West Bengal

South 24 Parganas

CC/199/2014

SMT. ANANDAMAYEE MAJUMDER, Wife of Parimal Majumder. - Complainant(s)

Versus

DR. G.K. MOHANTY, OF 'SMRUTI' - Opp.Party(s)

31 Jul 2015

ORDER

      DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _199_ OF ___2014_____

 

DATE OF FILING : 2.5.2014     DATE OF PASSING JUDGEMENT:  31.07.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             :   Smt. Anandamayee Majumder ,w/o Parimal Majumder,2/90, Gandhi Colony, P.S. Jadavpur, Kolkata – 92.

 

-VERSUS  -

 

O.P/O.Ps                            :    Dr. G.K. Mohanty of ‘SMRUTI’ 8, Nabanagar, Jadavpur,

P.S. Jadavpur, Kolkata – 32.

 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                    

            This is an application under section 12 of the C.P Act, 1986.

            The short story of the complainant is that on May 2013 her daughter namely Chaitali Majumder went to the clinic of Dr. G.K. Mohanty with high fever, chest pain and respiratory distress. It has further stated that the last six months while the petitioner’s daughter was under the treatment of said doctor Mohanty , the condition of the patient was deteriorated day to day and several times complainant reported the condition of the patient to Dr. Mohanty but Dr. Mohanty did not pay any heed to it and assured the complainant that patient will cure very soon and lastly when the condition of the patient became very serious the complainant went to the clinic of Dr. Pranab Kumar Das on 1.11.2013 and after examining her Dr. Das advised the patient for hospitalization . Accordingly, complainant admitted her daughter at K.P.C Hospital and from K.P.C Hospital finally the patient was admitted at CMRI Hospital where the patient was under ventilation and finally on 10.11.2013 at 4.25 p.m. she died at CMRI and in the death report the CMRI hospital has observed ‘Disseminated Tuberculosis’. It has alleged that during the period of six months when the treatment was going on under Dr. G.K. Mohanty the said doctor never advised for Chest X-ray at the very beginning which is a gross medical negligence of D. Mohanti. Moreover, in that period there was no clinical findings of Dr. G.K. Mohanty on his prescription that in what disease the patient was suffering and that is why the patient was gradually becoming serious and ultimately expired due to medical negligence of Dr. G.K. Mohanty in the first instance. It may be mentioned here that complainant’s daughter was an M.A and due to wrong treatment and gross medical negligence of Dr. G.K Mohanty  the complainant’s daughter died for which complainant has to incur medical expenditure Rs.3 lacs since CMRI and at KPC hospital and under Dr. Mohanty. It has claimed  Rs.3lacs  which was incurred for medical expenses and Rs.4 lacs for compensation for wrong treatment and gross medical negligence of Dr. G.K. Mohanty. Hence, this case.

            The sole O.P Dr. G.K. Mohanty is contesting the case by filing written version and has denied all the allegations leveled against him. It is the positive case of the O.P that he never detected any symptom of chest pain. As such O.P did not feel any necessity of chest X-ray. This O.P referred in  his written version the judgement of Hon’ble National Commission and has claimed that after administration of medicine the patient remained better and she preferred to be absent when she was asked to contact for check up. It has claimed that long absence of follow up has aggravated the problem from reporting at the time of follow up is major cause for determination . The O.P has further stated that again and again he asked the patient that she requires prolong treatment and she was having bronchial syndrome  and food restrictions were also imposed but she preferred to have medicines when only her problem became unbearable and this O.P regularized time and again but owing to non-observance of follow up the case became critical and the mishap occurred where no liability of medical negligence can be fastened on the doctor for the attitude of the patient which is clearly visible from the facts of the case . It has further stated that he was not aware about the admission at CMRI or KPC Hospital but from the documents it appears that in those two hospitals none have suggested diagnosis as Tuberculosis . As such the Doctor primarily t5reating cannot be held liable for medical negligence since all reasonable care and caution was adopted and the medicine administered which shows that the standard practice as per Homeopathic guideline was adopted and patient was responded to the medicine as per Homeopathic Standard practice. Accordingly O.P has claimed that all the norms of Homeopathic standard practice as adopted and the inference drawn by the complainant has no leg to stand. It has further stated that the patient never informed that the condition is becoming serious. So, on the basis of the report as per standard Homeopathic Practice he administered medicine. Accordingly, O.P s prays for dismissal of the case.

            Points for consideration in this case is whether O.P Homeopathic Dr. G.K. Mohanty is responsible for unfortunate death of the complainant’s daughter .

                                                            Decision with reasons

            At the very outset we should aware what are the essential component of negligence. There are three essential components namely duty, breach and resulting damage. It is also known to us that a simple lack of care and error of judgement or accident is not proper for negligence on the part of a medial practitioner. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for medical negligence merely because a better alternative or method of treatment was also available or simply because a most skilled doctor would not have chosen to follow or showed to that practice or procedure which the O.P doctor followed.

            Moreover, a failure to use extraordinary precaution which might have prevented the happening cannot be the standard of judging the alleged negligence . The standard to be applied for judging ,whether the person charged has been negligent or not would be, that of an ordinary competent person exercising ordinary skill in that profession. It is also well known to us that in view of the judgement of the Hon’ble National Commission reported in 2012(2)CPR page 52 that “It is our  abundant duty and obligation of the civil society to ensure that the medical practitioners are not unnecessary harassed or humiliated so that they can perform their professional duty without fear and apprehensions”.

            Here in the instant case, it must be stated that complainant has chosen Homeopathic doctor for the treatment of her daughter who was suffering from high fever, chest pain and respiratory distress (as per complainant’s case). So, with the ingredients and norms of Homeopathy, the O.P doctor treated the daughter of the complainant and some tests were also advised. We also find the self hand written declaration regarding health problem of Chaitali Majumderr in the month of October, 2013,wherefrom it appears that she was feeling pain in her throat and also suffering from cold and cough and some abnormal sound was coming out from her chest and other problems. But one thing is clear that inspite of prolong treatment of the said doctor ,although he advised some investigation of blood etc. but never suggested X-ray ,C.T.Scan of chest,probably which is not expected from Homeopathic doctor since the same is out of their standard practice. It is true that O.P has maintained his standard practice but it does not mean that he will not refer either any better treatment or X-ray or CT scan of chest to detect the position of cold and cough inside the chest when the patient complaint the same  which is unfortunate and ill luck of complainant’s daughter that her treatment was continued there. But he has advised some blood examination, wherein the report of CRP on 28.5.2013 was not satisfactory. Moreover, the report of ESR on  9.10.2013 was also 38. It is too high because from the biological reference range of female having 17 years to 50 years should be within 20. But complainant’s daughter, who is a 20 years old, was 38. Again Platelet count on 28.5.2013 was 1.43 which is under the biological reference should be 1.5 to 4.5 which is below the level. Hemoglobin was less than the normal value of Female i.e. 9.10 and reference is 11.5 to 16 on 16.5.2013. Apart from that, other tests i.e.  Neotrophiles 55% (range 36 to 48), Lymphocytes 40% ( range 44 to 54), Monocyties 1%( range 3 to 6), Eosinophil 4%( 4%( range 2 to 5%). This is the treatment of O.P doctor. Inspite of perusing all these things O.P did not suggest any positive treatment and never expressed that it would not be possible within the range of Homeopathy treatment which was very much necessary from the O.P doctor, that is why in the very very early morning days of her life she died. It is true that KPC Hospital and CMRI was not made party.

            Ld. Sr. Advocate of the O.P has shown the bed head ticket of CMRI, wherefrom page no.51 it appears that Dr. Professor Sukumar Mukherjee examined her and advised Biopsy of Skin after patient is stable. In that juncture Ld. Advocate of the O.P has pointed out that being a Senior Doctor Professor Sukumar Mukherjee also never thinks regarding chest examination but the cause of death is Disseminated Tuberculosis and immediate cause is sepsis with multi organ failure. But it appears in page 44 that chest X-ray was done, ECG done on 3.11.2013. So, the argument as shown by the Ld. Sr. Advocate that Professor Dr. Sukumar Mukherjee did not advise any X-ray but previous page i.e. page 44 shows that Chest X-ray and ECG was already done. It has appeared in page no.46 of Bed Head Ticket of CMRI that patient was referred to Dermatology due to fever and rash, probably for which Professor Sukumar Mukherjee advised Biopsy of skin.

            We have perused the entire bed head ticket of CMRI Hospital and find that all sorts of medical care they have taken to save the life of Chaitali Majumder . So, from the totality of the circumstances it appears that the O.P being a Homeopathic Doctor treated the patient as per standard practice and reasonableness of Homeopathy . It is not expected from a Homeopathic doctor to get all sorts of allopathic treatment and when the patient was complaining serious pain it was also the duty of the patient party to remove her to the better hospital for treatment. It is true that although O.P doctor has claimed that patient was responding but we find that something was not at all correct. But standard of treatment of Homeopathy was given , that is why without examining other medical Institutions namely KPC Hospital and CMRI Hospital as well as expert opinion as to what is the cause of death , whether it is due to prolong treatment of Homeopathy or else , it cannot be said that O.P Doctor is negligent on the part of his treatment. It is not expected from a Homeopathic doctor that he will advice X-ray and city scan etc. Moreover, when the standard practice of homeopathy depends upon symptoms etc. this type of expectation regarding Chest X-ray or other examination is uncalled for from a Homeopathic doctor. So, O.P doctor as usual to their treatment procedure did the same. So, it cannot be said that complainant’s daughter expired due to wrong treatment of Homeopathy ,particularly when we are in dark regarding the series of treatment of KPC  and CMRI as well as no expert opinion was called for in this regard and it is pertinent to point out that none of the doctors of KPC or CMRI held responsible the treatment of  Homeopathic Doctor .

            So, he is a qualified Homeopathic Doctor and he has given best treatment according to the standard of practice adopted by a Homeopathic Doctor. So, it is very difficult to hold that the O.P Doctor G.K Mohanty is responsible for medical negligence ,when other Medical Institutions were not made party and no expert opinion is furnished and no adverse opinion was formed by the doctors of K.P.C. Hospital and CMRI against the O.P doctor.

            It is not out of record that complainant has failed to prove what quantum  of  money was spent for Homeopathic Doctor. No money receipt is filed in this record. Hence, we are very sorry to hold that the Doctor ,O.P is not negligent , though a young lady expired in her very morning days of life which is most unfortunate state of affairs.

            Medical negligence was discussed in several landmark judgements from Hon’ble Supreme Court of India and abroad. It was decided that “No sensible professional could be intentionally committed act or omission which would result in harm or injury to the patient since the reputation of the professional would be at stake. A single failure may cost dear in his lapse.

            Here, in the instant case we cannot apply the doctrine of res-ipsa-loquitor simply because a patient has not favourably responded to the treatment given by the Homeopathic doctor. Thus, we cannot straightway hold that the O.P is liable for medical negligence. It has further observed by the Hon’ble National Commission that when a patient dies or suffers from some mishap ,there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known fact that even the best professionals , what to say of the average professionals, sometimes have failures. A lawyer cannot win every case in his professional carrier but surely he cannot be penalized for loosing the case, provided he had appeared in it and made his submission.

            Apart from that it is very much known to us that Doctor proposes but God disposes. Thus for the totality of the circumstances of the unfortunate death of a female daughter in her very morning days of her life, we are very much shocked     but one thing knocked by judicial conscience that why the parents of the victim did not care to remove the victim from the hand of Homeopathic doctor within a short span of time when the condition was not improving, because we are aware regarding the standard of practice of Homeopathic doctor based on symptoms etc.

            Here, in the instant case it was not expected from the parents of the victim Chaitali to believe on the treatment of homeopathy for a long time of about six months ,which is fatal ,when the standard of practice has not yet spread out with the modern equipments which is available in the super specialty hospital.

            Thus we find that O.P doctor is not liable for any medical negligence as he adopted his standard of practice being a Homeopathic Doctor.

            Hence,

                                                                        Ordered

That the case is dismissed on contest but in sorry state of affairs we make no order as to cost.

Let a plain copy of this judgement be handed over to the parties free of cost.

 

 

 

Member                                                           Member                                                           President

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

 Ordered

That the case is dismissed on contest but in sorry state of affairs we make no order as to cost.

Let a plain copy of this judgement be handed over to the parties free of cost.

 

 

 

Member                                                           Member                                                           President