DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 641/2013
Date of Filing: Date of Admission: Date of Disposal:
02.12.2013 06.12.2013 25.09.2017
Complainant: - Tajmira Bibi, W/o Md. Patauddin, Village & P.O.-Matia,
P.S.-Basirhat, District-North 24 Parganas.
Vs.
Opposite Parties:- 1) Dr. Bhaskar Som of Som Medical Centre,
Itinda Road, Badar Tala, Basirhat, North 24 Parganas,
Pin-743413.
2) R.G. Kar Medical College & Hospital,
1, Khudiram Bose Sarani, Kolkata-700 004.
3) The West Bengal Medical Council, 8, Lyons,
3rd Floor, Kolkata-700 001.
P R E S E N T :- Sri. Bankim Chandra Chattopadhyay…………President.
:- Sri. Siddharta Ganguli ….………………………Member.
:- Smt. Silpi Majumder………………………………Member.
J U D G E M E N T
This complaint is filed by the Complainants u/S 12 of the Consumer Protection Act, 1986 alleging medical negligence as well as deficiency in service against the OPs as due to negligence and deficient service of the OP-1 the Complainant had to suffer physically, financially and mentally for a prolonged period.
The brief fact of the case of the Complainant is that in the month of March, 2013 she suddenly felt ill due to suffering from some gynecological problem and for treatment she along with her husband went to the Som Medical Centre where it was detected by the OP-1 that she was suffering from chocolate cyst in her right ovary and they were told by the OP-1 that for removal of the same surgical intervention needed. The OP-1 assured the Complainant that the operation is a minor one and no reason to worry. Accordingly the patient got admission at the Som Medical Centre/Nursing Home wherein operation was done on 01.04.2013. The OP-1 stated that the operation was uneventful and everything was done successfully. The Complainant got discharge on 04.04.2013 from the nursing home, but at the time of discharge the patient was feeling uneasy and the husband of the patient was told by the OP-1 that gradually everything will be alright and the patient will be quite normal as before. But after returning home the patient became more ill and was deteriorating day by day due to tremendous pain in her abdomen. She could not consume any food. Under this situation without wasting time the husband of the Complainant rushed to the OP-1 on 09.04.2013, but on that date also assurance was given by the OP-1 as before. Inspite of this as the physical condition of the Complainant did not improve, the husband of the Complainant went to the OP-1 on several occasions i.e. on 13.04.2013, 19.04.2013, and 23.04.2013 and on the last occasion i.e. 23.04.2013 the OP-1 did not take the matter seriously apart from advise for an USG and chest X-ray. As the report was not good then the husband of the Complainant went to the OP-1 who stated very casually that mistake may occur by any person and suggested to go to the OP-2, having no option the patient along with her husband went to the OP-2, wherein the senior doctor along with other doctors checked the condition of the patient along with the medical reports and decided for an urgent operation as it was the matter of life and death of the patient. Inspite of operation the patient till this date is not in a stable condition as the doctor has to make an alternative path for passing her stool and the doctors of the OP-2 had stated that after two months another operation will be held. Subsequent operation was also done by the doctor of the OP-2. Due to grave and intolerable situation of the patient the husband rushed at the Basirhat Police Station on 09.05.2013 and lodged a complaint against the OP-1 being GDE no-157/2013, dated 09.05.2013, but the concerned P.S. did not take any step. Due to bed ridden condition of the patient, their two minor children became helpless and their mother did not get any scope to look after them. From the treatment papers of the OP-2 it is crystal clear that due to negligent operation by the OP-1 further operation had to be performed by the OP-2, which is a glaring example of medical negligence and deficiency in service on behalf of the OP-1 in rendering medical treatment to the patient. Moreover there was no infrastructure at the Som Medical for performing the operation and inspite of knowing the same the OP-1 operated the patient therein, which reveals that the OP-1 played simply with the life of the patient and he used to do this with the public at large. As the grievance of the Complainant had not been redressed by the OP-1, hence by filing this complaint the Complainant has prayed for cancellation of the registration of the OP-1 due to professional misconduct, violation of professional ethics, direction upon the OP-1 and 2 to pay compensation either jointly or severally to the tune of Rs.15,00,000/- due to unnecessary harassment, mental agony, pain and financial loss and litigation cost of Rs.20,000/- to her.
The petition of complaint has been contested by the OP-1 by filing written version contending that the OP being a doctor has moral obligation towards his patients and the OP used to render medical treatment and service to the patients with great caution, care, skill as well as satisfaction of the OP and the patient. It is stated by the OP-1 that on 24.03.2013 the Complainant along with her husband visited the clinic of this OP with USG report dated 19.03.2013 and the impression of the report was (i) Right sided ovarian cyst and (ii) probe tenderness in right ilea fossa. The OP perused the report and as the Complainant being the BPL card holder advice was given to do some pre-operative tests like blood, ECG, X-Ray of chest, barium milk X-Ray of ileocaecal region. So this OP had discharged his duty which was required to be discharged and he never said that the question operation was a minor one. According to the OP in every operation there are some minor/major inherent risks, so being a responsible doctor he cannot utter the said version as stated by the Complainant. It is needless to mention that with a view to file this complaint the Complainant has stated such statements and as such onus lies upon the shoulder of the Complainant to prove the same by cogent document. The Complainant was admitted at the Som Medical Centre on 01.04.2013, one bottle of blood (group B+) was requisitioned, the Complainant had cyst in her right ovary and inflated appendix, cyst was operated and simultaneously appendectomy was also done, after operation ovary cyst and the appendix were sent for biopsy and the operation was uneventful. The OP-1 has submitted that during stay in the nursing home necessary treatment was rendered and all sorts of precaution was taken by this OP as well as the staff of the nursing home and the Complainant was discharged with necessary advice and free medication for oral use at home were also given to the Complainant. It was the duty of the Complainant to bring the actual picture to the kind notice of this Ld. Forum that no consideration was taken from the Complainant for such operation and even during her stay in the nursing home as per RSBI norms a sum of Rs.100/- was given to the Complainant as conveyance charge and all these facts has been suppressed by the Complainant intentionally and motivatedly and for deliberate suppression of the material fact the Complainant is not entitled to get any relief from any court of law particularly when it is the settled principle that aggrieved party must approach before the court of law with clean hands. On 09.11.2013 the Complainant came to the clinic of the OP for removal of stitches which were absolutely healthy scar and the Complainant was absolutely healthy at that time, some medicines were prescribed, she was asked to come for check up after 10 days, on the date of removal of the stitches she had no pain as allegedly stated in the complaint, so this complaint is filed by the Complainant with a view to grab some money from this OP through an illegal manner. The Complainant is bound to prove each and every allegation with cogent evidence. The OP has submitted that is further suppressed that on 19.09.2013 the Complainant came to this OP for check up as per the earlier advice and on that day the Complainant was examined and the OP found the she was absolutely fit and healthy and she came to the clinic of the OP on foot without taking any help of others and this fact has totally suppressed by the Complainant in the complaint. It was required to bring the fact on record that after 4th week of operation the complainant visited the OP on 23.04.2013 with history of sudden acute pain in her abdomen and the OP with due care and skill examined the same thoroughly and found the abdomen tensed and tendered. For this reason the Complainant was advised for immediate USG and straight X-Ray of the abdomen. From the report it was evident that there was intestinal obstruction and the OP-1 without any further delay referred the patient to the OP-2. The treatment related papers will prove that the Complainant is fully recovered from her later ailment. This OP rendered the medical treatment to the patient following the accepted procedure and he was never casual in discharging his duty and responsibility. According to the OP what was required to be done for the Complainant, same was done properly and effectively, but the Complainant has unnecessarily blamed this OP for wrongful gain. The OP has referred the patient to the OP-2 for her subsequent ailment without wasting any time. The OP has prayed for dismissal of the complaint with cost.
The Complainant has adduced evidence on affidavit along with several papers and documents relating to the treatment of the Complainant. The OP-1 has also adduced evidence on affidavit. As per the prayer made by the Complainant an expert opinion has come from an expert Doctor in the same filed on which operation was performed by the OP-1. The expert doctor were cross-examined by the parties on dock, the Complainant and the OP-1 have filed their respective BNA with a copy to the other side.
We have carefully perused the record; papers, documents, treatment related papers, expert opinion, BNAs and heard argument at length advanced by the Ld. Counsel for the Complainant and the OP-1. During argument none was present on behalf of the OP-2 and 3 and they did not contest the complaint by filing written version. We have heard the complaint exparte against the OP-2 and 3.
POINTS TO BE DECIDED:
- Whether the Complainant is a consumer or not?
- Whether the complaint is maintainable or not?
- Whether there is any medical negligence and/or deficiency in service on the part of the OPs or not?
- Whether the Complainant is entitled to get any relief as sought for or not?
DECISION WITH REASONS:
1. At the very outset we are to decide as to whether the Complainant is a consumer or not within the purview of the definition of the ‘Consumer’ as enumerated in the Consumer Protection Act, 1986 or not. It is submitted by the Complainant that she was insured under an insurance policy and as per the terms and conditions of the said policy the Insurance Company is under obligation to bear the entire medical expenses as incurred by her in cashless manner, but the Complainant is under the obligation to pay due premium amount to the Insurance Company for such policy in a regular interval. According to the Complainant as she is paying the due premium amount for continuation of the said insurance policy, she can be termed as consumer. On the contrary the OP-1 has stated in his written version that as free treatment was provided to the Complainant, she cannot be treated as consumer, even she did not pay any amount towards the investigation cost and rather the Complainant got some amount towards her conveyance charge. The OP-1 has prayed for dismissal of the compliant on this score alone. In this respect we may mention to the landmark judgment passed by Three Judges Bench of the Hon’ble Supreme Court in the case of Indian Medical Association Vs. V.P. Santha & Others, reported in 1995-SCR SUPP5-110, 1995-CTJ-3-969. The Hon’ble Supreme Court has concluded by holding as under:-
“56. On the basis of the above discussion, we arrive at the following conclusions:-
(1-10) …………………………………………………………….
(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded a service rendered free of charge, if the person availing of the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ‘service’ as defined in the Section 2(1) (o) of the Act.”
In view of the aforementioned landmark judgment of the Hon’ble Supreme Court, we are of the view that the Complainant can easily be termed as a consumer within the definition of ‘Consumer’ as enumerated in the C.P. Act, 1986 as the Complainant used to pay premium amount for maintaining the insurance policy. Hence the point no-1 is thus decided in favour of the Complainant.
2. Before entering into the merit of this complaint we are to adjudicate as to whether the complaint is maintainable before this Ld. Forum or not. Admittedly the Complainant was treated and operated upon by the OP-1 at Som Medical Centre. The address of the OP-1 is situated within the territorial jurisdiction of this Ld. Forum. Therefore the complaint is maintainable from the point of its territorial jurisdiction. In respect of pecuniary jurisdiction we have noticed that the Complainant has sought for compensation which does not exceed the pecuniary of this Ld. Forum. Hence the complaint is also maintainable from the point of its pecuniary jurisdiction.
But there is a defect in the instant problem i.e. the Complaint petition is filed in the name of Tajmira Bibi as a ‘consumer’, but in the petition of complaint signature has been made by one Md. Patauddin. Not only that, the evidence on affidavit has also been adduced by one Md. Patauddin. More surprisingly in the cause title of the complaint under the name of the OP-1 it is written as ‘represented by her constituted Attorney husband Md. Patauddin’, which clearly indicates that the Op-1 is hereby represented by Md. Patauddin. If for the sake of argument it is hold that Md. Patauddin being the husband of the Complainant and constituted Attorney of the Complainant, but his name is not mentioned under the name of the Complainant nor no documentary evidence is forthcoming to prove that Md. Patauddin being the constituted Attorney has filed this complaint. Due to such anomaly the complaint suffers from its inherent defects.
3. Inspite of such defect we are inclined to dispose of this complaint on its merit. It is seen by us that in the month of March, 2013 the Complainant became ill due to her sufferings from some gynecological problem and for treatment she along with her husband went to the Som Medical Centre, wherein it was detected by the OP-1 that she was suffering from chocolate cyst in her right ovary, she was told by the OP-1 that for removal of the same surgical intervention needed. Accordingly the patient got admission at the Som Medical Centre/Nursing Home wherein operation was done on 01.04.2013. The Complainant got discharge on 04.04.2013 from the nursing home, but subsequently the Complainant did not feel comfort as her abdominal pain was going on and some time it became unbearable. Due to such uneasiness she went to the OP-1 on several occasions, but the OP-1 had failed to cure her from her ailment and discomfort completely and subsequently she was referred to the OP-2 by the OP-1, wherein further operation was done, inspite of this now she is not completely cured from her ailments. According to the Complainant due to medical negligence and improper treatment provided by the OP-1, she is facing such trouble and discomfort till date for which her family and her two children are facing serious trouble and harassment on a regular basis and for this reason by filing this complaint she has prayed for certain reliefs. The rebuttal case of the OP-1 is that he had rendered medical treatment to the Complainant as per standard medical practice with great care and caution. He had adopted the approved medical procedure at the time of extending his treatment towards the patient and with due diligence he had performed the surgery after compliance of the pre-operative and post-operative procedure. According to the OP-1 there is no medical negligence on his behalf and according to him the complaint is liable to be dismissed.
We have noticed that primarily the Complainant to Dr. G. Mahmud due to her illness, who advised for an USG of lower abdomen along with some medicines. Upon perusing the USG report the said doctor found chocolate cyst in her right ovary and accordingly referred to the Gynae Surgeon. Then the Complainant went to the OP-1 who upon going through the USG report advised for some pathological tests along with ECG, X-Ray of chest and prescribed some medicines on 24.03.2013. On 01.04.2013 the patient again went to the OP-1 and on that date the patient was advised to get admission for removal of chocolate cyst from her right ovary through surgical intervention. From the discharge certificate it is evident that on 04.04.2013 she got discharge from where it is revealed that appendix was removed along with ovarectomy. After discharge the patient again visited the OP-1 on 09.04.2013 19.04.2013 and 23.04.2013, during that period the patient told the OP-1 that she was feeling uneasiness and discomfort due to her abdominal pain. Accordingly the OP-1 suggested for USG, blood test and X-ray of the abdomen. Be it mentioned that after the operation the right ovary and appendix were sent for Histopathology. In the Histopathology report there was no evidence of malignancy. During hearing the Ld. Counsel for the Complainant has argued that in the prescription dated 23.04.2013 no advice was given by the OP-1 for the abovementioned tests. We have noticed that admittedly in the prescription dated though the OP-1 did not give any advice in writing for the aforementioned tests, but actually those tests were done as per the advice of the OP-1 which the test reports reveal. The USG report reveals ‘Distended loops of small bowel’ which suggested ‘Intestinal obstruction’ and ‘left sided small ovarian chocolate cyst’. The St-X-Ray of abdomen suggested ‘Intestinal Obstruction’. Upon perusing the reports the OP-1 has referred the patient to the OP-2 for better and further treatment. Since then the patient was treated at the OP-2 by their doctors. It is alleged by the Complainant that there was no infrastructure at the Som Medical for performing the operation and inspite of knowing the same the OP-1 operated the patient therein, which reveals that the OP-1 played simply with the life of the patient and he used to do this with the public at large. In this respect we are to say that within the four corners of the petition of complaint there is no averment that the OP-1 allured the Complainant and her husband to get admission at the Som Medical Centre under his treatment, rather it is revealed that the Complainant went to the OP-2 out of their sweet will. Therefore such wild allegation against the OP-1 does not stand at all. Moreover the treatment related papers also reveal that there was no medical negligence on behalf of the OP-1 in performing the surgery of her right ovary. So we are constrained to hold that there was lack of infrastructure at the centre where the Complainant was operated. It is pertinent to mention that the subsequent treatment related papers also do not reveal any medical negligence and improper treatment of the OP-1.
As per the application made by the Complainant entire medical papers were sent to the doctor of the same field for an expert opinion as to whether there was any medical negligence on behalf of the OP-2 or not. The Expert Doctor being the Professor & Head of the Department (G & O) Department, IPGMER/SSKM Hospital, Kolkata has opined which runs as follows-
‘From the available documents it appears to be a case of post operative intestinal obstruction. Post operative bowel obstruction is not a very uncommon complication after any abdominal surgery. The common causative factors may be various, eg, Infective peritonitis, Intra peritoneal hemorrhage, rupture of Chocolate cyst, excessive gut handling, Intestinal Parasite infestation etc. Such a complication happened in cases of many surgeons and in many of these cases the exact reason could not ascertained.
In this case, the pre-operative investigations indicated the necessity of the surgery, post operative histopathology examination also revealed that the diagnosis was correct. Unfortunately the patient developed intestinal obstruction and had to go through an agonizing period and suffering. But the exact cause leading to this complication is not clear in this case. Various predisposing factors were co-existent, eg. Rupture of chocolate cyst of ovary, appendicitis, presence of intestinal worms etc. It is true that the patient had to suffer much from this complication, but it cannot be said with certainty that it happened due to professional negligence or deficiency in rendering service by the concerned doctor in absence of corroborative evidence.’
The abovementioned opinion was challenged by the parties on dock, but no specific questions were put to the expert doctor on dock rather if there was any question at all put by the parties to the expert, the same is not available from the record. We have perused the reply of the expert doctor given on dock, from where it is evident that there is parity by and between his opinion and the reply. The expert doctor to corroborate his opinion has submitted some extract form the medical literature.
Therefore it is crystal clear that the Complainant has miserably failed to prove any medical negligence, deviation from approved and standard medical practice and deficiency in service on behalf of the OP-1 in rendering medical treatment towards the Complainant by adducing cogent and corroborative evidence.
In this respect we may mention to the landmark judgment i.e. Jacob Mathew vs. State of Punjab & Another (2005) 6 SCC 1, a three Judges Bench of the Hon’ble Supreme Court discussed the law of negligence under Tort Law, in extenso. It has been observed that negligence becomes actionable on account of injury resulting from the act of omission amounting to negligence attributable to the person sued. It was held in the paragraph no-11 that essential components of negligence, as recognized, are three- ‘duty’, ‘breach’ and ‘resulting damage’, that is to say:-
“ (1) the existence of a duty to take care, which is owed by the defendant to the complainant;
(2) the failure to attain that standard care, prescribed by the law, thereby committing a breach of such duty; and
(3) damage, which is both casually connected with such breach and recognized by the law, has been suffered by the Complainant.
If the claimant satisfies the court on the evidence that these ingredients are made out, the defendant should be held liable in negligence.”
In the paragraph no-18 of the Jacob’s case (Supra) it has been held that ‘………….. a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence…………. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did not possess………. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.’
In Achutrao’s case (AIR 1996 SC 2377) the Hon’ble Supreme Court held that ‘…………. But as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended the patient with due care, skill and diligence and if the patient still not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.’
In the instant complaint neither any documentary nor oral evidence is forthcoming from the end of the Complainant that the OP-1 was negligent in providing treatment to her for which she had to suffer for a prolonged period and/or the surgery performed by the doctor was done in a negligent manner for which she had to suffer or due to defect in the said surgery the adjacent organ became defective for which further complications arose. The Complainant has also failed to prove by adducing evidence that due to surgical intervention for removal of chocolate cyst from her right ovary intestinal obstruction cropped up. We have noticed that removal of chocolate cyst from her right ovary was performed in a satisfactory manner and the same was uneventful. Admittedly the Complainant had to suffer from further complications for a prolonged period, but whether there is any nexus by and between the operation and the further complications, the Complainant has failed to prove the same. It is true that in the subsequent treatment no where the treating doctors have opined that the removal of cyst from her right ovary was not done in a perfect manner. Therefore due to lack of cogent evidence this complaint cannot stand, hence it fails.
Going by the foregoing discussion it is ordered that the complaint is dismissed on contest
against the OP-1 and exparte against the OP-2 and OP-3. However considering the facts and circumstances there is no order as to cost. The complaint is disposed of accordingly.
Let plain copy of this order be supplied to the parties free of cost as per the provision of the CPR, 2005.
Member Member President
Dictated and corrected by me:
