Hon'ble Mr. Haradhan Mukhopadhyay, President.
The alleged written diagnosis of the OP Doctor which compelled the Complainant Chandana Dam to take recourse this Commission stands described in the complaint. The factual panorama is described in few words to the effect that the Complainant/Petitioner Chandana Dam was under treatment of the OP Dr.Dipankar Dutta from 25.04.2016 during the pregnancy of three months. While the Complainant was under continuous treatment of the OP on 04.07.2016 at about 9 P.M. the Complainant sustained severe pain and bleeding for which she was taken to the chamber of the OP. The OP Dr. Dipankar Dutta after examining suggested the Complainant to be admitted at Poddar Nursing Home and provided some medicine for that night. In the next morning i.e. on 05.07.16 OP he released the Complainant with a prescription. Thereafter on the next day on 06.07.16 bleedings started again and she felt unbearable pain for which the Complainant was taken to the chamber of the OP. The OP Doctor suggested her to be admitted at North Bengal Medical Collage or any private hospital. Accordingly the Complainant was admitted at Metropolitan Nursing Home, Cooch Behar wherein one Dr. Sandip Saha medically treated her and suggested for undergoing ultrasonography. The Complainant, accordingly had undergone an ultrasonography wherein it was reported that the baby in the womb was already dead. According to the report to the Cooch Behar Scan Centre it was reported that the baby was 15-16 weeks on that day. As per the USG report the baby died before 35 days. So it was negligence on the part of the OP as he did not notice that the baby was already dead and despite that he continued treatment of the mother which might cause her dead as well. Due to negligence of the OP it is declared that he was not sincere with her patient and was negligent towards his duty. Due to such acts of the OP both the Complainants family and the family of her in-laws faced many problems. The cause of action arose on 25.04.2016. The Complainant claimed a relief of Rs.2 Lakh as compensation for death her baby, Rs.1 Lakh for negligence on the mother, Rs.50,000/- towards medical treatment and Rs.50,000/- towards cost of litigation.
The OP contested the case by filing written version denying each and every allegation of the Complainant. The positive defence case of the OP Dr. Dipankar Dutta in a nutshell is that, the husband of the Complainant Pijush Ch. Dam previously filed a petition before this Commission on the self same incident which was registered as complaint case No.89/2016. The OP also appeared and contested the same after filing written version but on 11.12.17 the Complainant filed a petition to withdraw the said case. After hearing the parties this Commission allowed the said petition with cost of Rs.500/-. The Complainant did not take any permission/ liberty to file the present petition before this Commission on the same cause of again. The Complainant initially came to the chamber of the OP and Dr. Dipankar Dutta properly checked the patient and suggested to make a report by way of USG and after perusing the report prescribed medicine.
USG report dated 01.06.16 did not suggest any fault or in dispute of the baby in the womb of the mother. When the patient came to the chamber on 04.07.16 alongwith the report of USG dated 01.06.16, the OP after perusing the report checked up her and suggested and refer to North Bengal Medical Collage as soon as possible. There was no negligence on the part of the OP in treating Complainant medically. The OP therefore prayed for dismissal of the complaint with cost.
The allegation and denial of the fact in issue and the respective case of the parties persuaded this Commission to ascertain the following points.
POINTS FOR DETERMINATION
- Whether the Complainant is a consumer under the C.P. Acts?
- Whether the case is bad for defect of parties?
- Whether there was any medical negligence on the part of the OP?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
DECISION WITH REASONS
Point No.1.
The present issue relates to ascertainment as to whether the Complainant is a consumer or not the OP has not disputed the status of the Complainant as a consumer. However after perusing the pleadings of the parties and the evidence on record I am of the view that the Complainant is a consumer under the C.P. Act.
Accordingly issue No.1 is answered in positive on behalf of the Complainant.
Point No.2.
The issue No.2 strikes at the root of the case in as much as the bast document of the case relates to the report of ultrasonography dated 06.07.16 and 01.06.16. As per the USG report conducted by Cooch Behar Scan Centre the impression was “Foetal demise at 16 weeks +”.
As per the USG report dated 01.06.16 felt by Cooch Behar Scan Centre the impression was “Sonological biometry reveals foetal maturity of about 15-16 weeks”.
Thus a closed scrutiny of the said documents reveals that the USG was conducted by the self same Centre. While in the earlier report dated 01.06.016 the physical condition of the foetus could not be ascertained perfectly but in a later report after one month the status of the foetus projected as death. Therefore it is the Laboratory in which the ultrasonography was conducted is the one of the most responsible and relevant parties for just and effective disposal of the case. Without making the said Laboratory i.e. Cooch Behar Scan Centre party to the case no effective findings can be given by this Commission.
Therefore, the present case for is bad for defect of parties. Accordingly, issue No.2 is answered in negative against the Complainant.
Point No.3.
The present point centres around the subject of the entire case which casts a heavy duty upon this Commission to ascertain as to whether there was any medical negligence on the part of the OP.
It is an admitted fact that the OP Dr. Dipankar Dutta medically treated the Complainant Chandana Dam at the initial stage starting from 04.07.16 and 06.07.16.
So far as the pleadings and evidence are concerned it is Crystal clear that the Complainant had undergone and ultrasonography at Cooch Behar Scan Centre, R.R.N. Road, Cooch Behar to ascertain the condition of the foetus followed by her pregnancy. As per the said USG report the impression of “Sonological biometry reveals foetal maturity of about 15-16 weeks”. The said report was checked, verified and issued by Dr. P. Sanyal MD (Radio- Diagnosis).
The said USG report was placed before the OP Dr. Dipankar Dutta who after perusing the said report did not suggest any fault or any dispute of the baby in the womb of the mother.
It is also the positive defence case and the plea of the OP Doctor that after perusing the said USG report when the patient came to his chamber on 04.07.16 he suggested and referred the Complainant to North Bengal Medical College as soon as possible.
In common parlance a Doctor gives his opinion regarding his treatment on the basis of investigation report like USG etc. Therefore the person conducting the investigation in the Laboratory cannot escape his responsibility regarding the impression given after holding ultrasonography of the womb to ascertain the status of the foetus.
It is further found from the evidence on record that the Complainant undergone second time USG in the self same Laboratory namely Cooch Behar Scan Centre, R.R.N. Road, Cooch Behar on 06.07.16 as per the said USG report dated 06.07.16 being Annuxure-5. The impression was “Foetal demise at 16 weeks +”. The said USG was conducted by the selfsame Dr. P. Sanyal.
It is therefore curious enough as to how the said Dr. P. Sanyal over looked the physical condition of the foetus while conducting USG on 01.06.16. Since the foetal demise was 16 weeks back it means that prior to 06.07.16 about one and half month ago the foetus died in the middle part of May, 2016. Therefore the said Radiologist Dr. P. Sanyal is also a proper and necessary party without whom the medical negligence of the responsible person cannot be properly ascertained.
There is no dispute regarding the fact that the OP Dr. Dipankar Dutta medically treated the Complainant on 25.04.16 wherein he gave his opinion on the basis of the USG report.
After perusing all the documents being Annexure-1 to Annexure-5 it is Crystal clear that the Complainant was medically treated by two Doctors and under gone Ultrasonography in a Laboratory wherein the impression of the baby was given improper and misleading.
Therefore in order to ascertain the actual medical negligence all the proper and necessary parties should be brought under the parties to the case.
Therefore in the given facts and circumstances of the case it is not possible to ascertain the fault of the OP Doctor as pleaded by the Complainant.
Issue No.3 is therefore answered in the negative against the Complainant.
Point Nos.4 & 5.
Issue No. 4 & 5 are to corollary to issue No. 2 & 3. Previously I have ascertained that the patholab is the necessary and proper party for just and effective dismissal of the case without whom the fate of the case cannot be adjudicated in the present form and prayer. So the Complainant is not entitled to get the relief as prayed for at the stage. Accordingly issue No.4 & 5 are decided against the Complainant. Consequently the complaint case fails.
Hence, it is
Ordered
That the complaint case be and the same is dismissed in this form on contest without cost. However the Complainant is at liberty to file the case afresh after making all the persons and institutions as parties to the case as per the provisions of Law. The parties shall bear their respective costs.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
