Smt. Sangita Paul, Member
This is a case filed by Shri Anirban Basu, S/o. Sibdas Basu of Village and P.O. – Hansuri, P.S. – Magrahat, Dist. – South 24 Parganas, Pin – 743 609 against Dr. Debasish Sarkar, Dr. S.B. Das Chakraborty and Authorized signatory of Netaji Subhas Chandra Bose Cancer Hospital with a prayer for a direction upon the OPs to pay the amount of Rs.1,7-0,000/- to the complainant by the OP No.1 for medical expenses, to pay further sum of compensation of Rs.50,000/- to the complainant by OP No.1 doctor (OP No.1) with several ailments. He could not eat properly, his stomach swelled, stool was not clear, his weight was lost, sometimes his stomach was aching. The complainant came to OP No.1 Dr. Debashish Sarkar. He treated the patient from 01.03.2018 to 04.06.2019 and got relief from pain only for few days, but the problem persisted. It was assured by the OP No.1 side, that nothing serious happened. The complainant spent lots of money for treatment, but the problem increased. OP No.1 did not prescribe any tests, nor did he refer the patient to any other doctor.
Then the complainant went to another doctor (Dr. S. B. Das Chakraborty) on 10.06.2019. OP No.2 prescribed some tests and biopsy. OP No.2 declared that the complainant is suffering from colon cancer, and asked him to visit an oncologist. AT last the complainant went to OP No.3, Nayabad Netaji Subhas Chandra Bose Cancer Hospital. He underwent various treatments viz. chemotherapy. He had also a major operation, the large intestine was amputed, stool is passed through a bog made by the doctor. As a result, the complainant became unfit. The complainant had to spend Rs.8,200/- for colon bag.
The problem was not solved through mediation. That the cause of action arose on 04.06.2019 and it is still continuing.
Hence the complainant prays for directing the OP No.1 to pay the amount of Rs. 1,70,000/- to the complainant, due to deficiency in service, directing the OP No.1 to pay compensation to the tune of Rs.5,00,000/- to the complainant.
That the case was filed on 13.04.2021. The case was admitted on 22.04.2021. On 07.10.2021, the complainant states that the notice was served upon the OPs. On 24.11.2022, the OPs 1, 2, 3 file separate W/V. On 27.01.2023, the complainant filed evidence on affidavit. On 24.03.2022, the OP No.2 filed questionnaire. On 28.04.2022, the complainant filed reply. On 06.07.2022, OPs 1, 2 and 3 filed separate evidence on affidavit. On 07.02.2023, OPs 1, 2 and 3 were present and filed BNA. Heard argument in part. On 31.03.2023, argument of both the parties was heard in full. Accordingly, we proceeded for giving judgement.
OP No.1 states that the complaint petition is not maintainable in the eye of law. The petition filed by the complainant is vexatious and speculative. That the complaint petition has no cause of action. The Ld. Commission has no jurisdiction.
That the complaint petition has no cause of action against the said OP No.1.
The instant case involved with complicated question of fact and law and therefore the Ld. District Commission cannot adjudicate the same in a summary trial. The complainant visited the OP No.1 on 13.01.2018. Thereafter the complainant visited the OP No.1 on successive dates OP No.1 told to do the USG of the whole abdomen, but the complainant did not do so. He did not follow the instructions of OP No.1, without any test report, it is not possible to start treatment. The OP No.1 strongly disputed the allegations of the complainant about “fake doctor”. This is defamatory.
The OP No.1 did not commit any fault, imperfection and negligence regarding treatment of the complainant. The complainant is not an obedient patient. He visited the doctor according to his wish. The complainant, due to his non negligence delayed the matter.
The complainant failed to bring any expert’s report in this context. Hence it is rejected. The complainant prays for dismissal of the complaint.
OP No.2 in his written version, states that the present complaint is not maintainable in the eye of law.
That the complainant unnecessary impleaded OP No.2 in the instant complaint. There is no allegation against OP No.2. That the complainant visited, the chamber of OP No.2 on 10.06.2019. It was observed that the complainant had an abdominal lump. OP No.2 gave some pathological tests. After seeing the test reports, the OP No.2 advised to visit the oncologist. Thereafter the complainant did not turn up.
Hence, the OP No.2 did not commit any fault, imperfection and negligence. Because OP No.2 did not treat the patient, after perusing the test reports. The complainant did not seek any relief against OP No.2.
OP No.2 prays for expunging the name of OP No.2 from the complaint case.
OP No.3 states that the complaint petition is not maintainable in the eye of law. That the complaint petition is vexatious and speculative. Ld. District Commission has no power to decide the case.
That the patient visited the doctor with the complainant of CA Colon (Ascending). Accordingly he was referred to surgical oncology. The patient was admitted on 05.07.2019 and after chemotherapy the patient was discharged on 05.07.2019.
After three cycle of chemotherapy, operation was conducted. Then the patient was discharged on 18.09.2019. Now the patient is doing well.
That the OP No.3 did not commit any fault, imperfection and negligence, regarding treatment of the complainant.
OP No.3 prays for expunging his name. Op No.3 states that there is no claim of the complainant against OP No.3 and the complainant failed to produce any medical document in this regard.
Hence, the complainant prays for rejection of the complaint with cost.
Points for consideration :-
- Is the complainant, a consumer?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons :-
Point No.1:-
On perusal of the documents and records, it appears that the complainant, a patient suffering from cancer went to several Doctos because he had pain in stomach he had black stool and other associated difficulties. He was diagnosed colon cancer. He spent Rs.1,70,000/- for operation. Hence he is a consumer U/2(7) of the C P Act, 2019. Hence, the first point is decided in favour of the complainant.
Point No:2 :
The complainant had some difficulties in stomach and abdomen. He went to the OP No.1. After treatment he prescribed for the USG of the whole abdomen. The complainant did so. But his problems were not solved. Then he went to Dr. S B Das Chakraborty of Namita Sevayatan. He also prescribed some tests on 24.06.2019. It was revealed that a well differentiated adenocarcinoma, ascending colon, multiple colonic polyps. Then the complainant went to Netaji Subhas Chandra Bose Cancer Hospital. The complainant underwent surgery other there. In the discharge certificate it was written that Laparoscopic Assisted Total Coloctomy followed by Ileorectal Anastomosis and Loop Ileostomy due to under G A on 11.09.2019. Surgeries were performed it is a clear case of colon cancer, the thing speaks for itself (Res IPSA LOQUITOR). Had it been detected earlier the complainant would not have to suffer and spent such huge amount of money. In the First Appeal Neera Arya Vs Batra Hospital, NCDRC observed whether there was a deviation from standard of practice it is medical negligence. Had the problem been detected by the OP No.1, the complainant would not have to suffer much. The complainant faced problem due to deficiency in service adopted by the OP. Hence, the 2nd point is decided in favour of the complainant and against the OPs.
Point No.03 :-
The complainant is a victim in the hands of the Dr. Debasish Sarkar (OP No.1). The complainant visited the Doctor with serious ailments, the OP No.1 did not take the problem seriously. The reason is best known to him. The complainant went to OP no.1 with a hope of recovery but OP no.1 did not feel it important to diagnose the disease properly. He failed to detect the disease e.g. he gave medicine Etiloom, which is a medicine of insomnia, stolopen plus, for lowering depression, laxy powder for constipation, Recozo DSR, which is a medicine of Gastro Esophageal Disease, Prothioden is also used for lowering depression and a Paracetamol was also prescribed. This is not the right way of treatment of a patient like the complainant. It is more or less a magazine-based treatment. Due to wrong treatment of OP No.1 the patient’s condition deteriorated. No option was left other than operation. The complainant spent time in mental agony due to deficiency in service adopted by OP no.1. Hence the complainant is entitled to get compensation as prayed for. So, the 3rd point is decided in favour of the complainant and against the OPs.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the complaint be and the same is allowed on contest against OP No. 1 and dismissed on contest against OPs 2 & 3 with cost of Rs.20,000/- (Rupees twenty thousand).
That the OP No. 1 is directed to pay the amount of Rs.1,70,000/- (Rupees one lakh and seventy thousand) with 9% interest w.e.f. 04.06.2019 till realization to the complainant within 45 days from the date of this order.
That the OP No.1 is directed to pay compensation to the tune of Rs.2,00,000/- (Rupees two lakhs) to the complainant for mental pain, agony and harassment of the complainant within 45 days from the date of this order.
That the litigation cost of Rs.20,000/- (Rupees twenty thousand) is to be paid by OP No.1 within the stipulated period of 45 days.
That the complainant is at liberty to put the order into execution if the orders are not complied with within 45 days from the date of this order.
Ld. Member Sri Partha Kumar Basu joined on 11.04.2023 and he did not take part in hearing the argument of the case. As such he did not sign the judgement and order passed on this day.
Let a copy of this order be supplied to the parties concerned free of cost.
That the final order will be available in the following website: www.confonet.nic.in.
Dictated and corrected by me.
Sangita Paul
Member
