DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No. /316/2016

Date of Filing                          Date of Admission      Date of Disposal

                         25.05.2016                               06.06.2016               29.08.2024

P R E S E N T                         :- Sri. Daman Prosad Biswas……….President.

                                                :- Sri.  Abhijit Basu…………………. Member.

JUDGMENT/FINAL ORDER

Complainant above named filed this complaint against the aforesaid Opposite Party praying for direction to pay compensation amounting to Rs. 15,00,000/- for negligence in rendering proper service, further compensation amounting to Rs. 2,00,000/- for mental pain and agony and further compensation amounting to Rs. 1,00,000/-, cost of the case amounting to Rs. 50,000/- and other reliefs.

He alleged that O.P No. 1 is a treating doctor, O.P No. 2 is a concerned Nursing Home wherein Complainant was wrongly operated.

He further alleged that he had suffering from stomach pain for a prolonged time and went before the O.P No. 1 for availing treatment and as per advice of O.P No. 1 he was admitted before O.P No. 2 and consequently on 01/08/2009 operation was done by O.P No. 1 for removing gallbladder of the Complainant on 05/08/2009. The Complainant was discharged from O.P No. 2.

Before operation USG / SONO scan was done before O.P No. 2 on 31/07/2009 by Dr. A. K. Lahiri. On seeing the said report O.P No. 1 had advised the Complainant to go for a surgery for removal of gallbladder.

After the said operation Complainant was well for another two years but ultimately in the April, 2011 he became unwell and was suffering with unbearable stomach pain and was admitted in Basirhat S.D. Hospital and thereafter on 23/04/2011 he had consulted with Dr. Sibabrata Banerjee and as per his advise one USG was done at Quadra Medical Service Pvt. Ltd. They stated in the report of USG that:-

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“GALLBLADDER:- History of Cholecystectomy on 31/07/2009. Gallbladder like structure with calculus is seen at Gallbladder fossa.”

In the said report it was also specified as:-

“IMPRESSION:- Gallbladder like structure with calculus at Gallbladder fossa. Marginal prostatomegaly. Clinical correlation suggested.”

Said USG report was authoritatively signed by Dr. Debasish Dey, M.D. Consultant, Radiologist.

Complainant became perplexed and on 01/05/2011 he met with Dr. S. K. Saha. On 12/05/2011 he had also consulted with Dr. S. K. Roy.

Dr. S. K. Roy advised another USG and that was done in Mallick Diagnostic Centre, Basirhat and they reported:-

“GALLBLADDER:- Not visualized (History of operation). However, Gallbladder like structure likely stump having calculus within it noted in G P Fossa.”

In October 2015 Complainant had again be admitted in S.D. Hospital Basirahat in the care of Dr. Ananda Bhattacharya for his recurring illness.

On 02/01/2015 Complainant had consulted with Dr. Indranil Saha for abdominal pain and vomiting.

On 16/111/2015 Complainant undergone another USG at Badartala Scan Centre. In the said USG it was reported:-

“Gallbladder normal distended. Wall thickness normal. No wall oedema. One eco reflexive calculus (15.8 mm) is seen within the lumen. No focal SOL seen.”

On 18/11/2015 Complainant had consulted with Dr. S. K. Roy and he also met with Dr. Asis Mitra. Thereafter, Complainant was admitted at R G Stone Urology and Laparoscopic Hospital Unit of R G Scientific Enterprises Pvt. Ltd. from 23/11/2015 to 27/11/2015 and he paid bill amounting to Rs. 46,809/-. Complainant is still now bearing the recurring stomach pain. He continued his treatment at Appollo Gleanagles Hospital and they suggested some investigation and Complainant expended Rs. 50,000/- for that purpose.

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In view of aforesaid circumstances he has becoming helpless victim due to negligence of O.P No. 1 & 2. Hence, the Complainant filed this case praying for aforesaid reliefs.

O.P No. 2 appeared in this record and filed W/V and denied the entire allegations made in the petition of complaint contending interalia that the case is harassing, misconceive and liable to be rejected, case is full of concocted allegations, case is barred by law of estoppels waiver and acquisitions, case is bad for missjoinder and nonjoinder of parties, case is barred by law of limitation. He further contended that Complainant not yet included some other doctors before home he continued his treatment. He denied the entire allegations made in the petition of complaint. He further contended that there is no deficiency in service on his part. He prayed for dismissal of the case.

O.P No. 2 appeared in this record and filed W/V and denied the entire allegations made in the petition of complaint contending interalia that the case is barred by law of limitation, Complainant has no cause of action, case is barred by principles of estoppels waiver and acquisitions, he denied the entire allegations made in the petition of complaint and further contended that Complainant has failed make out his case. He prayed for dismissal of the case.

O.P No. 3 also appeared in this record and filed W/V denying entire allegations contending interalia that the case has no cause of action, case is barred by principles of estoppels waiver and acquisitions, case is bad for law of limitation. He further contended that there is no deficiency in service. He prayed for dismissal of the case.

Decisions with reasons:-

Complainant in support of his case filed affidavit – in – chief, O.P No. 2 filed questionnaires, Complainant gave answer. O.P No. 1 & 3 also filed questionnaires, Complainant gave answer. O.P No. 1 filed affidavit-in-chief, Complainant filed questionnaire, O.P No. 1 filed answer, O.P No. 3 also filed affidavit-in-chief, Complainant filed questionnaire, O.P No. 3 filed answer, Complainant filed BNA. O.P No. 1-3 also filed BNA. O.P No. 2 not yet filed BNA.

We have heard the Ld. Advocate for the Complainant at length on the date of hearing argument.

On the date of hearing argument O.P No. 1-3 or their representative were not present.

It is the main allegation of the Complainant that due to negligence on the part of the O.P No. 1 & 2 he had been badly suffered and for that reason he filed this case.

On perusal of petition of complaint we find that Complainant alleged that relating to stomach pain for a long time he went before the O.P No. 1 for proper treatment and on that time on 31/0/2009 one USGwas done before SONO scan Basirhat and they stated in the report that ‘Gallbladder:- is distended in size with thickened wall. Solitary large echoreflective calculus seen at the neck of GB. It measures 16mm in diameter. No intra luminal studge or mass is seen’.

As per advise of O.P No. 1, Complainant was admitted before O.P No. 2 and consequently on 01/08/2009 one operation was done on his body and his gallbladder was removed in the said operation and he was discharged from the said nursing home i.e. O.P No. 2 on 05/08/2009.

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Complainant further alleged that subsequently after two years his aforesaid pain was revived then USG examination was done in Quadra Medical Service Pvt. Ltd. and in the said report they found gallbladder like structure with calculus at gallbladder fossa.

Ld. Advocate for the Complainant argued at the time of hearing that how it is possible.

On perusal of USG report of Quadra Medical Service Pvt. Ltd. dated 09/04/2011 we find that they stated ‘history of cholecystectomy’ on 31/07/2009 gallbladder like structure with calculus is seen at gallbladder fossa.

Complainant further alleged that subsequently another USG examination was done of his body in Mallick Diagnostic Centre and in the said report they found gallbladder like structure lightly stump having calculus within it noted in GB FOSSA.

Ld. Advocate for the Complainant argued at the time of hearing that how it is possible if O.P No. 1 operated the gallbladder from the body of the Complainant.

On perusal of USG report of Mallick Diagnostic Centre dated 14/05/2011 we find that they stated in their report ‘Gallbladder – not visualized (history of operation)’ however, gallbladder like structure like stump having calculus within it noted in GB FOSSA.

On 16/11/2015 another USG was done before Badartala Scan Centre, Basirhat and they prepared report dated 16/11/2015. In the said report it has mentioned ‘Gallbladder:- normally distended wall thickness normal. No wall oedema noted. One echoreflective calculus (15.8mm) is seen within the lumen. No focal SOL seen.

On careful study of the aforesaid reports it appears before usthat immediately after the aforesaid operation dated 01/08/2009 USG was done on 24/04/2011 before Quadra Medical Service Pvt. Ltd. but they did not mention in their report that they have seen the gallbladder in the body of the Complainant but they stated that they have seen gallbladder like structure. That indicates that they did not see any organ of the human body which known as gallbladder.

Now the question comes before us that after operation of Gallbladder there can be revive of such type of organ in the human body is possible or not. Gallbladder like structure which they stated in their report can be said as Gallbladder?

All these questions are purely the subject matter of Medical Expert.

Only the Medical Expert or Medical Board having competent persons and having expert in this subject can say the complicated question relating to medical science which has been alleged by the Complainant.

But on careful perusal of record we find that Complainant did not take any steps for arrangement of Medical Board for examination of all those treatment papers of the Complainant. Even Complainant did not make any prayer before this Commission for appointment of any expert for examination of aforesaid treatment papers and for passing opinion.

In this context we have carefully gone through the decision of Hon’ble Madhyapradesh State Consumer Disputes Redressal Commission reported in IV (2008) CPJ 23 (Prokash Nursing Home Vs. Ajay Khandel & Anr.) dated 30/04/2008. We find that Hon’ble S.C.D.R.C held:-

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10. Even otherwise, expert opinion can only guide and assist the Court, but the final decision has to be with the Court after considering all the aspects. This was forcefully expressed by Bollen J. [(1982) 33 SASR 189, 120 as quoted in Jones, Medical Negligence, 2nd Ed. 1996 p. 162]- "But the Court does not merely follow expert evidence slavishly to a decision. The Court considers and weighs up all admissible evidence, which it has received. If the Court did merely follow the path apparently pointed by an expert evidence with no critical consideration of it and the other evidence. It would abdicate its duty to decide, on the evidence, whether in law a duty existed and has not been discharged."

In this context we have carefully gone through the decision of Hon’ble S.C.D.R.C, Gujarat reported in VII - 1994 (2) CPR (Basudev Sankar Rao Bedekar & Ors. Vs. Dr. (Ms.) S.C. Pandya & Ors.) dated 11/04/1994.

We find that Hon’ble S.C.D.R.C held:-

4. The complainant has been orally examined before the Commission and in cross-examination he has made the allegation to the extent that his dance wife died in the nursing home of the opponents and thereafter in order to get away from the responsibilities, the dead body was taken to the V.S. Hospital. Except for the bare allegation, no other evidence has been produced by the commission, plainant. The complainant has not tried to examine any qualified doctor expert to prove his case. The complainant was not able to point out as to whether any treatment given by the opponents was wrong or not recognised by medical profession.

   5. At the request of the complainant, we permitted him to cross-examine the opponent No. 1 Dr. (Ms.) Pandya. The original case papers were also produced with the written version wherein detailed notes have been made regarding the treat- ment given from time to time and calling of various experts to save the life of the complain- ant's wife and the learned advocate of the com- plainant was not able to point out to Dr. (Ms.) Pandya as to which treatment was not proper treatment or where was the negligency of any of the doctors. On the contrary, the treatment given by Dr. (Ms.) Pandya and her associates were something more than what a general doctor would give to a patient.

In the said case due to absence of expert report by qualified doctor case was dismissed with cost.

Having considered the entire matter and considering the pleadings of both the parties and evidence, we are of the firmed view that without considering the expert report no order should be passed against the O.P No. 1 & 2.

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In this context we have carefully gone through the decision of Hon’ble N.C.D.R.C reported in (2004) WBLR (CPNC) 166 (Sri Charan Singh Vs. Healing Touch Hospital & Ors.) dated 24/04/2003.

We find that Hon’ble N.C.D.R.C held:-

21. The complianant has not been able to prove any negligence against the Opposite Parties by way of any evidence of an Medical Expert or Medical Literature as to what they did, was not expected of a Doctor of average skill or they did not do what was expected of a Doctor possessing ordinary skill. Here were Doctors of large experience having the requisite qualifications and experience and they did, what would have been done by Doctor of an ordinary skill. We do not see that any case of medical negligence has been made out against the opposite parties by the complainant. This compliant is devoid of merits and is hereby dismissed with costs which we fix at Rs. 5,000/- to Opposite Party Nos. 1 & 2 and Rs. 5,000/- each to Opposite Party Nos. 3 & 4 payable by the complainants within eight weeks of this order.

On perusal of record we find that Complainant is the consumer and O.Ps are the service provider.

            Having regard to the aforesaid discussion it is clear before us that Complainant has not able to established his grievance by sufficient documents beyond reasonable doubt and accordingly Complainant is not entitled to relief as per his prayer.

            In the result, present case fails.

            Hence,

                                    It is,

                                                Ordered,

            That the present case vide no. C.C./316/2016 be and the same is dismissed on contest against the O.Ps but without any order as to costs.

            Let a plain copy of this order be given to the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

President

Member                                                                                                          President