West Bengal

Siliguri

CC/2014/142

Mr. Bikas Kumar Singha - Complainant(s)

Versus

Dr. A.K.Maji, - Opp.Party(s)

30 Nov 2023

ORDER

Sri. Apurba Kr. Ghosh............President.

 

 

The complainant has filed this case against the Opposite Parties and praying for the following order/relief:-

1. Direction against the OP no. 1 to refund the entire expenditure of Rs. 100,000/- to the complainant incurred for the wrong treatment by the OP no. 1.
2. Direction against the OP’s to pay a sum of Rs.18,95,000/- to the complainant  as compensation for severe loss of health and impairment of the son of complainant for mental agony, harassment and tension caused by the OP’s.
3. Direction against the OP’s  to pay a sum of Rs. 5,000/- to the complainant towards cost of the legal proceedings.
4. Recommendation to the appropriate Medical Council for cancellation of registration of OP no. 1 as surgeon and doctor and other applicable strict measures.
5. Any other order/orders which may be deems fit and proper.

Brief fact of the case

1. The complainant is a consumer of the OP’s and his wife was a regular patient for consultation of the OP no. 1 and during her pregnancy she was under the advisory treatment of the OP no. 1, she visited the OP no. 1 regularly on every month from mid of 2013 and prescription was issued on 28.10.2013, 23.12.2013, 20.01.2014, 06.02.2014 and 19.03.2014, (Annexure-A collectively).
2. That, the wife of the complainant was admitted in OP no. 2 and gave birth to a male child on 08.02.2014, she was discharged on 13.02.2014. Discharge summary along with blood examination report of the newborn child of the complainant with date of investigation dated 11.02.2014 was given where the serum for Bilirubin (T) was reported to be 7.1 mg/dl. (Annexure-B Collectively).
3. That, the complainant noticed that the newborn baby was appearing unnaturally yellow and was too sick almost dead. The complainant  then went to the  Medica North Bengal Clinic, got his baby admitted in Medica on 17.02.2014 and discharged therefrom on 22.02.2014. In the Final Diagnosis part of the discharge summary it was explained that baby of the complainant had developed Early Kernicterus which was a condition which is caused when server Jaundice goes untreated for too long and Kernicterus is a type of brain damage that can result from high levels of Bilirubin in a baby’s blood and it  can cause athetoid cerebral palsy and hearing loss and also causes problems with vision, teeth and sometimes can  cause  intellectual disabilities/ early detection and management of jaundice can prevent Kernicterus . (Discharge summary from Medica North Bengal Clinic with other reports – Annexure – C Collectively).
4. That, the complainant is a non-medical person and believe the representation made by such a reputed doctor like OP no. 1 as regards the baby’s health & well being and the OP no. 1 despite having blood examination report of the baby in his hands before discharging  the wife of the complainant and baby could not manage to provide  proper care avoiding the  consequence impairing  the baby for his entire life.
5. That, the baby of the complainant has many consequential defects described in the medical reports other than him being a deaf and the said baby is deprived from becoming anything from his birth not being provided with a chance to hear, learn, talk and explore.
6. That, this case is a case  of gross violation of medical ethics and negligence of the highest magnitude which can never be Justified for a professional surgery risking the life of a persons.

On receipt of notice the OP no. 1 & OP no. 2 appears before this Commission through Vokalatnama, files written version, denied all the material allegation of the complainant. In the written version OP no. 1 and OP no. 2  have stated that the statements made in Para no. 2, 3, 4 & 7 of the complaint petition are more or less correct. Regarding Para no. 5 & 6  of the complaint the OP no. 1 has stated that , Dr. Sukomal Mitra was present at the time of caesarian operation of the wife of the complainant and after birth of the baby Dr. Sukomal Mitra took charge of the baby and Dr. Sukomal Mitra is a necessary party  in this case as because the allegations made in those paragraphs in the complaint are mainly in respect of the baby of the complainant which can only be answered by Dr. Sukomal Mitra . Regarding Para no. 8 & 9 of the complaint  the OP no. 1 again stated that Dr. Sukomal Mitra  is the best person to answer all the allegations in respect of the baby as Dr. Sukomal Mitra was present at the time of caesarian operation of the wife of the complainant. In respect of para no. 10 of the complaint OP no. 1 has stated that he treated the wife of the Complainant to the best of his ability with diligence and sincerity and there was no negligence i. deficiency in service on his part in treating the wife of the complainant. Both the OPs have also stated that no cause of action ever arose for filing the complaint against theme on any date as the wife of the complainant was discharge in a satisfactory condition without any complication by filing the W/V the OP no. 1 & 2 submits that the complainant is not at all entitled to any order or compensation from them.

Despite receiving notice the OP no. 3 & 4 did not turned up to contest this case. Accordingly this case is proceeding ex-parte against the OP no. # & 4.

Having heard the Ld. Advocate of both the sides and on perusal of the complaint, written version, documents filed by the parties the following points are to be decided:-

POINTS FOR CONSIDERATION

 

1. Whether the complainant is a consumer as per the provision of C.P. Act. ?
2. Whether the case is maintainable in its present form and prayer under the provision of the C.P. Act. ?
3. Whether there is any cause of action to file this case by the complainant?
4. Whether there was deficiency in service on the part of the OP as alleged by the complainant?
5. Is the complainant has able to prove this case and entitled to get any relief as prayed for?

 

Decision with reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

The complainant was given liberty to prove his case by adducing evidence. The complainant in order to prove the case files written deposition in the form of an affidavit. In the written deposition the complainant has stated & corroborated the contents of his complaint. The complainant  has specifically stated on which day his wife during her pregnancy was examined by the OP no. 1 and on which day his wife was admitted  in the OP no. 2, on which day she gave birth to a son, on which day she was discharged. The complainant in his written deposition has also specifically stated what complication  of his baby had arisen after discharge of his baby from the OP no. 2. He also corroborates the complaint by stating that, despite having blood examination report of the baby in the hands of the OP no. 1 he discharged the baby along with his mother when the serum for Bilirubin (T) of the new born baby was reported to be 7.1 mg/dl. The complainant has produced the discharge summary as well as blood examination report of the baby as Annexure- A collectively.

The complainant has also stated/corroborated the complaint and has stated that, he was compelled to got his baby admitted in the Medica North Bengal Clinic on 17.02.2014 as the complainant noticed that his new born baby was appearing unnaturally yellow and was too sick almost dead. The complainant has further corroborated that his son was discharged from Medica on 22.02.2014 where in the discharge summary Final Diagnosis was that the baby of the complainant has developed Early Kernicterus which is a condition which is caused when severe Jaundice goes untreated for too long. The complainant has also filed the discharge summery issued from the Medica North Bengal Clinic as Annexure –C (Collectively). By filing the written deposition along with the documents the complainant has stated that due to negligent act on the part of the OP no. 1 & OP no. 2 who did not provide proper care/treatment to the new born baby it faces consequential defects and became deaf and is deprived from any chance to hear, learn, talk and explore.

To falsify the case of the complainant  the OP no. 1 has filed written deposition in the form of an affidavit and also filed Bed Head Ticket in the name of Saruna Roy of Akash Hospital & Eves Clinic & Endoscopy Center Pvt. Ltd. for the period of 07.02.2014 to 13.02.2014. In the written deposition the OP no. 1 has corroborated the written version by denying the material allegations of the complainant.

At the time of argument Ld. Advocate of the complainant has stated that, they have already filed written notes of argument along with the documents. He also argued that the complainant has been able to prove his case against the OP no. 1 and OP no. 2 not only through his  written deposition but also by producing documents. At the time of argument Ld. Advocate of the complainant referred decisions of 1(1996) CLT 532 (SC) & 2009 CTJ 352 (SC) (CP). Ld. Advocate of the complainant has argued that , the complainant has been able to prove the case against the OP no. 1 and OP no. 2 and he is entitled to get relief as prayed for.

Ld. Advocate of the OP no. 1 & OP no. 2 during argument submits that, they have filed their written notes of argument and has stated everything to falsify the case of the complainant. He also argued that, the complainant has failed to prove the case against them and in the reply to the questionnaires they have stated everything. It is further argument of the OP no. 1 & OP no. 2 that, they have filed written deposition jointly in the form of an affidavit and in the written notes of argument the OP no. 1 has stated that, he is a gynecologist and the wife of the complainant was treated by him, male baby was delivered by him, there was no complication of either mother or the baby, at the time of delivery baby was normal and there was no negligence of treatment of the wife of the complainant  and the allegations of the complainant are baseless because the Bilirubin of the baby  was 7.1 which is normal as the same was below 12. It is also argument of the OP no. 1 & 2 that, Dr. Sukomal Mitra was  present at the time of caesarian operation of the wife of the complainant and after birth of the baby Dr. Sukomal Mitra took charge of the Baby and he is a necessary a party of this case because allegations made, if sustainable are  mainly in respect of the baby of the complainant which can only be answered by Dr. Sukomal Mitra who treated the baby. The further argument of the OP no. 2  is that, the OP no. 2 is a reputed Nursing Home of Siliguri and the wife of the complainant was treated by the OP no. 1  and other doctors and there was no negligence or deficiency in service on the part of the OP no. 2 in providing any facility or service and the complainant is not entitled to get any compensation from the OP no. 2.

Ld. Advocate of the OP no. 1 & OP no. 2 referred decisions reported in AIR 2010 SC 806 & 2005 Cr L J 3710 SC & I (2005) CPJ 9 (SC) and 2009(2) CPJ 48 (SC) & 2019 (I) SCC (CIV)620.

Having heard the Ld. Advocate of both the sides and on perusal of the complaint, written version, evidence of the parties, documents filed by them and on perusal of the written notes of argument we find the following facts which are admitted by both the parties.

ADMITTED FACTS

1. That, wife of the complainant during her pregnancy was under advisory treatment of the OP no. 1 and for which the OP no. 1 issued prescriptions on 28.10.2013, 23.12.2013, 20.01.2014., 06.02.2014 and 19.03.2014 (Annexure-A Collectively).
2. That, the wife of the complainant was admitted in OP no. 2 and gave birth a male child on 08.02.2014.
3. That, the wife of the complainant was discharged from the OP no. 2 on 13.02.2014.
4. That, the OP no. 2 issued discharge summary along with blood examination report dated 11.02.2014 of the new born baby of the complainant.
5. That, the blood examination report dated 11.02.2014 of the new born baby clearly disclosed the existence of serum for Bilirubin (T) as 7.1 mg/dl. (Annexure- B Collectively).

Subsequently the complainant noticed that his new born baby was appearing unnaturally yellow and was sick and he was compelled to got his baby admitted in Medica North Bengal Clinic on 17.02.2014 and she was discharged on 22.02.2014.

From the Annexure-C collectively it reveals that, the discharge summary issued from Medica North Bengal Clinic dated 22.02.2014 clearly disclosed in its Final Diagnosis Part that, the baby has developed Early Kernicterus which is a condition which caused when severe Jaundice goes untreated for too long. Kernicterus is a type of Brain Damage that can result from high levels of Bilirubin in a baby’s blood. It can cause athetoid cerebral Palsy and hearing loss.

Present condition of the bay of the complainant from the certificate of disability dated 27.08.2019 issued from the Office of The Chairman, Zonal Medical Board, North Bengal Medical College & Hospital, Govt. of West Bengal it is certified that the baby of the complainant became deaf.

In the written version and in the written notes of argument the OP no. 1 & OP no. 2 has stated that, Dr. Sukomal Mitra was present at the time of caesarian operation of the wife of the complainant and after birth of the baby of the complainant Dr. Sukomal Mitra took charge of the baby and for which Dr. Mitra is the best person to give answer who treated the baby of the complainant.

For the argument sake if the grounds assigned by the OP no. 1 & OP no. 2  in this regard is accepted the presumption will obviously go against the OP no. 2. It is not the case of the OP no. 1 & OP no. 2 that the complainant engaged Dr. Sukomal Mitra from outside during caesarian operation of the wife of the complainant. Had Dr. Sukomal Mitra was entrusted to remain present there at the time of giving birth of the baby it is presumed that Dr. Sukomal Mitra was engaged by the OP no. 2 and there is no doubt in this regard.

OP no. 1 and OP no. 2 by filing written version are trying to shift the burden on the shoulder of Dr. Sukomal Mitra but they failed to prove their defence. Because the wife of the complainant was neither treated by Dr. Sukomal Mitra, nor she was admitted in OP no. 2 under Dr. Sukomal Mitraz, nor Dr. Sukomal Mitra was engaged by the complainant  from the outside.

By referring decision reported in AIR 2010 SC 806 in Ramesh Chandra Agarwal – versus- Regency Hospital Ltd. & ors Ld. Advocate of the OP no. 1 & OP no. 2 argued that, “…………………there is a need to hear an expert opinion where there is a medical issue to be settled. The Scientific question involved is assumed to be not within the court’s knowledge”.  

On the other hand it was also held in (2010) 5 SCR 1 in V. Krishn Rao – Versus- Nikhil Super Specialty Hospital & another (Civil Appeal No. 2641 of 2010) it was held that “…………Expert evidence is not required in all medical negligence cases expert evidence is necessary when Fora Comes to the conclusion that case is complicated or such that if cannot be resolved without assistance of expert opinion- Fora cannot follow mechanical or straight Jacket approach –each case has to be  Judged on its own facts –negligence……….”

It is needless to mention here that, the average total serum Bilirubin level usually peaks at 5 to 6 mg per dl on the third to fourth day of life and then declines over the first week after birth. In the case in hand the OP no. 1 despite the blood examination report of the baby of the complainant is in his hand he discharged the wife & baby of the complainant without providing proper care.

Hon’ble Apex Court held that, a person who holds himself out ready to give medical advice and treatment impliedly undertakes that, he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes his certain duty. Viz- a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of the treatment. A breach of any of those duties gives a right of action for negligence to the patient. In the case in hand the OP no. 1 and OP no. 2 without obeying their duties were trying to shift the duty & responsibility on the shoulder of another doctor namely Dr. Sukomal Mitra with whom the complainant & his wife had no connection. It is needless to mention here that the wife of the complainant was admitted under the care of OP no. 2, Dr. A.K. Maji who issued medical prescriptions, etc. which are mentioned in Annexure –B collectively.

It is general practice that if a new born baby is having the serum for Bilirubin(T) was reported to be 7.1 mg/dl, the doctors are supposed to treat the baby with light therapies and other such therapies to avoid dreaded consequences. But in the case in hand the OP no. 1 and OP no. 2 discharged the wife and baby carelessly in a manner which is not expected from them.

Considering all we are of the view that, the OP no. 1 and OP no. 2 have failed to prove that they had taken proper care and done their duties to repel the charge of negligence. We are also of the view that the OP no. 1 and OP no. 2 are jointly and severally liable to pay compensation to the complainant as the complainant has been able to prove his case against them,

Hence,

O r d e r e d,

That, the instant Consumer Case No. 142/2014 be and the same is allowed on contest against the OP no. 1 and OP no. 2 and ex-parte against others but in part.

The OP no. 1 & OP no. 2 are directed to pay a sum of Rs. 3,00,000/- (Rupees Three lakh) only to the complainant as compensation for severe loss of health of son of the complainant as well as for mental agony, harassment, tension caused by the OP no. 1 and OP no. 2.

The OP no. 1 and OP no. 2 are also directed to pay a sum of Rs. 10,000/-(Rupees Ten Thousand) only to the complainant as cost of the legal proceedings and the OP no. 1 and OP no. 2 are further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only to the Consumer Legal Aid Account of this Commission being a/c no. 34984097090 of SBI.

Let a copy of this final order be given to the parties free of cost.