SHYAMAL KUMAR GHOSH, MEMBER

1. The instant consumer case has been filed by the complainant against the opposite parties praying for certain reliefs which are reproduced as follows:-

“in the above premises it is therefore prayed that Your Lordship may be kind enough to admit this complaint and issue notice upon the opposite parties and after hearing be pleased to pass an order directing the opposite parties no 1 and 2 jointly and severally to pay a compensation to the tune of Rs.30,00,000/- to the complainant for his permanent loss of vision in her right eye, for committing medical negligence in performing cataract operation and may be further pleased to pass any such other orders, for the ends of justice.”

2. The factual matrix of the case is that the complainant was a very needy person having 90% disability and used to earn his livelihood by providing tuitions to the students. The complainant was suffering from difficulties in right eye vision and as such the complainant visited the chamber of the opposite party no – 1, Dr. Akshay Das under the medical institution of the opposite party no – 2, Vivekananda Netralaya, on 09/09/2017 for the first time. The opposite party no – 1 examined the eyes of the complainant and prescribed some eye drops and medicines to the complainant. The complainant purchased all medicines as per prescription dated 09/09/2017 issued by opposite party no – 1. After application of the medicines, the complainant realized that the vision of the right eye gradually deteriorated day by day. His right eye was swelling at that moment and  the complainant suffered  lot of pain in his right eye.
3. The complainant visited again the chamber of the op no – 1 on 14/09/2017. The op no -1 added a tablet in addition to the previous medicines and assured the complainant that his right eye would be cured obviously and got the same in normal position.  No fruitful result was come out after using the said medicines. The position of right eye vision became so worst and sometimes blood used to come out from the right eye.    The complainant could hardly have any vision in his right eye. The complainant again visited the chamber of op no -1. The op no – 1/doctor changed some medicines. After using the same, no progress was made. Rather various types of fluids were coming out from the right eye of the complainant. On the next date ie on 23/09/2017 the complainant visited further the chamber of the op no – 1 and after examination the op no – 1/doctor referred the patient/complainant to Kolkata for further treatment as the situation already created which was beyond the knowledge of the said doctor. The complainant went to Medical College Hospital/op - 3 forthwith wherein the complainant was treated in OPD on 25/09/2017. The medical prescription was issued to that effect wherefrom it was revealed that the patient/complainant was suffering from poor visual prognosis and fungal kelatitis.
4. Actually the right eye was affected with foreign body sensation resulting redness of eye and poor vision since 20 days. However, the op no – 3 advised the complainant to use some eye drops and medicines. Thereafter, the complainant used to visit the Hospital/op 3. Seeing the condition of the right eye, the op – 3 made a stitch the right eye of the complainant so that the fluids may not come out from the eye. Thereafter, the op – 3 cut the stitch of the right eye but they found no fruitful result. The complainant lost his vision in right eye at last.
5. It is the further case of the complainant that upon thorough searching it was discovered that the op no – 1 was a homeopathy doctor and he did not posses any degree of MBBS. Being a homeopathic doctor, he prescribed allopathic medicine. The doctor had no authority to prescribe allopathic medicine as well as had no authority to issue any prescription to the complainant. The said doctor violated medical protocol and due to his negligence the complainant lost his vision. There is clear gross negligence and fault on the part of the ops 1 and 2. Having no other alternative the complainant rushed to the Commission for getting proper relief/reliefs as prayed for.
6. The opposite parties 1 and 2 contested the instant case by filing written version stating inter alia that the medial issues involved in this case is of so complicated in nature that without any evidence of medical experts of specialized field it would not be possible for the ld Commission to decide the matter. The present consumer case has been filed by the complainant in order to malign the reputation of the opposite parties. The issues involved in this case are very complicated and as such the matter should be decided in Civil Court or any appropriate Court/Forum.    
7.  By filing written version it is stated that the opposite party no – 2 is a clinic which was established for the charitable purpose. This clinic tries to provide medical treatment to the poor and downtrodden people. Dr Haresh Shah, MBBS, DO who visited the place occasionally and the said clinic used to provide medical treatment to hear about 150 to 200 patients per day. It is not possible to see conducted every findings of the large number of patients by Dr. Haresh Shah, only MBBS doctor in the said clinic. At this juncture Dr. Akshay Dash, DMS tried to assist Dr. Haresh Shah. Dr. Akshay Dash used to take the verbal instruction of Dr. Haresh Shah and to write down the prescription.
8. By filing written version, the ops 1 and 2 states that patient was suffering from Hypopyon and to that effect the right eye of the patient became redness. It is a sign of inflammation of the anterior uvea and iris which is a form of anterior uveitis. A hypopyon should not be drained, because it offers protection against the invading pathogen due to the presence of white blood cells, although long standing hypopyon can cause close angle glaucoma and anterior synechiae. It is further stated that the treatment of Hypopyon depends upon the inflammation and cause of the condition. Experts believe the hypopyon should not be depleted from the eye as it provides protection to the eye.
9. The written version filed by the ops 1 and 2 states that in case of the complainant, the diagnosis of Hypopyon was correct and the same was diagnosed by the op no 3 which is clearly reflected in the page no – 20 of the petition of complaint wherein the op no - 3 drew a diagram and also mentioned the same complication which was already decided by the ops 1 and 2. Further more that the op no 3 used to continue  the same medicines viz moxifloxacin, Tobramycin, fluconazole and Atropine Sulphate for three months as was initially prescribed by the op no 2.
10. By filing written version, it is submitted that the complainant further visited the chamber of op 2 on 23/09/2017 and upon proper  and careful examination, the patient was referred to Susrut Eye Foundation at Kolkata for further treatment. The patient had further gone to the op no – 3 but the line of the treatment was very similar which was adopted by the ops 1 and 2.
11. There is no gross negligence and deficiency in service on the part of ops 1 and 2. Accordingly they prayed for dismissal of the petition of the complaint with exemplary costs.
12. No written version was filed by the op no – 3 and as such the matter was fixed for ex-parte against the Department of Health & Family Welfare, Medical College Hospital vide order no. 7 dated 16/01/2019.
13. The ld advocate appearing for the complainant argued that the op no -1/Dr.Akshay DAS is a homeopathic doctor and being a homeopathic doctor, he is not permitted to provide allopathic treatment to the complainant/patient causing clear gross negligence and deficiency in service on the part of the said doctor. The op no – 1 treated the complainant/patient at the Vivekananda Netralaya/op no – 2 herein. Ld advocate also argued that the op no – 2 is also liable for the unfair trade practice as the op no -1/doctor provided the medical treatment to the complainant/patient at this particular medical centre. The Ld. Counsel further added that the op no – 1 is a fake doctor as he has no MBBS degree and to that effect he had no power and authority to write down the prescription for allopathic medicine. Due to fault on the part of ops 1 and 2, the patient/complainant lost his right eye for ever causing gross negligence and deficiency in service on the part of the ops 1 and 2. Accordingly, the ld. advocate prayed for necessary order or orders so that the patient/complainant is entitled to get proper relief/reliefs as prayed for.
14. The ld. advocate appearing for the opposite parties 1 and 2 argued that as per accepted medical protocol the op no – 1 treated the patient correctly. Actually the complainant/patient was suffering from Hypopyon (redness of conjunctiva and the underlying episclera) and was diagnosed by Dr. Saha, MBBS, DO. The ld advocate also submitted that the treatment in the initial stage was done by using antibiotic creams, anti-tuberculosis drugs and antibiotics. Nevertheless, when the medication did not provide any fruitful results, corneal scraping was done in order to know the exact cause of the condition. In rare cases, when nothing worked out, the therapeutic corneal transplant was done as it is the last solution for curing the condition. Ld advocate also argued that the diagnosis of Hypopyon was correct and the same was also diagnosed by the op no – 3 which is clearly reflected in the page no – 20 of the petition of complaint. The doctor/doctors of the op no – 3 drew a diagram and mentioned the same complication as identified by the ops 1 and 2. The ld advocate further argued that the complainant visited the op no – 1 on 23/09/2017 wherein upon careful  examination the complainant/patient was referred to Susrut Eye Foundation, Kolkata which is a reputed hospital for eye treatment. However, the patient/complainant visited Govt Medical College ie op no – 3 herein and he was examined on 03/09/2017 therein but the patient/complainant totally suppressed the prescription issued by the op no – 3. The ld advocate appearing for the ops 1 and 2 further argued that as per medical books and journals, the proper treatment in respect of HYPOPYON was given to the complainant/patient but due to co-morbidity the complainant/patient did not get proper relief. The op/doctor maintained all accepted medical protocol. He tried to provide proper and standard care to the patient/complainant. There is no gross negligence and deficiency in service on the part of the ops 1 and 2 and accordingly the ld. advocate prayed for dismissal of the petition of complaint with exemplary costs.
15. We have heard the ld. advocate appearing for the complainant and the ops 1 and 2 at length and in full.
16. We have considered the submissions advanced by the respective parties.
17. We have meticulously perused the materials available on the record.
18. The hearing has been concluded.
19. It is fact that the complainant/patient has visited the chamber of Dr. Akshay Das for the first time on 09/09/2017 for treatment of his eye and Hypopeon, CU, has been diagnosed by the said doctor. More so he has prescribed some medicines along with eye drops in order to provide proper medical treatment towards the complainant/patient. Thereafter the complainant/patient has visited the chamber of aforesaid doctor on 14/09/2017, 22/09/2017 and 23/09/2017 which is clearly revealed from the two prescriptions filed by the complainant/patient.
20. We are very sure that Dr. Akshay Das has treated the complainant/patient as on the top of the two prescriptions, there is tick mark upon the name of Dr. Akshay Das though there is another Doctor viz Dr. Haresh Saha, MBBS, Cal, DO, Cal at the right side top of the aforesaid two prescriptions but there is no such tick mark upon Dr. H. Saha.
21. From the aforesaid two prescriptions it appears to us that Dr. Akshay Das/opposite party no – 1 herein is a homeopathic doctor/practitioner having the degree of DMS Cal and he used to practice at Vivekananda Netralaya, Daspur ie opposite party no – 2 herein.   
22. It is also fact that after using the medicines and eye drops prescribed by Dr. Akshay Das, the complainant/patient was not cured, the problem in the right eye was increased and as such Dr Das referred the complainant to Susrut Eye Foundation and Research Centre for the purpose of better treatment of the complainant which is clearly revealed from the prescription dated 23/09/2017 issued by Dr. Das.
23. We have meticulously perused the clinical notes along with advice given by the doctor, Dept of Health & Family Welfare, Govt of West Bengal wherefrom it appears to us that the complainant/patient has suffered from FUC of right eye fungal ulcer in a diabetic patient and to that effect various medicines along with eye drops have been prescribed in order to provide proper care and treatment to the complainant/patient. Thereafter the Govt doctor has referred the patient/complainant to cornea clinic (room no – 112.)
24. The complainant has filed series of clinical notes along with advice wherefrom it appears to us that the doctor of op no – 3/hospital has attended the patient/complainant carefully and prescribed necessary medicines. The ld advocate appearing for the complainant, in pursuant to the visiting date 25/09/2017, has brought to our notice that a foreign body sensation has been occurred in the right eye of the patient/complainant around 20 days back (03/09/2017) and in support of this remarks, ld advocate has argued that due to fault or negligence on the part of the ops 1 and 2 the patient/complainant has lost his right eye.  
25. From the forgoing discussions, the two pertinent issues have been raised in our mind that

(a) whether there is any gross negligence and deficiency in service on the part of the ops 1 & 2 or not and

(b) whether the ops 1 and 2 are entitled to prescribe allopathic medicine to the patient/complainant when the op no – 1 has been designated as a homeopathic doctor.

26. It has already been decided that Memo no – 12819 dated 28/09/2018 of Dept of Health & Family Welfare and Memo no – 12649 dated 24/09/2018 issued by Medical College & Hospital, Kolkata, would be taken into consideration at the time of final hearing and in pursuant to the above order, both the Memo has been taken into consideration at the time final argument. 
27. By virtue of Memo no – 12819 dated 28/09/2018, the MSVP, Medical College & Hospital, Kolkata has already transmitted a medical expert opinion in respect of CC no – 47/2018 to the office of the Registrar, SCDRC, West Bengal vide Memo no – 12649 dated 24/09/2018.
28. We have carefully perused the Memo no 12649 dated 24/09/2018 wherefrom it appears to us that on 09/09/2017 due to trouble of right eye, the complainant was treated at Vivekananda Netralaya, Daspur by Dr. Akshay Das. His treatment record reveals that corneal ulcer in his right eye has been developed. In comment, it is found that according to supplied documents related to his treatment, he was not wrongly treated. But the said expert report further reveals that Dr. Akshay Das is not a registered Medical practitioner to treat this case.     
29. Thus being the situation, there is no hesitation to hold that the op no – 1 Dr. Akshay Das has provided proper and correct treatment to the patient/complainant as per accepted medical protocol in view of aforesaid expert opinion. No wrong has been committed by him in respect of medical treatment. At this stage we can safely rely upon Hon’ble Apex Court in Bolam vs Friern Hospital Management Committee (known as Bolam Test) reported in 2005 3 CPR 70 (SC) wherein the Hon’ble Apex Court held that a doctor is not guilty of negligence if he has acted in accordance with a practice so accepted by a responsible body of medical men skilled in that particular art and Hon’ble National Commission in Reshma Devi Jadav and other vs Dr. (Mrs) Reeta Bagchi and others reported in 2016 1 CPR 557 (NC) wherein Hon’ble NCDRC has been pleased to hold that every medical fatality does not indicate negligence on the part of treating doctor. So regarding medical treatment, we find no gross negligence and deficiency in service on the part of the opposite parties no 1 and 2 herein. The issue  no 25 (a) as framed by this Commission is thus decided.
30. Upon careful perusal of the report vide no. 7037  C/03-2018 date 16.02.2018 issued by West Bengal Medical Council, it appears to us that Dr. Akshay Das does not hold any qualification to practice Modern Scientific Medicine but allegedly practicing in the same field.
31. In addition to that the aforesaid expert report clearly reveals that Dr. Akshay Das is not a registered medical practitioner to treat the patient/complainant and obviously this expert opinion goes against him as being a homeopathic doctor, the opposite party no – 1 has no authority to prescribe allopathic medicines in order to treat the patient/complainant. Actually each and every medical protocol should be followed by the doctors strictly for providing proper and actual medical treatment to the patient/complainant and if any doctor (allopathic or homeopathic whatever may be) is diverted from the said protocol,  the said doctor should be liable for his/her guilty.
32. Section 29 of the Bengal Medical Act, 1941 (Amended) clearly provides that if any person whose name is not entered in the register of registered medical practitioners falsely pretends that it is so entered or used in connection with his name or title any words or letters or number presenting that his name is entered, he shall, whether any person is actually deceived by such presentation or not, be punishable on conviction by a Presidency Magistrate or a Magistrate of the first class, with imprisonment which may extend to six months or with fine which may extend to five hundred rupees.  
33. Though the Commission is not entitled to punish the doctor under section 29 of the Act 1941 (Amended), yet on the ground of civil wrong and unfair trade practice the Commission has an ample authority to pass an order for compensation payable to the complainant/patient if the negligence or fault on the part of doctor is proved under Consumer Protection Act 1986.
34. On earlier occasions, the Hon’ble NCDRC has been pleased to hold that a homeopathic doctor is not qualified to prescribe allopathic medicines and will be liable for medical negligence. The doctor is held liable to pay compensation to the patient/complainant.
35. In the instant case the opposite party no – 1 viz Dr. Akshay Das being a homeopathic doctor, has prescribed and administered allopathic medicines to the patient/complainant causing clear case of medical negligence. Regarding this point the ops 1 and 2 both are liable and they are also responsible to pay compensation to the patient/complainant which comes well within the purview of committing civil wrong and unfair trade practice under the Consumer Protection Act, 1986. The opposite party no – 2 is also held liable to pay compensation to the patient/complainant as the op no – 1/Dr. Akshay Das being a homeopathic doctor used to look after the patients at the place of op no -2/Vivekananda Netralaya. So, the op no -2/Vivekananda Netralaya cannot escape from their liability. The issue 25 (b) as framed by this Commission is thus decided as per above observation.
36. Considering all aspects from all angles and keeping in mind the present position of law and regard being had to the submissions of ld advocates for both sides and citations of Hon’ble Commission we are of the view that the medical negligence on the part of ops 1 and 2 is proved and as such we are constrained to allow the instant consumer case against the opposite parties no 1 and 2 on contest and dismiss the same against the op no -3/(pro-forma opposite party) herein without any order as to costs. Hence

It is

                                              O R D E R E D

That the opposite parties 1 and 2 both are jointly and severally liable for their medical negligence and as such they are directed to pay compensation amounting to Rs. 20,00,000/- (twenty lakh) only to the patient/complainant within 45 days from the date of this order in default the whole awarded amount shall carry interest @ 10% pa till full realization.

No order of litigation cost is passed against the ops 1 and 2 as the instant consumer case has been instituted on behalf of the complainant from the Legal Aid Fund of this Commission.

In case of non-compliance of the aforesaid order from the end of ops 1 and 2, the complainant is entitled to put the order in execution in order to get proper relief.

No order is passed against the op no – 3 as there is no specific prayer/relief in the petition of complaint against the op no – 3.

The instant consumer case being no – 47 of 2018 is thus disposed of.

Note accordingly.