Date of Filing: 21-06-2016 Date of Final Order: 28-02-2018
Sri Asish Kumar Senapati, President
This is an application u/s 12 of the C.P. Act, 1986.
One Sandip Ghosh (hereinafter referred to as the Complainant) filed the case against Dr. Basudeb Halder and Pratistha Health Care (hereinafter referred to as the O.Ps) alleging medical negligence and deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant suffered injuries in his right hand and accordingly, he went to the OP No.1 at OP No.2 on 22.06.15 with complaint of severe pain in his right hand. After examination, the OP No.1 advised him to undergo x-ray (right elbow) for proper determination of bone condition as to whether right hand bones were fractured or not. The Complainant deposited consideration amount for his x-ray and received the x-ray report and x-ray plate on the same day with diagnosis “No bony or soft tissues abnormality present”. The report was given by the OP No.1. The condition of the Complainant deteriorated gradually at about 11 PM on 22.06.15 and he was unable to move his right hand. Ultimately, the Complainant went to Dr. B.N.S. Laguri on 23.06.15 and after going through the X-ray plate, Dr. Laguri observed that x-ray plate showed “Fracture at Radial Head”. Dr. Laguri prescribed some medicines and advised accordingly for healing up the injuries. The OPs were extremely negligent at every step and they were liable for medical negligence and deficiency in service. The cause of action arose on 22.06.15. The Complainant prayed for compensation for medical negligence, deficiency in service, compensation for mental pain and agony and litigation cost.
The OP No.1 put his appearance on 30.08.16 contending that the Complainant has no cause of action against the OP No.1. It is pleaded that the OP No.1 is a Consultant Radiologist, having Master Degree in Radio Diagnosis and he is attached with the OP No.2. It was asserted that the Complainant had been to the OP No.2 for x-ray of his right elbow on 22.06.15 and x-ray was done and a report had been supplied on examination of the x-ray plate and there was no abnormality noticed, for which it was noted “No bony or soft tissues abnormality present”. It may be stated that the patient did not give any history prior to such x-ray. It was emphatically denied by the OP No.1 that he advised anything to the Complainant and assured that no medicine was required or that his pain would automatically stop with the passage of time, as alleged. The OP No.1 denied that the Complainant suffered irreparable loss, mental pain and agony and stated that there was no deficiency in service on the part of the OP No.1. The OP No.1 has prayed for dismissal of the complaint with cost.
The OP No. 2 filed w/v on 09.08.16 denying the allegations against the OP No.2. It is the case of the OP No.2 that the OP No.2 a Medical Centre and x-ray, ECG, EEG etc. are done as per advice and prescription of the Doctors and also request of different patients. The OP No.1 is a Specialist in Radiology but he is not an employee of the OP No.2. The report of x-ray was issued by the OP No.1 on payment of his fees and the x-ray along with the report was handed over to the Complainant. It was denied that Dr. B.N.S. Laguri detected the fracture at radial head of the Complainant after going through the earlier x-ray plate. The OP No.2 had no negligence or deficiency in service. The OP No.2 has prayed for dismissal of the complaint with cost.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service / medical negligence, as alleged by the Complainant?
- Whether the Complainant entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point No.1.
The Ld. Agent for the Complainant has submitted that the Complainant is a consumer of the OPs as he hired the services of the OP Nos.1 and 2 on payment of charge. It was argued that the Complainant went to OP No.1 at OP No.2 on 22.06.15 and x-ray of his right elbow was done by the OP No.1 on receipt of payment.
In reply, the Ld. Agents for the OPs have submitted that the Complainant is not a consumer of the OPs. Perused the complaint petition, w/v, evidence, written argument and documents submitted by both sides.
On a careful consideration, we think that the Complainant hired the services of the OP Nos.1 and 2 on 22.06.15 on payment of charges. So, the Complainant is a consumer of the OPs. This point is thus disposed of.
Point No.2.
The Ld. Agent for the Complainant has submitted that the cause of action arose on 22.06.15 within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary jurisdiction of the District Forum.
In reply, the Ld. Agents for the OP Nos.1 and 2 stated nothing. After due consideration, we find that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of the District Forum. Hence, this point is answered in favour of the Complainant.
Point Nos.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant submitted that the Complainant had hired the services of the OP Nos.1 and 2 on 22.06.15 and the OP No.1 took the X-ray and on examination of the x-ray plate, reported that “No bony or soft tissues abnormality present” (Annexure-B). It was further contended that the x-ray plate dated 22.06.15 was examined by Dr. Subhasis Chatterjee, Radiologist, MJN Hospital as per direction of the Ld. Forum and submitted his report dated 22.08.17 stating that “Skiagrams of AP and lateral views of the elbow region show evidence of fracture at the head of the radius bone”. It was further argued that Dr. Subhasis Chatterjee was also cross-examined by the OP Nos.1 and 2 but nothing was elicited from the cross-examination to throw out his report dated 22.08.17. He further argued that the Complainant went to Dr. B.N.S. Laguri on 23.06.15 who also found fracture at the radial head on examination of the x-ray plate dated 22.06.15. He contended that the OP No.1 is liable for medical negligence and deficiency in service. He prayed for compensation for medical negligence and deficiency in service of the OP Nos.1 and 2 and also prayed for compensation for mental pain and agony and litigation cost.
In reply, the Ld. Agent for the OP No.1 submitted that the OP No.1 is a Master Degree holder in Radio Diagnosis and he submitted his report dated 22.06.15 on examination of the x-ray plate of the Complainant. He argued that the report of the OP No.1 in Pad of the OP No.2 is correct. He further contended that the Complainant had not stated any history at the time of x-ray. It was argued that the Complainant had not suffered any loss or mental pain and agony as the Complainant went to Dr. B.N.S. Laguri, an Orthopedic Surgeon on 23.06.15 who advised something to relieve the pain of the Complainant. It was further urged that Dr. Laguri found fracture at radial head on seeing the x-ray plate/report of the Complainant done elsewhere. It is argued that the report of Dr. Subhasis Chatterjee dated 22.08.17 is not at all acceptable as Dr. Chatterjee is having his Diploma in Radiology but the OP No.1 is having the Master Degree in Radio Diagnosis. It was urged that the OP No.1 had no medical negligence or deficiency in service. He prayed for dismissal of the complaint with cost.
The Ld. Agent for the OP No.2 has submitted that the OP No.1 is not a permanent employee of the OP No.2 and it is clear from the cross-examination of Dr. Subhasis Chatterjee dated 08.01.18 that the quality of the x-ray plate was good. It was contended that there was no deficiency in service on the part of the OP No.2. He prayed for dismissal of the complaint with cost.
Admittedly, the Complainant went to the OP No.1 on 22.06.15 at the OP No.2 for x-ray of his right elbow. The OP No.1 reported in his report dated 22.06.15 (Annexure-B) that “No bony or soft tissues abnormality present”. The OP No.1 prepared his report on the basis of x-ray plate of right elbow dated 22.06.15 (Annexure-A). Admittedly, the Complainant went to Dr. B.N.S. Laguri on 23.06.15 (Annexure-C) and Dr. Laguri found fracture at radial head on examination of the x-ray of right elbow of the Complainant. It is the case of the Complainant that the OP No.1 reported wrongly that there was no abnormality at his right elbow as per report dated 22.06.15 (Annexure-B) but it is the case of the OP No.1 that there was no abnormality in the right elbow of the Complainant as per x-ray plate dated 22.06.15 (Annexure-A). The Ld. Forum thought it necessary to examine the x-ray plate of the Complainant dated 22.06.15 by an expert to extract the truth whether there was any fracture at the radial head of the right elbow of the Complainant. On being directed, the Superintendent, MJN Hospital, Cooch Behar appointed Dr. Subhasis Chatterjee, a Medical officer (Radiologist) to examine the x-ray plate of right elbow of the Complainant dated 22.06.15. Dr. Chatterjee, Medical Officer (Radiologist) of MJN Hospital submitted his report on 22.08.17 stating that “Skiagrams of AP and lateral views of the elbow region show evidence of fracture at the head of the radius bone” (Annex.1). The said Doctor was also cross-examined by the Ld. Agents of the OP Nos.1 and 2 on 08.01.18. We have also gone through his report dated 22.08.17 and his evidence dated 08.01.18. On a careful consideration, we find nothing to disown the expert report dated 22.08.17. The report cannot be turned down on the ground that Dr. Chatterjee is having Diploma in Radiology and he cannot examine any x-ray plate as the report was given by the OP No.1, who is having Master Degree in Radio Diagnosis.
Moreover, Dr. Laguri, M.S. (Ortho) also observed in his prescription dated 23.06.15 that the x-ray plate of the Complainant showed fracture at radial head. Therefore, we have no hesitation to hold that there was fracture at the head of radius bone of the right elbow of the Complainant found in the x-ray plate dated 22.06.15 but the OP No.1 prepared his report (Annexure –B) in a very casual and negligent manner. We think that the report dated 22.06.15 (Annexure-B) given by the OP No.1 to the Complainant on the basis of x-ray plate dated 22.06.15 taken at the OP No.2 did not reflect correct state of affairs and it amounts to medical negligence and deficiency in service on the part of the OP No.1. The OP No.2 had nothing to do with the report signed by the OP No.1 and Dr. Chatterjee has stated during his cross examination on 08.01.18 that the quality of x-ray plate was good. We find nothing to hold that there is any deficiency in service on the part of the O.P. No.2. Therefore, we hold that the OP No.1 is liable for medical negligence and deficiency in service.
To our mind, the Complainant is entitled to get compensation for medical negligence and deficiency in service from the OP No.1 and he is also entitled to get litigation cost. The Complainant is not entitled to get any relief against the OP No.2. We think that compensation to the tune of Rs.20,000/- for medical negligence and deficiency in service will meet the ends of justice.
Reasons for delay : The case was filed on 21.06.16 and admitted on 04.07.16. The OP No.1 put its appearance and filed W/V on 30.08.16 and the O.P.No.2 filed W/v on 09.08.16. This Forum has taken endeavor to dispose of the case as expeditiously as possible as per Section 13(3A) of the C.P. Act, 1986 and reasons for delay has been explained in day to day orders.
In the result, the complaint case succeeds in part.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby allowed in part on contest against the OP No.1 with litigation cost of Rs.5,000/- and dismissed against the OP No.2 without any cost.
The OP No.1 is directed to pay compensation of Rs.20,000/- to the Complainant for his medical negligence and deficiency in service and to pay litigation cost of Rs.5,000/- to the Complainant by 45 days from the date of this order, failing which the OP No.1 is to pay Rs.50/- for each day’s delay and the accumulated amount is to be deposited in the State Consumer Welfare Fund.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
