The instant appeal is preferred against the Final Order dated 04.12.2020 delivered by Ld. D.C.D.R.F., Malda in DFC Case No 49 of 2016. The fact of the case in brief is that one Jayanti Halder a widow of Lt. Tapas Halder registered a Consumer Complaint to that effect that her minor son student of class X of Kalajhora High School Malda was suffering from fever for some couple of days for which he visited the chamber of Dr. Himachal Das, a renowned practicing physician of Malda who examined the patient Sweet Halder and prescribed some medicines. In spite of taking medicines prescribed by Dr. Das no sign of remission of fever was there. The fever was continuing and innumerable visits was there for continuation of treatment but no relief. Subsequently the Complainant Jayanti took her son to the clinic of Dr. Sankhajyoti Saha who after examining advised some medicines but in spite of such consumption of medicines and treatment by Dr. Saha the condition of the patient was deteriorating rapidly. Thereafter, the Complainant Jayanti brought her son to the clinic of Dr. A.K. Dutta another renowned physician who after diagnosing the disease of the patient Sweet Halder informed the Complainant that due to the negligent treatment of Dr. Das and Dr. Saha the condition of the patient had deteriorated in such a level that there was a remote chance of recovery. During the course of treatment by Dr. Saha and Dr. Das the Complainant had to incur at about 3 Lakh and he somehow could manage to collect the said money from the help of his relatives and also by selling out some household properties. Thereafter, in order to proper treatment of the patient she took her son Sweet Halder to Vedehi Hospital at Bangalore on 12.04.2014 where he was admitted as indoor patient for a long treatment and discharged from there on 26.09.2014. Again, the said treatment was continued for the period between 17.12.2014 and 17.01.2015 and the doctors of Bangalore who was involved in the treatment of Sweet Halder informed the Complainant that due to the negligence and uncared treatment of Dr. Saha and Dr. Das the problem became worse. It was further detected there at Bangalore that due to wrong treatment by Dr. Das and Dr. Saha the patient Sweet Halder lost his diameter of Larynx for which he could not swallow solid food particles. The said patient also was affected with ENT problems due such wrong treatment of Dr. Saha and Dr. Das for which the patient went on further treatment at Bangalore under the Medical Super Vision of ENT Specialist. So, the Complainant has registered the Consumer Complaint claiming Rs. 12,000/- as compensation for negligent and wrong treatment on the part of Dr. Himachal Das and Dr. Sankhajyoti Saha. The Consumer Complaint was contested by Dr. Das and Dr. Saha by separate W.V and Dr. Das in his W.V mentioned that the patient was brought by her mother at his chamber for the first time on 24.01.2014 with a history of cough for five days and her second visit was on 03.04.2014 at the instance Dr. Das advised the patient party for XRAY and blood test of the patient but the said test was done after gap of one month and for that reason the problem of the patient became exaggerated for not following the doctors advice properly and after consulting with the XRAY report and blood report it was diagnosed as Bronchitis and further medicine was prescribed for the same. Dr. Saha O.P No. 2 in his Written Version says that the patient at first came to his chamber with a history of lethargy, tiredness, loss of appetite, low grade fever on 11.05.2014 and again the patient was advised for chest XRAY, blood test on 18.05.2014. The patient came with such reports and found that blood report was quite normal but the chest XRAY shows an impression of shadow for which advised for sputum test. Thereafter, the patient never came to his chamber for further treatment. So, the false and frivolous complaint should be dismissed. The CMOH, Malda and diagnostic center also filed the W.V but did not contest the case. The Complainant in this case was examined as P.W.1 and she was cross-examined. The O.P Nos. 1 and 2. Dr. S. Saha and Dr. Das was examined. Ld. Forum completed the process of adjudication by this Final Order with observation that there was no evidence on record to hold that Dr. H. Das and Dr. S. Saha did not perform their duty with required skill and standard care. Ld. Forum observed from the end of the physicians proper medical mind was applied for the treatment of such patient in a prudent manner and no negligence on their part were proved. So, Ld. Forum arrived to a conclusion that the Complainant has failed to prove the case of medical negligence and for that reason, the Consumer Complaint was dismissed. Being aggrieved with this order this appeal follows on the ground that observation of Ld. Forum was impractical, unethical with full of errors and liable to be set aside.
The appeal was registered on 15.01.2021 against Dr. H. Das and Dr. S. Saha and Sonuscan Health Pvt. Ltd. & Others as respondent Nos. 1 to 7 including Dr. A.K. Dutta. Amongst the respondents only respondent No. 1 to 3 have contested the appeal through Ld. Advocate Mr. D. Banerjee. The case of the appellant was moved by Ld. Advocate Mr. J. Chowdhury. The appeal was heard in presence of both sides.
Decision with reasons
On behalf of the appellant, it is argued that both the Dr. H. Das and Dr. S. Saha. During the course of treatment of the patient Sweet Halder diagnosed the disorder as Bronchitis but actually the patient was suffering from other ailments and for that reason the Superficial prescribed of medicines caused serious damage to the body and the health of the patient. He further argued at first Dr. H. Das prescribed some steroid medicines very uncarefully and for that reason the patient had to suffer facial ulcer. Ld. Advocate of the appellant further mentioned that Dr. S Saha in his prescription clearly mentioned that the patient was suffering and facing difficulties to swallow which means that due to unnecessary application of steroid medicines has caused the loss of diameter of Larynx of the patient. He, further argued that Dr. Saha and Dr. Das had not applied their mind properly at the time of treatment of the patient, standard of care was not adopted at the time of entering the treatment of the patient Sweet Halder and for that reason a small and tender aged boy had to suffer a lot and his widow mother somehow managed to continue his treatment and she used her last penny to take her son to Bangalore for a long treatment and such harassment and trouble she had to endure for the act of negligence on the part of the O.P Nos. 1 and 2 in this case. Ld. Advocate of the respondent No. 1 to 3 categorically denied all the allegations levelled against his clients by the end of the appellant and contended that Dr. Das the respondent No. 1 a well-known physician has examined patient by applying his full skill and knowledge and proper treatment was rendered on the basis of symptoms of clinical findings and investigations. He, further argued that Dr. Saha also a qualified physicians to whom the patient was brought for the first time on 11.05.2014 and proper treatment was rendered towards the patient and suggested some clinical examination and after preliminary examination only a shadow was seen in the chest of the patient. The patient was advised during the course of treatment the condition of the patient would gradually develop and in third occasion the patient party was directed to have a sputum FFB test for three days but the advice of the doctor was not followed on the part of the patient party. He further argued that the Complainant raised allegations of negligence against the renounced physicians without having any opinion of expert. The Complainant raises the allegations of negligence against O.P No. 1 and 2 only on the basis of the statement of Dr. A.K. Dutta. But Dr. A.K. Dutta was not called as witness to prove that the condition of the patient was deteriorated due to wrong and negligent treatment on the part of Dr. Das and Dr. Saha. So, the Ld. Forum has rightly observed that there was no fault or negligence on the part of Dr. Saha and Dr. Das during the course of treatment of patient Sweet Halder and for that reason there was no chance to get in relief by pursuing a false Consumer Complaint before the Ld. Forum.
After, consulting the oral, documentary evidences and after going through the pleadings of the parties and after hearing the valuable arguments of Ld. Legal Counsels of both sides it appears to this Bench that the allegation of medical negligence against any physicians should be handled very carefully as because the term medical negligence has many aspects rather than simple negligence. The term negligence as a law of tort is the breach of duty caused by Commission to do something which a reasonable man would not do or by omission not doing something which a prudent and reasonable man would do and to detect such negligence on the part of the doctor in the case of medical negligence some tests shall have to be adopted to determine the same and in that score if the negligence speaks itself from the act and conduct directly on the part of the treating doctors then it is very imperative to obtain an expert opinion in this regard to hold whether there was any negligence at the time of treatment of the patient by the doctors. In absence of such report a purposeful adjudication or a perfect adjudication could not be possible in the case of medical negligence. Unless, the allegation of negligence speaks itself that is negligence perse. Here in this case neither the Complainant took any attempt for referring the matter to an expert for obtaining the opinion nor the Ld. Forum Sou-motu referred the matter for an expert opinion from any Medical College or Hospital. Here in this case undoubtedly a poor widow in helpless condition tried to safe life of her minor son by spending a huge money and lost her all savings and property to safe the child and thereafter came to the Consumer Forum for getting some compensation. She is not a medical expert. Her case based on the information provided t o her by Dr. A.K. Dutta and the doctors who attended the patient Sweet Halder at Vedehi Hospital at Bangalore. Neither, the doctors of Bangalore or Dr. A.K. Dutta were called as witness of this case to authenticate the statement of the Complainant. On the other hand, Ld. Forum also has not taken any initiative to obtain an opinion from a medical expert before adjudication of the case. So, the best process of this case to be adopted by referring the matter to medical expert for obtaining opinion and after collecting opinion of the medical expert the instant dispute should be adjudicated in a rightful manner and for that reason, the Judgement and Final Order delivered by the Ld. Forum should be set aside.
Hence, it’s ordered
That the appeal be and the same is hereby allowed on contest without any cost. The Final Order and Judgement delivered by Ld. D.C.D.R.F., Malda dated 04.12.2020 in DFC No 49 of 2016 stands set aside. Ld. D.C.D.R.F., Malda is requested to reopen the case and to refer the matter with all the necessary documents in consultation of both parties to this case to a medical expert and obtain an opinion and if the Complainant intends to call Dr. A.K. Dutta or attending doctors of Vedehi Hospital at Bangalore as witnesses then such prayer should be entertained. After, collecting all the opinions Ld. Forum must hear the arguments afresh and deliver a Final Order.
Let a copy of this order be handed over to the parties free of cost and the same to be communicated to the Ld. D.C.D.R.F., Malda. Both contesting parties of this case are asked to appear before the Ld. Forum on 18.01.2022 for further process of the case.