Dt. Of filing 10.2.2017

Judgment : Dt.26.2.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of   C.P.Act, 1986 by  Husna Bewa alleging medical negligence on the part of the opposite party namely Dr. D.K.Majumder.

            Case of the Complainant in brief is that minor grandson of the Complainant namely Sk. Amin Ali aged about 15 years swallowed a 2 rupees coin in afternoon of 4.9.2015 and owing to such incident the boy was admitted to Vidyasagar Hospital on 5.9.2015. Subsequently, on 7.9.2015 an X-Ray report containing finding as “R.D.Shadow was seen in upper prt of the abdomen suggestive of foreign body to check physically”. Accordingly, on 10.9.2015 the said patient was taken to Balananda Brahmachari Hospital and Research Centre of 151 & 153 D.H.Road, Kolkata-700 034, where he was referred to professor (Dr.) D.K. Majumder, MBBS, MS who decided to operate surgery on the patient forthwith and referred the patient immediately to Mohanananda Brahmachari Sishu Seva Pratisthan of 57 A Roy Bahadur Road, Behala, Kolkata-700 034 for the purpose of the said surgical operation and the patient was taken to the referred hospital. It is further stated by the Complainant that on 11.9.2015 the OP Doctor performed the surgical operation at Mohanananda Hospital early in the morning but no trace of the said swallowed up coin was found at all. It is also alleged by the Complainant that the OP doctor did not visit the patient after completion of the said surgical operation during in course of day and even in evening. It is also stated by the Complainant that on 12.9.2015 the Complainant took the patient under the consent of the said Mohanananda Hospital for X-Ray afresh which was done and the finding was “x-ray of abdomen upto rectum and anal canal. X-ray plate does not disclose such round shadow. No radio opaque for foreign body is noticed in abdomen. Abdominal bowl shadow is not seen”. It is also alleged by the Complainant that the Mohanananda Hospital Authorities decided to release the patient after few days and they retained a mediclaim card of the deceased of father of the said patient having coverage of Rs.30,000/- which was not returned to the Complainant. The Complainant has specifically stated that the OP Doctor was not at all justifiable in performing surgical operation without having X-ray report afresh and, further the Doctor done the surgery in heist and as such unnecessary made a big hole measures 6” X 9” in the abdomen of the patient which made the Complainant and her men afraid that whether both the kidneys of the patient are intact being not stolen away. The Complainant further stated that on 28.9.2015 she made a representation to the Officer-in-charge and also to the Deputy Commissioner of Police stating the facts in brief and praying for taking necessary steps but no step was taken by concerned authority so far and under such situation the Complainant filed a writ petition being No.WP 26084(W) OF 2015 [Husna Bewa VS State of West Bengal and Ors] impleading the OP as respondent No.5 hearing which on 16.11.2015 the Hon’ble Justice Dipankar Dutta was pleased to dispose the said matter directing the Police Authority concerned to take step ensuring investigation in accordance with law and taking a logical conclusion at an early date and also to intimate the writ petitioner if he decides not to investigate the matter in terms of Sec.157(2) Cr. P.C. The Complainant stated that copy of the said order dt.16.11.2015 was also communicated by post but the O.P. did not appear even before the Hon’ble High Court. Hence the Complainant filed this case, praying for a direction upon the OP to pay Rs.4,90,000/- towards compensation with interest and to pay Rs.10,000/- towards litigation cost.

            Notice was served upon the OP. The OP appeared and challenged maintainability of this consumer complaint and vide Order No.6 dt.26.4.2017 the Forum opined to decide the point at the time of final hearing suit the ground of challenging maintainability is involved with facts as well as law. However, after that the OP did not file written version so vide Order No.13 dt.7.12.2017 the case was proceeded ex-parte.

            The Complainant annxed prescription dt.5.9.2015 issued by Dept. of Health and Family Welfare, Govt. of West Bengal, requisition of x-ray dt.5.9.2015 x-ray report dt.7.9.2015, requisition for x-ray dt.8.9.2015 and report dt.9.9.2015, out-door ticket dt.10.9.2015 of Behala Balananda Brahmachari Hospital, prescription dt.12.9.2015 issued by Mohanananda Brahamachari  Hospital, prescription dt.13.9.2015 to the evidence of affidavit.

Decision with reasons

            The Complainant by filing the instant complaint has alleged medical negligence on the part of the OP Doctor for performing surgical operation on her grandson’s abdomen since the boy swallowed a 2 rupee coin and felt unwell and, as such, taken to Vidyasagar Hospital and thereafter to Balananda Brahmachari Hospital and subsequently, being referred, to Mohanananda  Brahmacharui Hospital where the OP Doctor performed surgical operation. The Complainant, although alleged medical negligence on the part of the OP Doctor who has performed said surgical operated but did not implead the Hospitals wherefrom he got medical treatment including the said surgical operation. In the instant case to arrive at a decision whether the OP Doctor is negligent in treating his patient presence of the said Hospital’s wherefrom the said patient got medical treatment is necessary. Therefore, it is evident that the petition of complaint suffers from non-joinder of necessary parties.

            Complainant specifically stated that the OP Doctor ought to have operated the patient after having gone through a report of X-ray afresh but no authentic document, be it opinion of ex-pert or medical literature etc. wherefrom it would have been evident that standard medical treatment has not been administered on the said patient. In absence of any such document, it is not possible to determine that the treating doctor did not provide treatment as per standard sill and practice.

            It is also observed that the Complainant did not furnish any document wherefrom it would have been evident the actual date of the said surgical operation since in the petition filed by the OP challenging maintainability of the instant case, it is alleged that the Complainant did not disclose proper date of the said surgical operation.

            Under such state of affairs, we find the Complainant fails to substantiate her allegation.

            In the result, the Consumer complaint does not succeed.

            Hence,

Ordered

            The Consumer Complaint being No.CC/82 of 2017 is dismissed ex-parte without cost.