Date of Filing: 30-12-2016 Date of Final Order: 14-12-2017
Sri Asish Kumar Senapati, President
This is an application u/s 12 of the C.P. Act, 1986.
One Majibul Hossain ( hereinafter referred to as the Complainant ) lodged the complaint against Dr. Bikash Misra and Jeebandeep Nursing Home, ( hereinafter referred to as the OPs) alleging medical negligence.
The gist of the complaint case is as follows:-
The Complainant came to the OP No.1 with severe pain in his right leg on 17.11.15 and on examination, the OP No.1 advised him for operation and assured that he would be cured. Accordingly, the Complainant got himself admitted at the OP No.2 Nursing Home under the OP No.1 on 17.11.15 and an operation of his right leg was done at about 6.30 PM on that day. That after 2 days of the said operation, the condition of the patient was going from bad to worse and the OP No.1 willfully denied to improve the situation of the Complainant. Thereafter, the Complainant was admitted at North Bengal Medical College & Hospital and the Doctors of North Bengal Medical College & Hospital referred him to the Department of CTVS at SSKM Hospital, Kolkata. It was asserted that the Doctors of SSKM Hospital, on examination said that there was a major defect at the time of previous operation and some veins of right leg of the Complainant had been cut unreasonably and negligently. Then the Complainant went to the CMC, Vellore and after medical examination by the Doctors at CMC, Vellore, informed him that OP No.1 treated the patient wrongly and there was clear instance of negligence. The Complainant spent a huge amount of money and suffered a lot of mental agony due to negligence and irresponsible act of the OP No.1. Ultimately, he lodged a written complaint before West Bengal Medical Council against the OP No.1 but of no response. The Complainant has prayed for compensation of Rs.3 lakh for expenses of his treatment, Rs.1.50 lakh for mental pain and agony and Rs.10,000/- for litigation cost.
The OP No.1 and 2 contested the case by filing w/v and evidence on affidavit.
The OP Nos. 1 filed w/v on 15.05.17 contending that the case is not maintainable as there is no cause of action and the Complaint has been filed against the OP No.1 to squeeze money and there is no deficiency in service on the part of the OP No.1. The complaint case is bad for defect of parties and the Complainant has not made parties to all the Doctors who treated him even after his treatment by the OP No.1. It is the specific case of the OP No.1 that the patient was admitted at the OP No.2 Nursing Home on 17.11.15 with the diagnosis of right LL extensive Cellulitis and pre-operative tests and check up were done and on the same day due to urgency to save the life of the patient, the operation incision and drainage was done by OP No.1 after full consent of the complainant and elder brother of the Complainant. It was also the version of the OP No.1 that creatinine of the Complainant was marginally high at the time of operation which suggested gross infection of soft tissue affecting the kidneys for which the OP No.1 advised admission and incision and drainage for decompression of thigh and leg so that vital organs such as kidneys and other organs are saved after operation. The OP No.1 treated the patient from 17.11.15 to 21.11.15 evening and on 21.11.15 evening, the OP No.1 found blood stained soakage from the operation site and such type of complication is a common of post operative and thereafter decided to refer the patient to higher centre for better management. That, OP No.1 had no knowledge after referring the patient to higher centre. It appeared from the Discharge Summary of North Bengal Medical College & Hospital, CMC, Vellore that there was no whisper regarding the allegation of wrong treatment and medical negligence by 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 03.07.17 denying the allegations of the Complaint. It is the version of the OP No.2 that the OP No.2 is a Nursing Home having better equipments and infrastructure for treatment of any patient and the OP No.2 followed the advice of the OP No.1 for treatment of the Complainant. There is no cause of action to file this case as the OPs treated the patient free of charge and as per Section 2(1)(o) of the CP Act, 1986, ‘’service’’ rendered free of charge does not include the meaning of ‘’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 medical negligence/deficiency in service, as alleged by the Complainant?
- Whether the Complainant is entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point Nos.1.
The Ld. Agent for the Complainant has submitted that Complainant is a consumer under the OPs and he hired the services of OPs on payment of charge.
In reply, the Ld. Agent for the OPs has submitted that the OPs treated the patient free of charge. He urges that admission sheet (Annexure-1) clearly reveals that the patient party did not pay any amount for hiring of service of the OPs. He has argued that service hired by any one free of charge cannot be included within the meaning of service u/s 2(1)(o)f the CP Act, 1986.
We have gone through the complaint, w/v, evidence and documents submitted by both parties. Admittedly, the Complainant hired the service of OPs for his treatment during the period from 17.11.15 to 22.11.15. It is true that Complainant has not been able to produce any document to show that he paid any amount to the OPs for hiring their services and it appears from Annexure 1 furnished by the OPs that there is a Note at the bottom of the admission sheet “patient party not payment any amount nursing home and Doctor” which was duly signed by one Debasish Sarkar. It is not understood who was Debasish Sarkar. However, it is not the case of the OPs that they rendered services to every one free of charge and there is no record to come to the conclusion that Complainant hired the services of OPs free of charge or not. In this case, the decision of the Indian Medical Association -vs- V.P. Santha reported in III (1995)CPJ 1 is very much applicable. Even if it is accepted for argument’s sake that Complainant did not pay any amount as service charges for hiring the services of OPs, in that case also, the service rendered by OPs is within the meaning of service u/s 2(1)(o) of the CP Act, 1986 as the OPs had not rendered service to all the patients free of charge. Therefore, we are of the considered opinion that Complainant is a consumer of the OPs.
Point No.2.
The Ld. Agent for the Complainant has submitted that this Forum has both pecuniary and territorial jurisdiction to entertain the complaint. He has argued that cause of action arose within the territorial jurisdiction of this Forum and the claim amount is also within the pecuniary jurisdiction of this Forum. The Ld. Agent for the OPs has not submitted anything on this point.
On a careful consideration, we are of the view that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint.
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 has submitted that the OP No.1 had treated the Complainant in a very negligent manner. It was urged that the Complainant got admitted at the OP No.2 Nursing Home under the OP No.1 on 17.11.15 and the OP No.1 operated the left leg of the Complainant on 17.11.15. He argued that diagnosis of OP No.1 was also wrong and the diagnosis of Cellulitis without Colour Doppler Test is not correct. It was argued that Complainant visited North Bengal Medical College and Hospital, SSKM Hospital and CMC, Vellore for his treatment and spent a lot of money. He contended that the Doctors at North Bengal Medical College and Hospital, SSKM Hospital and CMC, Vellore informed the Complainant that the OP No.1 treated the patient wrongly. It was argued that medical negligence on the part of the OP No.1 is very clear. He has prayed for allowing appropriate reliefs in favour of the Complainant.
In reply, the Ld. Agent for the OPs submits that the Complainant has not alleged anything against OP No.2 but he has alleged medical negligence against the OP No.1 for his treatment during the period from 17.11.15 to 22.11.15. It was argued that OP No.1 diagnosed the patient LL extensive Cellulitis and abscess on 17.11.15 and accordingly he performed operation of incision and drainage for decompression on 17.11.15 with a view to save the life of the Complainant. It was contended that the patient was referred to North Bengal Medical College & Hospital on 23.11.15 as the OP No.1 could not control blood soakage at the site of operation of the Complainant and he had no medical negligence. It was urged that the OP No.1 is not aware of the treatment of the Complainant after 22.11.15 but nowhere in the medical papers submitted by the Complainant for his treatment at North Bengal Medical College and Hospital, SSKM, Kolkata and CMC Vellore, there was no whisper that the OP No.1 made any mistake or wrongly treated the Complainant during the period from 17.11.15 to 22.11.15. It was contended that Cellulitis is a peculiar disease caused by a type of bacteria entering the skin and it is most often a clinical diagnosis readily identified in many people by history and physical examination alone and in case of abscess surgical drainage is usually indicated with Antibiotic often prescribed for co-existent Cellulitis, especially if extensive. He had argued that the OP No.1 performed the operation for treatment of Cellulitis which is medically accepted and there is no medical negligence or deficiency in service. He has prayed for dismissal of the complaint with cost.
Admittedly, the Complainant got admitted at the OP No.2 Nursing Home under the OP No.1 on 17.11.15 and he was an Indoor patient at the OP No.2 Nursing Home up to 22.11.15. Admittedly, the OP No.1 diagnosed the disease of the patient LL extensive Cellulitis and abscess on the basis of clinical examination and USG report of EVI Diagnostic Centre dated 17.11.15 ( Annex-A). Admittedly, the OP No.1 did incision and drainage on 17.11.15 and ultimately, referred the patient to North Bengal Medical College & Hospital on 22.11.15. The Complainant took admission at North Bengal Medical College & Hospital on 22.11.15 at 14.31 hours and discharged on 24.11.15 with the final diagnosis of Celllulitis c Deep Vein Thrombosis in right lower limb and referred the patient to ‘’the Department of CTVS, SSKM Hospital, Kolkata or other State Medical Hospital with facilities of CTVS Department, West Bengal”. It also appears from Discharge Summary of NBMCH (Annex. A at page 4) that incision given in 5 sites, drainage done and dressing done on 22.11.15, colour Doppler shows Echogenic thrombus within the lumen of femoral vein from ingninal region to lower thigh. The Complainant was also examined at OPD at SSKM Hospital, Kolkata on 26.11.15 and he was advised to attend the OPD again. It appears from Discharge Summary of the Complainant from CMC, Vellore (Annex. A at page 8-10) that the patient was admitted on 02.12.15 and discharged on 13.12.15. There is no whisper in the Discharge Summary of the Complainant issued by CMC, Vellore, Xerox copy of OPD Card issued by SSKM Hospital dated 26.11.15 and Discharge Summary of the Complainant issued by North Bengal Medical College & Hospital dated 24.11.15 that the OP No.1 treated the patient wrongly. There is no expert evidence to the effect that Complainant suffered due to medical negligence of the OP No.1. Admittedly, OP No.1 diagnosed the Complainant’s illness as Cellulitis and surgery is medically accepted for treatment of Cellulitis. The OP No.1 referred the patient to North Bengal Medical College & Hospital on 22.11.15 as he could not stop blood soakage on the site of the operation of the Complainant. We find that North Bengal Medical College & Hospital diagnosed the ailment of the Complainant as Cellulitis c Deep Vein Thrombosis but neither the Doctors of North Bengal Medical College & Hospital nor the Doctors of SSKM Hospital opined that diagnosis of Cellulitis by the OP No.1 was wrong. The Discharge Summary of the CMC, Vellore of the Complainant also has no whisper that the OP No.1 treated the patient wrongly or the OP No.1 had any medical negligence. In worst case, it may be said that there was possibilities of either Cellulitis or Deep Vein Thrombosis but OP No.1 diagnosed the patient as Celllulitis which is nothing but error in judgment and error in judgment cannot be termed as medical negligence or deficiency in service.
In our considered view, the Complainant has not been able to establish any medical negligence/deficiency in service against the OP No.1. The Complainant has not raised any consumer dispute against the OP No.2. Therefore, the Complainant is not entitled to get any relief against any of the OPs.
In the result, the complaint case fails.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby dismissed on contest against O.Ps without cost.
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.
