IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.

                CASE No.  CC/98/2015.

 Date of Filing:                 Date of Admission:                Date of Disposal:

    03.08.15                                       30.12.15                                 26.09.22

Complainant: Md. Ishaque Ali

S/O Ajijul Haque, Vill & PO. Moktarpur,

PS. Islampur, Pin-742302

-Vs-

Opposite Party: Dr. Bibhas Mukherjee, M.B.B.S. (CAL), M.S. (CAL)

Medical Officer, Lalbagh S.D. Hospital,

Rainbow Nursinghome, 277, Vivakananda Road. (Ratanpur),

 Vill- Golapbagh, Lalbagh, PO & PS. Murshidabad, Pin- 742149

Agent/Advocate for the Complainant                        : Firdous Wahid.

Agent/Advocate for the Opposite Party                     : Siddhartha Sankar Dhar.

   Present:   Sri Ajay Kumar Das………………………….......President.     

        Sri. Subir Sinha Roy……………………………….Member.                        

                     Smt. Aloka Bandyopadhyay……………………..Member.

FINAL ORDER

   Sri.ajay kumar das, presiding member.

  This is a complaint under section 12 of the CP Act, 1986.

             One Ishaque Ali (here in after referred to as the Complainant) filed the case against Dr. Bibhas Mukherjee (here in after referred to as the OP) praying for compensation alleging deficiency in service.

    The material facts giving rise to file the complaint are that:-

            The Complainant is a permanent resident of the address stated above and he is a student and he has been continuing his studies with efficiency in the last part of August, 2014. The Complainant had sudden attack of Choleli thiasis and therefore, he went to OP for treatment and the OP advised him to undergo operation and as such the Complainant took admission at Rainbow Nursing Home. The OP performed operation of the Complainant on 03.09.14 and he was discharge on 09.09.14 and then again on 16.09.14, the Complainant suffered to much problem and then the Complainant went to the OP who advised him to take Amikacin injection and thereafter, on administering of the injection the Complainant noticed that he cannot hear properly and he has become almost deaf and as soon the matter was detected, the Complainant then informed the matter to the OP but the OP did not pay attention to that and thereafter, the Complainant visited the chamber of Dr. N.D. Biswas on 08.10.14 and Dr. N.D. Biswas opined that it was a case of drug toxicity and thereafter, the Complainant underwent treatment before professor Dr. S.P.Bera, M.S. Department of ENT at Calcutta Medical College who also detected the loss of hearing followed by injection and thereafter, the Complainant went to Christian Medical College Vellore wherein the Complainant had been advised to undergo Sophisticated ear surgery, unilateral Cochlear implant Surgery and estimated cost was informed to be up to Rs.12,00,000 and H.R CT Charge, Hospitalization and Auditory verbal therapy of Rs.2,50,000/-. Thereafter, the Complainant again visited the chamber of the OP but he did not pay any heed to that. The Complainant has become deaf due to negligence and careless treatment of the OP and future of the Complainant has become ruined as a consequence of becoming deaf and dump due to careless and deficiency of proper service and wrong treatment for which the Complainant has been undergoing mental pain and agony. Therefore, the Complainant finding no way out under compulsion filed this case before this Forum due to deficiency of service praying for proper relief and redressal.

      Defence Case

             The OP is contesting the case by filing written version stating inter alia that the case is not maintainable. The OP do not believe that any other Doctors passed any opinion that due to wrong treatment of the OP the petitioner had lost his hearing ability and that if there be any such opinion those opinion are baseless. The OP is an experienced laparoscopic and General Surgeon having qualification of MBBS and MS.

            The injection Amikacin was used for prevention and treatment of a Dirty Surgical site infection along with a Second/Third generation oral cephalosporin (Cefuroxime/Zostum-o). Following a Cholecystectomy for a gangrenous perforated Gall Bladder with purulent collection surgical sites gets infected with both Gram Positive ( Staph aureus, S. epidermidis, S. Pyogenes) and Gram Negative ( E.Coli, Klebsiella, Proteus etc.) bacteria. As the pus culture report was negative in this case so we have to depend on the Emperical Antibiotic Regimen with both Gram Negative Coverage (with Injection Amikacin) and Gram Positive coverage with Second/Third generation Cephalosporin. Healing of the surgical site of this patient proved the efficacy of the antibiotic Regimen.

            Though Injection Amikacin is known to cause Ototocicity along with many other possible adverse effects as like any other drugs, but in such a lower dosage and for such a short duration of treatment Injection Amikacin is very unlikely to cause irreversible cochlear damage, it may be sequel of any other illeness like any viral infection or any neurological illness. None of the experts the patient consulted had given confirmed opinion regarding Injection Amikacin as the etiology of the patients impaired hearing and the Doctors of CMC Vellore even did not mention the underlying etiology of the patients impaired hearings.

            The OP always took care of the Petitioner. He has such degree of skill which a Medical Practitioner is expected to possess and the OP exercised his skill.

            In the instant case there is no  question of overdose of antibiotic. There is no known antibiotic drug in medical science, which has no side effect. So mere impairment in hearing (as alleged) does not prove the negligence of the Doctor. It is the duty of the Doctor, to control infection and also to save the life of the patient. The OP had done the same with integrity and with competence.

            Accordingly the case is liable to be rejected.

            He is now attached with Health Dept. of Govt. of West Bengal.

        On the basis of the complaint and the written versions the following points are    framed for proper  adjudication of the case :

Points for decision

1. Isthe Complainant a consumer under the provision of the CP Act, 1986?

2. Has this Forum jurisdiction to entertain the complaint?

3. Has the OP any deficiency in service, as alleged?

4. Is the Complainant entitled to get any relief, as prayed for?

Decision with Reasons:

Point No.1

       This point is not challenged either at the written version or at the time of hearing of argument. Moreover, facts and circumstances suggest that the Complainant is a consumer. This point is thus decided in favour of the Complainant.

Point Nos.2,3&4

Ld. Advocate for the Opposite Party submits that it is the case of the Complainant that he had sudden attack of Cholelithiasis and therefore he went to the O.P/ Doctor for treatment and the O.P. advised him to undergo operation and as such the Complainant took admission at Rainbow Nursing Home on 02-09-14. The O.P performed operation of the Complainant on 03-09-14 and he was discharged on 09-09-14.

            The point to be noted is that the above fact is admitted. However, we peruse the “Patient Discharge Report” issued by Rainbow Nursing Home and find that the above fact is correct.

            It is the further case of the complainant as per complaint that again on 16-09-14 the complainant  suffered too much problem and then he went to the O.P. who advised him to take Amikacin injection and thereafter, on administering of the injection the complainant noticed that he could not hear properly and he has become almost deaf and as soon as the matter was detected, the complainant informed the matter to the O.P. but the O.P. did not pay attention to that.

            Ld. Advocate for the O.P. submits that as per complaint, the complainant went to the O.P on 16-09-14 and the O.P prescribed for Amikacin injunction but in fact the O.P prescribed for Amikacin injunction on 22-09-14.

On this point, Ld. Advocate for the complainant submits that it is admitted position that the O.P prescribed for Amikacin injunction. Moreover, the complainant has stated in his evidence to the effect, “ That on 16-09-2014 I again fell ill and suffered too much problem due to such operation and again I went to the Opposite Party for treatment and he prescribed me one Amikacin injection.” This Part of evidence makes it clear that on 22-09-14 the O.P prescribed for Amikacin injunction.

            After hearing both sides, we peruse the Medical prescription dated 16-09-14. We find that the O.P./ Doctor Bibhas Mukherjee issued the said prescription on 16-09-14 and 22-09-14 and on 22-09-14 he prescribed for Amikacin injection. Moreover it is admitted position that the O.P./ Doctor prescribed for Amikacin injunction. So this point is not required to be discussed further.

            Ld. Advocate for the complainant submits that it is the further case of the complainant that on administering of the injunction, the complainant noticed that he could not hear properly and he has almost become deaf and as soon as the matter was detected, he informed the matter to the O.P. but the O.P. did not pay any attention to that.

            On this point, Ld. Advocate for the O.P submits that the complainant visited the chamber of the O.P. on 27-10-2014 when his wound was completely healed and he was free from any complain. He drew our attention to the evidence of the O.P wherein in para 10 of his evidence it is mentioned, “ He last visited my chamber on 27-10-2014 when his wound was completely healed and he was free from any complain.”

            After hearing both sides we peruse the materials on record such as (1) the fact that the complainant visited  Dr. N.D. Biswas regarding hearing problem on 08-10-2014, (2 ) the fact that the complainant on 01-12-14, visited professor Dr. S.P. Bera, M.S. Department of E.N.T. at Calcutta who also detected the loss of hearing followed by injection, (3 ) the fact that the complainant on 13-04-15,went to Christian Medical College Vellore where the complainant has been advised to undergo Sophiticated ear surgery, unilateral  cochlear implant surgery, etc. These facts  clearly indicate that the complainant could not hear properly and he has almost become deaf and as soon as the matter was detected, he informed the matter to the O.P. but the O.P. did not pay any attention to that.

The reason behind is that the dates  i.e., 08-10-14, 01-12-14 & 13-04-15  and the facts mentioned above clearly falsify the statement of the O.P that the complainant last visited the  chamber of O.P on 27-10-2014 when his wound was completely healed and he was free from any complain. On the contrary the allegation of the complainant to the effect that he could not hear properly and he has almost become deaf and as soon as the matter was detected, he informed the matter to the O.P. but the O.P. did not pay any attention to that,is believable and as such the conduct of the O.P./ Doctor shows his negligence. As the negligence is regarding medical treatment, so it tantamount to medical negligence.

            It would not be out of place to mention here that it is the natural human conduct that any patient who suffers from any treatment of a doctor, must visit the said doctor for the purpose of informing the problem suffered by him. In the instant case, the complainant did so.

            Ld. Advocate for the complainant submits that it is the further case of the complainant that thereafter, on 08-10-2014, the complainant visited the chamber of Dr. N.D. Biswas who opined that it was a case of drug toxicity.

            Ld. Advocate for the O.P. submits that he has stated in para 10 of his written version that though Amikacin is known to cause ototoxicity along with many other possible adverse effects as like any other drugs but none of the experts had given confirmed opinion regarding Injection Amikacin as the etiology of the patients impairing hearing and the Doctors of C.M.C Vellore even did not mention the underlying etiology of the patient’ impaired hearing.

            We peruse the prescription dated 08-10-2014 of Dr. N.D. Biswas who advised “stop Amikacin Injection” and he has also opined “drug toxicity”.

            The complainant underwent treatment before professor Dr. S.P. Bera, M.S. Department of E.N.T. at Calcutta.

            We peruse the prescription dated 01-12-2014 of Dr. S.P.Bera who has written “ Drug Toxicity”  in the case history portion.

             It is the further case of the complainant as per complaint that thereafter, the complainant went to Christian Medical College Vellore where the complainant has been advised to undergo Sophiticated ear surgery, unilateral  cochlear implant surgery and estimated cost was informed to be upto 12,00000/- (Twelve Lakh only ) and H.R.T.C charge, Hospitalosation and auditory verbal therapy of Rs. 2,50,000/- ( two lakh and fifty thousand only ).

            In support of the above fact, the complainant has submitted the relevant papers  such as medical report of CMC Vellore and estimated cost of CMC Vellor. We peruse the said papers.

            It is admitted by the O.P. that though Amikacin is known to cause ototoxicity along with many other possible adverse effects as like any other drugs. In the instant case, the fact is in existence to the effect is  that the complainant suffered from loss of hearing due to drug toxicity. So we have no doubt that the complainant suffered from loss of hearing due to drug toxicity followed by Amikacin Injection.

            It would not be out of place to mention here that expert opinion is not a substantive piece of evidence and it is corroborative in nature. Considering the existing facts and circumstances and the fact of admission regarding the possible adverse effects, we have no hesitation to hold that the complainant suffered from loss of hearing due to drug toxicity followed by Amikacin Injection, particularly when we find that the contents of the Prescriptions of the Doctors namely, Dr. N.D.Biswas& Dr. S.P. Bera and the audiogram report of CMC Vellore support the case of the complainant.

            Further it would not be out of place to mention here that the standard of proof in such a proceeding is preponderance of probability and not beyond reasonable doubt.

            Ld. Advocate for the O.P. submits that there is no known antibiotic drug in medical science, which has no side effect. So mere impairment in hearing ( as alleged) does not prove the negligence of the Doctor. It is the duty of the Doctor to control infection and also to save the life of the patient.

            Ld. Advocate for the complainant submits that the doctor did not inform the patient regarding serious adverse effect of the Amikacin Injection. So it is clear case of gross negligence on the part of the Doctor concerned.

             It is held in Malay Kumar V. Sukumar Mukherjee (2009)9 SCC 221 that not only in surgery but even in those cases where the medicine prescribed has some adverse effect or some reaction, that should be informed to the patient.

            In the instant case, we find that it is the case of the  O.P./ Doctor  that he did the same with integrity and with competence. It is not mentioned either at the written version or at the time of hearing argument that the patient was informed about the adverse effect of Amikacin Injection.

            The Court held that consent given by a patient for excision biopsy cannot, by inference, be taken as an implied consent for a surgery, save in exceptional cases. Further, the court held that once a prima facie case of negligence is established, the burden of proof shifts on the doctor/ Hospital.-    Nizam Institute of Medical Science V. Prasanth S. Dhananka&Ors, - 2010 ACJ 38.

Ld. Advocate for the O.P. submits that to prove the case, the complainant ought to have produced earlier audiogram report and after treatment latest audiogram report. In support of his contention he cited a decision of the National Consumer Disputes Redressal Commission, New Delhi reported in ShivajiBasu ( DR.) v. Devapriya Ghosh &Anr – 1(2014) CPJ 602 [(NC).

             Ld. Advocate for the complainant submits that it is the specific case of the complainant that his hearing was impaired after the operation. So the question of earlier audiogram report does not arise.

            After hearing both sides we peruse the materials on record such as the prescription of Dr. N.D. Biswas, the prescription of Dr. S.P.Bera and the audiogram report of Christian Medical College, Vellor-4 wherein it is mentioned : “ Audiogram Report : Right severe sensorineural hearing loss.

            Left moderately severe to severe sensorineural hearing loss.”

            Considering the above facts and considering the successive steps of the complainant regarding treatment for hearing loss grow confidence in our mind that the complaint lost his hearing for administering Amikacin Injunction on him.

It would not be out of place to mention here that O.P/ Doctor has stated in para 3 of his evidence that the complainant, Md. Ishaque Ali presented to him on 23-08-2014 with complain of pain Epigastrium since 22-08-2014. This fact is the clear indication that the complainant did not suffer from any hearing problem before operation or before the taking of Amikacin Injection.

              Ld. Advocate for the O.P. submits that the Doctor/ O.P. is not bound to inform the patient regarding the sight effect of Amikacin Injection. He cited the same decision [ – 1(2014) CPJ 602 (NC). ] in support of his contention.

            In the cited decision, it was observed that complainant’s treatment by Amikacin did not impair his hearing. But in the instant case, there are sufficient materials to satisfy the complainant’s case to the effect that Amikacin injection impaired his hearing. Moreover the facts and circumstances of the instant case are not identical with those of the cited decision.

            In view of the matters discussed above we are of the view that the complainant has proved his case and as such he is entitled to the reliefs as prayed for.

Reasons for delay

The Case was filed on 07.09.17 and admitted on 14.09.17. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.

In the result, the Consumer case is allowed.

     Fees paid are correct. Hence, it is

ORDERED

that the Complainant Case bearing No. CC/ 98/2015 be and the same is allowed on contest with cost of Rs. 10, 000/- ( ten thousand only ) against the O.P./ Doctor Bibhas Mukherjee.

             The O.P./ Dr. Bibhas Mukherjee is directed to pay Rs. 12,00,000 ( twelve Lakh only ) to the complainant for the entire expenses for the better treatment of the Complainant.

            The O.P./ Dr. Bibhas Mukherjee is further directed to pay Rs.90,000/- ( ninety thousand only ) to the complainant for the sufferings of mental pain and agony.

             The O.P./ Dr. Bibhas Mukherjee is further directed to pay Rs.13,00,000/- ( thirteen Lakh) in total to the complainant within 60 ( sixty ) days from the date of this order. 

Let plain copy of this order  be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand  /by post under proper acknowledgment  as per rules, for information and necessary action.

The Final Order will also be available in the following Website:

    confonet.nic.in

      Dictated & corrected by me.

     President

 Member                                                 Member                                        President.