home is the highest Swasthya Sathi provider in free of cost in Purba Medinipur, but patient was under alcoholic influence and according to guideline under alcoholic influence patient was not covered under this scheme, (Annex-2), The complainants have not been able rebut the said evidence of the ops. However the complainants tried to convince that thereafter Complainant visited with New Vivekananda Nursing Home at Tamluk and disclosed the intention of treatment through Swasthya Sathi Scheme, treatment was facilitated through Swasthya Sathi Scheme. This contention does not hold good because the New Vivekananda Nursing Home at Tamluk did it after almost 6 days of the first treatment by ops, when patient could not be under alcohol influence or there may be other reasons too.
In the above backdrop, we are of the view that the complainants have become unsuccessful to bring home elements of medical negligence and deficiency in service against the ops. Therefore, the complainants are not entitled to getany relief in this case.
Thus, the case does not succeed.
Hence, it is
O R D E R E D
That CC/62 of 2021 be and the same is dismissed on contest against the ops. No order as to costs is passed.
Let a copy of the judgment be supplied to each of the parties free of cost.
