O R D E R
PER SHRI. S.S.PATIL - HON’BLE MEMBER :
1) This is the case regarding alleged medical negligence against the Opposite Parties as they have not treated the Complainant properly.
The facts of the complaint as stated by the Complainant are that, he was suffering from throat problem since June, 2008. Therefore, he approached Dr. T.B. Ghosh of Kolkata for medical checkup in August, 2008. Dr. Ghosh diagnosed a Polyp in right vocal cord and advised the Complainant for surgery. For confirmation he consulted another Dr. Shri. S.K. Day of Kolkata. He also diagnosed the same ailment. Confirmed the same diagnosis and also advised surgery.
2) The Complainant has further stated that for surgery of Polyp he approached Opposite Party No.3 hospital. The Complainant knew Opposite Party No.2. Therefore, in Opposite Party No.3 hospital the Complainant showed all the medical case papers to Opposite Party No.2. Opposite Party No.2 examined the Complainant and diagnosed a ‘hanging tumor and advised surgery to remove the tumor. The Complainant agreed to the surgery. Opposite Party No.2 assured that he will arrange all the facilities and provide the treatment to the Complainant. Opposite Party No.2 fixed appointment with Opposite Party No.1 on 04/09/08. Opposite Party No.1 is the Cancer Surgeon. The Complainant has alleged that he was called at 7.00 a.m. on 04/09/08. Accordingly he reached at the hospital at 7.00 a.m. but he was kept waiting till 2.00 p.m.
At 2.00 p.m. he was taken in operation theatre for diagnosis by Direct Laryngoscope (DL). This process was to be done by Opposite Party No.1 in cooperation with Opposite Party No.2. The wife of the Complainant wanted to know as to what the Opposite Parties were going to do but nothing was explained to her.
3) After 2 hours the Opposite Parties came out of OT and informed the wife of the Complainant that operation of tumor was successfully done and the Polyp was removed. After this the Complainant was under impression that he would get relief from his throat ailment. However, after the operation, the Complainant developed chest pain, tongue irritation and the voice was not clear. This fact was brought to the notice of the Opposite Party No.1 & 2 but they took it very lightly. On 05/09/08, the Complainant developed severe chest pain and irritation but Opposite Party No.2 told that it was normal. The operation gave no relief to the Complainant.
4) On 08/09/08, the Biopsy Report was shown to Opposite Party No.1. he advised the Complainant to go to Kolkata and he would be all right within a week. It is alleged by the Complainant that the Complainant spent more than 32,000/- Rs. For medicine for this operation. The Complainant then came to Kolkata but the Complainant did not get relief from his ailments by the said alleged operation done by Opposite Parties. Therefore, on 13/09/08 the Complainant approached his previous Dr. Ghosh who informed the Complainant that the Polyp had not been removed and the alleged surgery has not been done. The other doctors from Kolkata also confirmed the above facts. Then Dr. Ghosh advised the Complainant that again the Complainant would have to go for surgery for the same problem. Then Opposite Party No.1 was contacted. The Opposite Party No.1 was made aware of the above facts but he blamed Opposite Party No.2 and explained that “during surgery, a pipe was left in the cord and thereafter, he could not see Polyp so the Polyp could have been left untouched.
5) The Complainant has further stated that condition of his throat was deteriorated day by day. The Opposite Party No.1 was contacted but he told that he had done what he had to do & thereafter flatly refused to talk & see Complainant again. The throat problem continued. Therefore, on 01/10/08 he contacted Dr. Bera, the ENT Surgeon from Kolkata. He also diagnosed the same problem and suggested the operation of Polyp in vocal cord. The operation was done on 28/01/09. Polyp was actually removed and the Complainant got relief. This relief could be obtained after the operation done by Opposite Party No.1 & 2 on 04/09/08 but inspite of the operation, the problem continued. The operation at Kolkata cost Rs.70,000/-. The Complainant has attached medical papers of Bele Vue Clinic at Kolkata where the second operation was performed. It is therefore, alleged by the Complainant that Opposite Party No.1 & 2 failed in operating on his Polyp and thus, there is deficiency in service on their part. The Complainant suffered mental agony, financial crises, etc. The Complainant has expend Rs.32,000/- for medicine and Rs.79,097/-for conveyance, lodging, food, etc.
6) It is also alleged that the Opposite Parties reduced the life span of the Complainant, caused injury to the throat. Original vocal cord has been destroyed. His business was adversely affected causing loss of Rs.8 Lacs. It is also alleged by the Complainant that he suffered mental agony, physical disability of vocal cord etc. for which he claimed Rs.9,30,000/-. Therefore, the Opposite Parties are liable to pay Rs.32,000/- towards expenses of medicine, Rs.79,097/- for expenses of conveyance, food & lodging etc., loss of income and cost of this complaint.
7) The Complainant has attached the xerox copies of the following documents in support of his complaint –
a) Diagnostic prescription of Prof. Dr. T.B. Ghosh & Dr. SK De, dtd.23/08/08, 27/08/08.
b) Photograph of vocal cord, bill dtd.27/08/08.
c) Bills issued by Jaslok Hospital& Medical papers dtd.04/09/08.
d) Histopathology Report dtd.05/09/08.
e) Prescription dtd.13/09/ of Dr. Ghosh.
f) Case papers dtd.01/10/08 of Dr.Bera.
g) Bill of Rs.6,000/- dtd.10/12/08 of Eko Heart Foundation Blood Report & Urine Report, dtd.16/12/08, Receipt dtd.29/12/08, 19/12/08, 19/01/09, Receipt dtd.03/01/09, 28/01/09, Bill dtd.29/01/09 of Belle Vue Clinic, Discharge Summary & Certificate Pathological Report dtd.04/02/09, 28/01/09, prescription dtd.14/02/09, Letter from Smt. Uma Pandey to Jaslok Hospital, Letter from Jaslok to Mrs. Uma Pnadey, Consent form Receipt dtd.04/09/08, Letter of Dr. Dasgupta dtd.09/04/08.
8) The complaint was admitted and notices were served on the Opposite Parties. Opposite Parties appeared before this Forum and filed their written statements, affidavits of evidence and written arguments wherein they denied the allegations of any deficiency and denied that the Complainant is entitled for any relief prayed for. The Opposite Parties have attached the papers of Jaslok Hospital, Belle Vue Clinic etc. regarding the treatment of the Complainant, letter from Smt. Uma Pandey, affidavits of experts.
9) We heard the Ld.Advocate of the Complainant and Ld. Professor Shri. G.N. Shenoy for the Opposite Parties. We also perused the papers submitted by both the parties and our findings are as follows –
10) The Complainant was operated for his thyroid problem in Opposite Party No.3 Hospital in 2006 in the month of June, since he had a throat problem. In August, 2008 also the Complainant had throat problem. Hence, he contacted Dr. T.B. Ghosh of Kolkata for checkup. Dr. Ghosh diagnosed the disease as Polyp in right vocal cord, and advised the Complainant for surgery. Therefore, the Complainant approached Opposite Party No.2. Opposite Party No.2 examined the papers of diagnosis from Kolkata & arranged the appointment the Complainant with Opposite Party No.1. Both Opposite Parties (Opposite Party No.1 & 2) have admitted that the name of the Complainant was admitted at last minute admission and it was expected that the Complainant might have to wait as per OT. availability till 2.00 p.m. on 04/09/08.
11) On 04/09/08, the Complainant was diagnosed in Opposite Party No.3 hospital by Opposite Party No.1. Opposite Party No.2 has given anaesthesia. As per the papers submitted by the Opposite Party No.1 himself, the post operative diagnosis was “Vocal Cord Nodule”. These papers show that there was a vocal cord nodule and Opposite Party No.1 by D.L. Scopy procedure removed the nodule and sent to Histopathology examination to ascertain malignancy in the vocal nodule. After this the Opposite Parties came out of the OT and told the wife of the Complainant that the operation has been done successfully. Anybody in place of the Complainant would feel that after the operation in Opposite Party No.3 hospital, by the eminent surgeon like Opposite Party No.1, he would get some relief. On 05/09/08, Histopathology Report ascertained that there was no malignancy in the vocal cord nodule. The Operation of (excision of) vocal cord Polyp (nodule) was done on 04/09/08 by the Opposite Parties. According to the Complainant on 04/09/08, the Opposite Party No.1 came out of the OT. After 2 hours and told the wife of the Complainant that the operation was successful. This created belief in the mind of the Complainant that the Polyp was removed and he would get relief from his throat ailment. On the contrary the Complainant developed chest pain, tongue irritation and the voice was not clear on 05/09/08. The above said symptoms became more severe. It was brought to the notice of the Opposite Parties but they said that it was normal. Again on 08/09/08, the Complainant had met the Opposite Party No.1. He advised the Complainant that the Complainant would be alright and he could go to Kolkata. Accordingly the Complainant and his wife came to Kolkata but the Complainant did not get any relief from his throat ailment. As there was no relief he again met Dr. Ghosh on 13/09/08 i.e. after 5th day after he met the Opposite Party No.1 & 2 as there was no improvement whatsoever in the throat ailment. Dr. Ghosh, after examining the Complainant told him that the Complainant again has to go for removal of the Polyp as the Polyp has not been removed. This was shocking to the Complainant. The Opposite Party No.1 has replied in his written statement that “Opposite Party No.1 met the patient (Complainant) and family. He went through the papers and record of previous doctors and previous investigations done. He noticed that the Complainant had hoarseness of voice. Opposite Party discussed with them what he planned to do i.e. DL Scopy, assess the lesion and biopsy it, as the primary aim was to get a diagnosis. However, the paper of Jaslok Hospital (Opposite Party No.3) dtd.04/09/08 clearly show “Excision of nodule send for HP
The Histopathlogy report shows –
Specimen – Biopsy from anterior commisure
Gross – The two soft oval whitish
bits aggregate to 1 c.m.
There is no evidence of malignancy
Diagnosis – Vocal Card Polyp.”
12) However, the Endoscopy Photography of Vocal Cord report of Dr. Ghosh of Kolkata, dtd. 13/09/08 i.e. after 5 days, shows again a vocal Poly P.
Surgical pathology report of Belle Vue clinic dtd.28/01/09 also shows the following –
Specimen :- Right side Vocal Cord Polyp
Diagnosis :- Bengin vocal nodule
Gross :- Tyny gray white tissue bit received.
From the papers dtd.13/09/08, 01/10/08 and 28/01/09 it is clear that there was a Polyp in (R) Vocal Cord and ultimately it was removed at Kolkata.
13) From these papers it is seen that the complete Polyp was not removed by Opposite Party No.1 on 04/09/08. The Complainant had come to Opposite Parties for removal of complete Polyp. The Opposite Parties did only a biopsy and did not remove the complete Polyp in the vocal cord. They neither told the Complainant that they have only done a biopsy and there can be a possibility of remaining a residual Polyp in the vocal card. There is nothing on record of the Opposite Party No.3 pointing to the fact that the Opposite Party No.1 has briefed the patient in this respect that he has done only a biopsy and there can be a possibility of remaining some part of Polyp in the vocal cord.
For the above shortcoming in the operation, we have minutely examined the explanation given by the Opposite Party No.1 in written statement. Opposite Party No.1 has stated in his written statement on page 6 that there is no written opinion by Dr. Ghosh that the Polyp has not been removed and surgery was not done by Opposite Party No.1. However it is seen from the papers of Dr. Ghosh’s Clinic, Belle Vue Hospital, Dr. Bera, and Dr. Day that the Polyp was there after surgery done on 04/09/08 and it was removed on 28/01/09. So this contention of Opposite Party No.1 that Dr. Ghosh did not give certificate that the Polyp has not been removed by the Opposite Party No.1, does not hold water.
14) The Opposite Party No.1 has further stated in his written statement that a sample of one c.m. was examined as per report. There is no doubt that a piece of one c.m. soft oval whitish bits aggregate was taken out by Opposite Party No.1 and sent for histopathological examination but it does not indicate that the Opposite Party No.1 removed the complete Polyp.
15) The Opposite Party No.1 has also stated that the Complainant was told that op No.1 would undertake only biopsy of Polyp and definitive treatment would be undertaken once the report was available. This contention of the Opposite Party No.1 is also not as per the papers and circumstances of this case. It is a fact that the Polyp on vocal cord has already been diagnosed at Kolkata before 04/09/08. The Complainant came to Opposite Parties for removal of the same. The Opposite Party No.1 should have decided to ascertain the malignancy of the Polyp. Accordingly the specimen of the Polyp must have been sent for the diagnosis of the malignancy of the Polyp. This does not mean that somebody has obstructed the Opposite Party No.1 from removal of the complete Polyp. Removal of the total Polyp was the cure on the throat problem. Now when the case of deficiency is filed against the Opposite Parties, Opposite Party No.1 is taking the stand that the Complainant was told that he (Opposite Party No.1) would undertake a biopsy only and definitive treatment would be undertaken later on. This is after thought explanation of Opposite Party No.1.
16) There is nothing on record to suggest that after the histopathology report, when it is confirmed that the Polyp was non malignant, the Opposite Party No.1 has explained to the Complainant that there is a possibility of Polyp remaining in vocal cord and it would be removed at Kolkata by any other Doctor. Therefore, from the averments made by Opposite Party No.1 only it can be ascertained that the Opposite Party No.1 could not remove the complete Polyp. Even he could not explain to the Complainant that if some remains of Polyp were there the Complainant should take steps to remove the residuals of Polyp at Kolkata.
17) It is also stated by the Opposite Party No.1 that “No assurance was given that he would remove the entire mass.” In this connection we carefully examined the Jaslok Hospital papers submitted by the Opposite Party No.1 itself. The paper is at Exh.‘B’ page 25.
In this paper it is clearly mentioned that –
Operative procedure executed ……..”Excision of vocal Cord nodule.
This clearly shows what was undertaken by the Opposite Party No.1. Excision of vocal cord nodule was undertaken by Opposite Party No.1. There is nothing mentioned that the Opposite Party No.1 would undertake only biopsy and not total excision. The contents of this paper clearly shows that the Opposite Party No.1 has undertaken total excision and not partial excision for only biopsy of Polyp as now claimed by him. This is clearly an afterthought defence of the Ld. Doctor.
18) The Opposite Party No.1 has also wrongly made a statement that the Complainant has resorted to falsehood in not disclosing that he was suffering from throat problem since 2008 and not from 2006. In this connect we have carefully gone through the entire complaint wherein the complainant has already stated that he knew Opposite Party No.2 as an operation was done in 2006 in Opposite Party No.3 Hospital. Therefore, it is the Opposite Party No.1 who has taken shelter of a falsehood and not the Complainant.
19) Further the Opposite Party No.1 has taken objection that if the grievances are genuine, the Complainant would have come to Forum earlier. In this case the complaint has been filed within time. Therefore, the wild allegation that the Complainant has filed complaint in order to extract money from Opposite Parties does not hold water.
20) In para 6 of the written statement of Opposite Party No.1 stated that “Opposite Party No.1 could remove around 1 c.m. of tissue without damaging the vocal cords. Post biopsy there was no visible polypoidal mass left back.” Here the Opposite Party No.1 has tried to state that there was no visible Polyp at the time of operation on 04/09/08 therefore, he could not remove the remaining Polyp. But the fact remains that the residual Polyp was detected by Dr. Ghosh on 13/09/08 i.e. after 5 days from the date, the Complainant had seen the Opposite Party No.1. At the same time the Opposite Party No.1 has taken stand that he has done biopsy only and not removed the complete Polyp. This is a contradictory stands taken by the Opposite Party No.1
21) The Opposite Party No.1 has also stated some medical considerations like what is larynx, Polyp, DL, Laser, etc. we carefully studied the same.
22) It is also the contention of the Opposite Party No.1 that he expressly gave no warranty or guarantee with respect to the results of the treatment. But, he was certainly supposed to remove the Polyp for which the patient (Complainant) had come all the way from Kolkata to Mumbai to do the same.
23) It is the contention of the Opposite Party No.1 vide para 24 of his written statement that he did the operation and at the end of it he could not see any left over Polyp like tissue.” “He has managed to remove whatever lesion that was visible.” Here the deficiency in doing the operation come to the surface i.e. the Opposite Party No.1 denies any lesion visible but on 13/09/08, Dr. Ghosh detects the Polyp. This certainly shows that the Opposite Party No.1 was unable to see the remaining lesion. Even after the operation i.e. on 04/09/08, the Opposite Party No.1 had seen the Complainant patient on 05/09/08 and 08/09/08 still he could not bother to take precaution again to examine the patient and particularly when the patient was complaining of throat pain, irritation of a tongue and chest pain and unclear voice. This is certainly a deficiency in the Opposite Party No.1’s service to the patient, a common prudent man can observe without any expert’s opinion and without going to the complexity of the medical terms as asserted by the Opposite Party No.1. In this respect the Opposite Party No.1 has admitted that on 08/09/09, when the Complainant met the Opposite Party No.1, that he has reassured the family that there was nothing to worry about and advised them to return to Kolkata. He has also admitted that after 2, to 3 weeks latter he started getting calls from the Complainant’s wife at odd hours and she informed him about the residual lesion seen by the ENT. Surgeon at Kolkata. He again reaffirmed that the DL Scopy is basically an investigative procedure for assessing and taking biopsies. The final line of treatment depends on histopathology of the lesion. But here in this case in hand the histopathology report was available on 05/09/08. But without deciding anything the Opposite Parties directed the Complainant and his family members to go to Kolkata. Without confirming whether there is any lesion left behind. This is the deficiency in service on the part of Opposite Parties.
24) The Opposite Party No.1 has also stated in his written statement that he has explained to the Complainant and family that “the part of lesion may deeping sub- glottis or covered by minimal oozing following biopsy or obstructed by endotracheal tube is not visible to the surgeon and therefore, can remain back.” In this respect it is really shocking that a surgeon is hiding behind such excuses when the patient was available and met him on 05/09/08 and 08/09/08, he could have confirmed the residual Polyp by avoiding the oozing etc. But in reality the Opposite Party No.1 has directed the Complainant to go to Kolkata and not to worry at all particularly when the pain was not reduced a bit less.
25) In para 7 of the written statement the Opposite Party No.1 states that “Opposite Party No.1 also told them that as the histopathology confirmed that it was benign and ENT surgeon they had consulted was senior and competent, they could have the excision done in Kolkata. Also if they decided to come to Mumbai, Opposite Party No.1 would do the needful.” In fact the Complainant and his wife had come to Mumbai on 03/09/08 for removal of Polyp only alongwith biopsy procedure. Certainly they had come to complete treatment and not only the biopsy test only. The fact is that the Complainant had come to Opposite Parties for removal of the Polyp in vocal cord and ascertain whether the Poly P is benign or malignant. It will be more appropriate to say that the Complainant had come to Opposite Parties for treating his throat ailment completely. But the Opposite Party No.1 only performed DL Scopy to determine the malignancy and by mistake or negligence some part of benign Polyp residue remained behind. The Opposite Party No.1 could not remove the complete Polyp as the same was detected by Dr. Ghosh on 13-09-08 and on 01-10-08 and removed on 27/28-01-09.
26) In para 29 of the written statement, the Opposite Party No.1 has admitted that Dr. Ghosh’s prescription mentions “incomplete removal” (Exhibit ‘D’ of the written statement). This remark alongwith the diagram shown in the prescription document clearly shows that the vocal Polyp – “incomplete removal” (i.e. the Polyp is removed incompletely). This shows that even after the operation done by the Opposite Parties, some part of the vocal Polyp remained which was to be removed.
27) The Opposite Party No.1 has also come to the conclusion that the problem faced by the Complainant was not critical and the Complainant had no debilitating illness pain, etc. as the Complainant has been bearing this Polyp for 135 days (the Polyp was confirmed on 13/09/08 and it was completely removed on 28/01/09). This conclusion of the Opposite Party No.1 being a Doctor seems to be absurd. The remains of Polyp though benign, are the abnormal mass causing abnormality in the vocal cord and in the throat, consequently causing severe pain to throat. For this ailment the Complainant has shown himself to Dr. Ghosh, to Dr. S.K. Day and to Opposite Parties. The Complainant must have sustained the pains of this tumor like mass in his throat. Therefore, to say that the problem was not critical and he had no debilitation illness, pains, etc. is inhuman.
28) The Opposite Party No.1 has commented on the pathological report dtd.04/02/09 – It shows that tiny gray white tissue bit received. “This shows that a very tiny piece of tag was removed in surgery of 27/28-01-09. This interpretation of Opposite Party No.1 made the tiny piece –very tiny in his written statement. The actual mass might be bigger than the sample. So the interpretation of Opposite Party No.1 in respect of the size of Polyp removed is not accurate.
29) However, the amount of Rs.32,000/- spent by the Complainant for surgery done by Opposite Party No.1 and Opposite Party No.2 in Opposite Party No.3 was as per the schedule of Opposite Party No.3 and Opposite Parties have nothing to do with the expenses of Rs.79,097/- (amount of Rs.79,097/- incurred such as lodging, travelling, boarding, etc.). The Complainant is not entitle to these amounts as they had come to Opposite Party No.3 for the operation. Opposite Party No.1 & 2 performed biopsy on them and for that they incurred the said expenses. Therefore, Opposite Parties are not liable to reimburse the said amount to the Complainant.
30) The Complainant has also not given any evidence to show that the Opposite Parties have reduced the life span of the Complainant. The Complainant has also not adduced any evidence to show that Opposite Parties caused any injuries to the throat of the Complainant, nor the Complainant has given any proof that he lost a business Rs.8 Lacs due to the act of the Opposite Parties. These are the wild allegations without any proof. The prayer for the compensation of Rs.9,30,000/- for causing mental agony is also exorbitant not just and proper as compared to the deficiency in service.
31) The Opposite Party No.1 has filed the expert opinion of Mr. M.R. Kamat in support of his written statement. Dr. Kamat is also a Cancer Surgeon at Opposite Party No.3 Hospital i.e. Opposite Party No.1, 2 and this Ld. Expert are the colleagues. We have gone through this written opinion. This opinion is in corroboration with the written statement of the Opposite Party No.1 and further stated that after the receipt of biopsy report, “Opposite Party No.1 adopted a wait & watch policy and assured the Patient that he can follow up at any time if he had a problem.” 2 weeks later an ENT Surgeon at Kolkata had allegedly seen a tiny residual tag. The same was removed by the Surgeon at Kolkata. The expert has also stressed the etiology of change of voice. The expert has also stated that the Complainant was a chronic smoker. So there was a possibility at cancer and therefore, it should be ascertained first so biopsy was undertaken. A small portion of lesion is removed and sent to histopathology. During biopsy the entire lesion may not be removed. After biopsy definitive line of treatment is determined. In the instant case there was no assurance given that the entire lesion would be removed. Dr. Kamata is an expert and third party, then how can he opine that no such assurance was given to the Complainant ? He was not present when the Complainant approached Opposite Party No.1. The expert cannot form his opinion in this respect by perusing the papers and there is nothing in this respect in the papers of Opposite Party No.3.
32) The expert has also opined that a tiny tag can be left behind when the same is invisible. This can happen anywhere in the world and cannot be considered to be a deficiency in service. The invisibility is described by the expert as per the cause given by the Opposite Party No.1 in his written statement.
33) The expert has also opined that during biopsy, generous excision of vocal cord is avoided as it may damage the vocal cord. The same procedure was done by the Opposite Party No.1 also endorsed that no protocol was violated. Dr. Dalal (Opposite Party No.1) has done surgery exactly as required by text book of surgery.
34) Opposite Party No.1 has also filed an expert opinion of Dr. Probodh Karnik an ENT Surgeon. He has also corroborated the written statement. In addition to it he has averred that the Complainant was having long standing history of smoking. There is nothing on record that the Complainant was having long standing history only the word chain smoker does not mean that he was having long standing history. Nobody knows except the Complainant as from what time he is smoking. This denotes only present status of smoking and not the history. Therefore, the opinion in this respect is not based on the facts. He has further opined that “Dr. Dalal correctly suspected possible cancer and suggested biopsy to prove the diagnosis. The Polyp was benign, then what was the treatment, the Opposite Party No.1 has instituted ? From the papers it is seen that no further treatment was instituted and the Complainant was directed to go to Kolkata where the residual Polyp was detected.
Shri Karnik has opined that - a) There was a possibility of cancer.
b) Therefore biopsy is planned.
c) Bit of tissue as reported was removed.
d) Entire lesion may not be removed.
e) A tag on vocal cord may represent part of original
Polyp. It could also represent new lesion or
granuloma specially if the patient has not ceased smoking.
In this respect the opinion at ‘e’ important. The expert has opined that the tag on vocal cord may represent part of original Polyp. This indicates that the whole Polyp was not removed on 04/09/09 even on 05/09/09 and on 08/09/09. The residual Polyp was detected on 13/09/09. The Ld. Expert did not opine whether a new Polyp can recur within 5 days after 08/09/08 when he states that “it could be a new lesion or granuloma especially if the patient has not ceased smoking.”
35) The Opposite Party has also filed expert opinion of one Dr. Vasumati Divekar an anesthetist who has opined in respect of aenesthesia given to the Complainant at the time of operation in Opposite Party No.3 hospital on 04/09/09. She has opined that there was no negligence in giving anesthesia.
36) Opposite Party No.3 also submitted its written statement alongwith affidavit of evidence wherein it denied the allegations of deficiency in service on its part as it clarified that the Complainant was not admitted in the hospital but he was called as an out patient for investigation only and not for treatment. But the point remains that the Complainant was operated on 04/09/08 in Opposite Party No.3.
37) The Opposite Parties has also cited the important judgements like 1) Jacob Mathew V/s. State of Punjab 2005(3) CPR 70 (SC), 2) Mrs. Kiran Bala Raut V/s. Chritian Medical Collage 2003 (1) CPR 238 (NC), 3) 2004 (2) CPR 45 (NC) Inderjeet Singh V/s. Jagdeep Sing 4) INR 994 Supreme Court Civil Appeal 994/72, 5) Appeal No.4/93 Ramjilal V/s. Sarvoday Medical, 6) New India Assurance Co. Ltd. V/s. Purushottam Gokuldas Match Co. However, the facts of the case in hand are not similar to those in the above cases and the principles enunciated in those cases are not applicable to the case in hand.
38) Therefore, from all these contentions of all the parties it is clearly seen that the Complainant had been to Opposite Party No.3 for removal of his vocal cord Polyp. Opposite Party No.1 performed biopsy only by DL Scopy. Opposite Party No.2 administered an aenesthesia to the Complainant. Opposite Party No.2 is an aenesthesit only. His role is to administer aenesthesia. There is no negligence in giving aenesthesia to the Complainant. The Complainant has not established any deficiency in service against Opposite Party No.2. Therefore, Opposite Party No.2 is not liable for any relief claimed by the Complainant. However, Opposite Party No.1 was certainly negligent in removing the complete vocal cord Polyp in Opposite Party No.3 Hospital on 04/09/08, 05/09/08 and 08/09/08 as it is observed in para 23& 24 above. The Opposite Party No.1 being an eminent Doctor of Opposite Party No.3, Opposite Party NO.3 is also liable for the deficiency.
39) However, the following allegations of the Complainant are not substantiated for want of proof.
a) That the Complainant was kept waiting from 7.00 a.m. to 2.00 p.m. This may be possible because of the earlier appointments of the patients for the surgery.
b) The Complainant has further alleged that the 2nd operation was done at Kolkata on 27/28-01-09 for which he incurred expenditure of Rs.70,000/-. We find the bills of Rs.63,760/- only and not of Rs.70,000/-. Similarly the Complainant has alleged that there was expenditure at Opposite Party No.3 Hospital to the tune of Rs.32,000/- but actually the expenses of Rs.19,400/- are on record. The Complainant has also averred that an expenditure of Rs.79,097/- was incurred towards conveyance, food, lodging, etc. but the Complainant has not given details of these expenditure.
c) There is noting on record to show that the life span of the Complainant was reduced on account of deficiency in service on the part of Opposite Party No.1.
d) There is nothing to show that there was injury to his throat and original vocal cord is destroyed.
e) The Complainant has also not established as to how he sustained a business loss of 8 Lacs. He has not given details of this loss.
40) Certainly because of the deficiency in service as observed earlier, the Complainant must have suffered mental agony and physical harassment as well as financial loss and inconvenience as he had undergone vocal cord operation twice for the same cause and for that reason he must be compensated by the Opposite Party No.1 and Opposite Party No.3 jointly and/or severally as he had to expend Rs.63,760/- at Kolkata at Hospital Belle Vue Clinic. In our candid view the Complainant is not liable for the expenses incurred at Jaslok Hospital (Rs.32,000/- as claimed by the Complainant) as he was attended at Jaslok Hospital on 04/09/08 and D.L. Scopy was performed on him and report was handed over to him and the charges were as per the schedule of the hospital and it not established that they are exorbitant. However, as the complete Polyp was not removed, by Opposite Party No.1, the Complainant was not properly briefed about the Polyp operation. The Complainant had to undergo 2nd operation for the same cause. For that he had suffered mental agony and inconvenience. So he is liable for a reasonable compensation of Rs.25,000/- for mental agony and inconvenience caused to him. He was also liable for the refund of Rs.63,760/- as he had to shell out for 2nd operation which could have been performed by the Opposite Party No.1
The Complainant is also entitled for the cost of this complaint. Therefore, in view of the above findings we pass the order as follows -
O R D E R
1. Complaint No.96/2009 is partly allowed.
2. The Opposite Party No.1 & 3 are jointly and severally liable for deficiency in service.
3. Complaint against Opposite Party No.2 is dismissed.
4. Opposite Party No.1 & 3 are directed to pay jointly and/or severally Rs.25,000/-(Rs.Twenty Five Thousand Only) to the Complainant as compensation for mental agony and physical harassment caused to the Complainant due to deficiency in their service.
5. Opposite Party No.1 & 3 are directed to pay jointly and/or severally Rs.63,760/-(Rs.Sixty Three Thousand Seven Hundred Sixty Only) to the Complainant as expenses incurred by him at Belle Vue Clinic, Kolkata due to deficiency in service on their part with interest @ 9% p.a. since 06/02/2009 till its payment.
6. The Opposite Party No.1 & 3 are also directed to pay jointly and/or severally Rs.5,000/-(Rs.Five Thousand Only) to the Complainant toward cost of this complaint.
7. Opposite Party No.1 & 3 are also directed to comply with the above said order jointly and/or severally within 30 days from the receipt of copy of this order.
8. Certified copies of this order be furnished to the parties.
