Ld. Advocate(s)
For Complainant: Debraj Das
For OP/OPs : Kajal Ghosh
Date of filing of the case :12.04.2018
Date of Disposal of the case : 04.05.2023
Final Order / Judgment dtd.04.05.2023
Complainant above named filed the present complaint u/s 12 of the Consumer Protection Act, 1986 against the aforesaid opposite parties praying for cost of treatment amounting to Rs.60,000/-(Rupees Sixty thousand), compensation amounting to Rs.18,00,000/- (Rupees Eighteen lakh) and Rs.10,000/- (Rupees Ten thousand) as cost of the case.
He alleged in the petition of complaint that complainant was suffering with cataract problem and he visited first time before the Department of Eye, Nadia District Hospital and after payment of fees, he was admitted on 31.10.2016 and was released from Nadia District Hospital for his Pheco surgery of his right eye on 02.11.2016 and OP NO.1 being the ophthalmologist conducted the said surgery. He also gave some medicines and complainant purchased the same from the medicine shop. The pheco emulsification surgery is a very simple and common surgery of eye. A small surgical instrument (phaco probe) was inserted into the eye. Sound waves (ultrasound) were used to break the cataract into small pieces. After aforesaid cataract surgery complainant felt some problem. After surgery he was facing much pain, redness in his right eye on 05.11.2016 and he further went to hospital but attending doctor was not available as he was busy with his private chamber and nursing home. Thereafter, he went to the private chamber of OP NO.1 on 05.11.2016 but on that date OP NO.1 was not available at his chamber. On 06.11.2016 he again went to the chamber of OP No.1 and OP No.1 treated him after receipt of fees. OP NO.1 prescribed some medicines along with eye drops and complainant purchased those medicines but he did not get fruitful result. But condition of the complainant was not improved. His pain was increased and redness of eye was increased. Thereafter, he went before Pro-OP No.1 Dr. Sudip Dutta at Chakdaha. He examined the complainant in his private chamber carefully and prescribed some medicines and advised him to immediately visit Disha Eye Hospital for his better treatment. Thereafter, complainant went to Disha Eye
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Hospital on 15.11.2016 and Pro-OP NO.2 Dr. Santanu Mondal treated him and advised some tests and also directed him to visit further on 17.11.2016. Attending doctor of Disha Eye Hospital Private Limited after examining all the reports and the condition of the complainant admitted him into Disha Eye Hospital Private Limited at Barrackpore on 17.11.2016 being reference no. PO01974170 and complainant was continuously treated by Dr. S. Mondal (Pro-OP No.2) on various occasions and he prescribed some medicines and also advised for some eye drop but no such fruitful result was found. They stated that the condition of the right eye of the complainant is very poor. It is very unfortunate that subsequently on 06.12.2016 right eye of the complainant was totally damaged and he became obsolete blind in his right and complainant continues his treatment in Disha Eye Hospital on various occasions but attending doctor stated that he has nothing to do as because there is no view of fundus of the retina of his right eye but advised him to use some medicines along with eye drops. On 09.03.2017 complainant visited before doctor S. Dutta (Pro-OP NO.1) but no such fruitful result has came out. He actually asked him to take proper care. For the aforesaid treatment complainant spent Rs.60,000/- (Rupees Sixty thousand) but ultimately lost his vision in the right eye for the negligence of OP NO.1. Hence, he filed this case and prayed the aforesaid relief.
OP No.1 contest the case by filing a W/V and denied the entire allegations. He stated that complainant took admission on 31.10.2016 for cataract operation in the District Hospital and after surgery he was released on 02.11.2016 with proper advise but complainant suppressed those documents, thereafter complainant came before him on 06.11.2016 for the first time and on that time he after examination for the complainant advised proper medicine to fight against infection. Thereafter, complainant did not turn up before him for further follow up. Thereafter, he was treated at Disha Eye Hospital Private Limited with the complaint of post operative endophthalmitis which is one kind of bacterial infection and it is also evident from the documents of Disha Eye Hospital dated 16.12.2016 wherein has clearly mentioned that the patient was suffering from conjuctive which is a very common eye infection due to local environment and ultimately doctor Prescribed combiflam. As such there is no negligence on the part of OP NO.1. He provided post available service and care and documents will speak the truth. There is no deficiency in the service on the part of OP NO.1. He prays for dismissal of the case.
Pro-OP NO.1 Dr. S. Dutta contest the case by filing W/V, he denied the entire allegations and further stated that Pro-OP NO.1 is well-known Nursing Home and it has efficient staffs. He took care of the complainant and gave proper service. There are no latches on his part. He prayed for dismissal of the case.
Pro-OP NO.2 contests the case by filing separate W.V and denied the entire allegations. He further stated that on 10.11.2016 complainant came to Disha Eye Hospital i.e on 10th post operative day and it was diagnosed as a case of acute post operative endothalmologist. The present vision in the right eye was perception
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light and incoroborate projection of rays whereas in the left eye vision was 6/9, there was no view of his right eye to anterior segment inflammation and suspected vitreous exudates initially. Patient came for follow up on 6th December, 2016 but at that time his vision was dropped down to PL negative patient again came on 16.12.2016, 27.12.2016,10.01.2017, 31.01.2017, 03.03.2017, 09.05.2017, 07.11.2017 and 08.05.2018. He further stated that this case of acute fluming post operative endopathologist which was treated extensively at Disha Eye Hospital to control the infection. The infection was controlled and it was prevented evisceration of the right eye, but unfortunately due to severity of the infection the eye became phthisical. He prays for dismissal of the case.
Pro-OP NO.3 also contest the case by filing a separate W/V. He denied the entire allegations and further stated that there is no negligence on his part. He prays for the dismissal of the case.
Trial
During trial complainant filed affidavit in chief. Interrogatories were filed by on behalf of all the OPs and complainant gave the answer. OP NO.1 filed affidavit in chief and interrogatories were filed by the complainant and OP NO.1 gave the answer. Pro-OP NO.2 by filing a petition stated that his W.V be treated as his evidence as on affidavit in chief.
Brief Notes of Argument
Complainant filed BNA on 19.04.2023. OP No.1 filed BNA on 19.04.2023.
Report of Medical Board:-
“One Medical Board was formed by Superintendent District Hospital as per order of this Commission and Medical Board after examining the documents submitted a report on 19.05.2018.”
Documents
Complainant produced the following documents viz :
1) Discharge Certificate issued by Nadia District Hospital dtd. 02.11.2016........(One sheet)......(Xerox).....(Annex-A)
2) Prescription of Dr. I. Ahmed dtd.06.11.2016.....(One sheet).......(Xerox)......(Annex-B)
3) Slip Pad of Win Pharmacy dtd. 02.11.2016.....(One sheet).......(Xerox)......(Annex-C/1)
4) Prescription of Dr. Sudip Datta dtd. 09.03.2017.....(One sheet).......(Xerox)......(Annex-D/1)
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5)Prescription of Dr. Sudip Datta dtd. 10.11.2016.....(One sheet).......(Xerox)......(Annex-D/2)
6) Blood Report issued by CBDA Policyclinic & Diagnostic Centre dtd. 16.11.2016.....(One sheet).......(Xerox)......(Annex-E)
7) Cash Memo issued by M/S. Madhuri Medical hall dtd. 16.11.2016........(One sheet).......(Xerox)......(Annex-F/1)
8) Booking slip issued by CBDA Polyclinic & Diagnostic Centre dtd. 16.11.2016........(three sheets).......(Xerox)..........(Annex-F/2)
9)Discharge Certificate of Disha Eye Hospitals Pvt. Ltd. dtd. 18.11.2016.......(One sheet)........(Xerox).......(Annex-G)
10) Document of Disha eye Hospital Pvt. Ltd. dtd. 15.11.2016.......(One sheet)........(Xerox).......(Annex-H/1)
11) Document of Disha eye Hospital Pvt. Ltd. dtd. 20.12.2016.......(One sheet)........(Xerox).......(Annex-H/2)
12) Document of Disha eye Hospital Pvt. Ltd. dtd. 16.12.2016.......(One sheet)........(Xerox).......(Annex-H/3)
13) Document of Disha eye Hospital Pvt. Ltd. dtd. 02.12.2016.......(One sheet)........(Xerox).......(Annex-H/4)
14) Document of Disha eye Hospital Pvt. Ltd. dtd. 06.12.2016.......(One sheet)........(Xerox).......(Annex-H/5)
15) Document of Disha eye Hospital Pvt. Ltd. dtd. 27.12.2016.......(One sheet)........(Xerox).......(Annex-H/6)
16) Document of Disha eye Hospital Pvt. Ltd. dtd. 10.01.2017.......(One sheet)........(Xerox).......(Annex-H/7)
17) Document of Disha eye Hospital Pvt. Ltd. dtd. 31.01.2017.......(One sheet)........(Xerox).......(Annex-H/8)
18) Document of Disha eye Hospital Pvt. Ltd. dtd. 03.03.2017.......(One sheet)........(Xerox).......(Annex-H/9)
19) Document of Disha eye Hospital Pvt. Ltd. dtd. 09.05.2017.......(One sheet)........(Xerox).......(Annex-H/10)
20) Document of Disha eye Hospital Pvt. Ltd. dtd. 10.11.2016.......(One sheet)........(Xerox).......(Annex-H/11)
21) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/1)
22) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/2)
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23) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/3)
24) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/4)
25) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/5)
26) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/6)
27) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/7)
28) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/8)
29) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/9)
30) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/10)
31) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/11)
32) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/12)
33) Cash/Credit Memo of Disha eye Hospital Pvt. Ltd........(One sheet)........(Xerox).......(Annex-I/13)
34) Advance Receipt of Disha eye Hospital Pvt. Ltd Delivery dtd.09.05.2017........(One sheet)........(Xerox).......(Annex-I/14)
35) Tax Invoice Receipt of Disha eye Hospital Pvt. dtd.09.05.2017........(One sheet)........(Xerox).......(Annex-I/15)
36) Cash Memo/ Bill of Disha eye Hospital Pvt. dtd.17.11.2016........(One sheet)........(Xerox).......(Annex-I/16)
37) Surgery Estimate of Disha eye Hospital Pvt. dtd.15.11.2016........(One sheet)........(Xerox).......(Annex-I/17)
38) Cash/Credit Memo of Disha eye Hospital Pvt. dtd.18.11.2016........(One sheet)........(Xerox).......(Annex-I/18)
39) Money Receipt of Disha eye Hospital Pvt. dtd.10.11.2016........(One sheet)........(Xerox).......(Annex-J/1)
40) Money Receipt of Disha eye Hospital Pvt. dtd.15.11.2016........(One sheet)........(Xerox).......(Annex-J/2)
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41) Money Receipt of Disha eye Hospital Pvt. dtd.02.12.2016........(One sheet)........(Xerox).......(Annex-J/3)
42) Money Receipt of Disha eye Hospital Pvt. dtd.06.12.2016........(One sheet)........(Xerox).......(Annex-J/4)
43) Money Receipt of Disha eye Hospital Pvt. dtd.20.12.2016........(One sheet)........(Xerox).......(Annex-J/5)
44) Money Receipt of Disha eye Hospital Pvt. dtd.10.01.2017........(One sheet)........(Xerox).......(Annex-J/6)
45) Money Receipt of Disha eye Hospital Pvt. dtd.03.03.2017........(One sheet)........(Xerox).......(Annex-J/7)
46) Money Receipt of Disha eye Hospital Pvt. dtd.09.05.2017........(One sheet)........(Xerox).......(Annex-J/8)
47) Money Receipt of Disha eye Hospital Pvt. dtd.16.12.2016........(One sheet)........(Xerox).......(Annex-J/9)
48) Money Receipt of Disha eye Hospital Pvt. dtd.31.01.2017........(One sheet)........(Xerox).......(Annex-J/10)
Pro-OP No.2 with his W.V produced the followed documents:-
- Xerox of net copy..............(Seven sheets).........(Annex.A)
- Xerox of net copy.............(Nine sheets)..........(Annex.B)
- Xerox copy of document of Disha Eye Hospitals Pvt. Ltd..........(Thirteen sheets)
Original documents relating to the treatment of the complainant not yet been filed.
Decision with Reasons
Complainant alleged in para-5 of the petition of complaint that operation in the right eye of the complainant was done at Nadia District Hospital on 05.11.2016 and OP No.1 done the same with purely negligent manner and after the operation OP No.1-2 did not take minimum care. It is nothing but a pure medical negligence on the part of OP NO.1-2. He further alleged that Pro-OP NO.2 stated to the complainant that the right eye of the complainant was purely lost case due to previous operation was done negligently. On careful perusal of the documents on record, we find from the discharge certificate issued by Nadia District Hospital dated 02.11.2016, we find that complainant was admitted at Nadia District Hospital on 31.10.2016 and he was discharged from the said hospital on 02.11.2016.
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Complainant admitted in the petition of complaint that he was admitted at Nadia District Hospital on 31.10.2016 and was released on 02.11.2016. He was admitted there for phaco surgery on his right eye under the OP No.1. So, it is admitted position that OP No.1 conducted the phaco surgery over the right eye of the complainant.
It is the further allegation of the complainant that after the said operation some complications were arisen and for that reason complainant went to the private chamber of OP No.1 but on that time he did not give proper treatment. On perusal of prescription dated 06.11.2016, we find that complainant was treated before OP NO.1 on 06.11.2016. On that time he advised some medicines.
Ld. Advocate for the complainant argued that on that date OP NO.1 did not give proper treatment and for that reason complainant lost his vision on the right eye but complainant did not lodge any such complaint in his petition of complaint. In the petition of complaint complainant alleged in para-5 of the petition of complaint that operation was done with purely negligence manner and after the operation of the right eye of the complainant OP NO.1-2 did not take minimum degree of care.
On perusal of record, we find that complainant continued his treatment before the Pro-OP NO.1-3.Complainant continued his treatment before the Pro-OP NO.2-3 for the period from 10.11.2016 to till 08.05.2018 and he produced the treatment papers.
Complainant failed to produce any opinion of any doctor where from it can be ascertained that OP NO.1 on 06.11.2016 did not give proper treatment to the complainant. On careful proposal of the petition of complaint, we find that OP NO.2 is a government hospital and OP NO.1 is the doctor of a government hospital. We are also find from the petition of complaint that OP No.1 being a doctor of government hospital conducted operation in the right eye of the complainant. It is the grievance of the complainant that OP No.1 being a doctor of government hospital not yet done the said operation in proper manner rather operation was done by him with a negligence manner. So it is clear this Commission that complainant alleged that OP NO.1 being a doctor of a government hospital did the operation in negligence manner. Complainant failed to produce any money receipt which were issued by OP No.1 and 2 at the time of said operation.
"In this context we have carefully gone through the decision of Hon’ble Supreme Court in Indian Medical Association v. V.P. Shanta reported in AIR 1996 SC 550 [1995 (3) CPJ 1 (SC) , 1995 (3) CTJ 969 (SC) (CP)].
We find that Hon’ble Justice Kuldip Singh, Hon’ble Justice S.C. Agrawal and Hon’ble Justice B.L. Hansaria passed the said judgement on 13.11.1995.
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Hon’ble Supreme Court in this common judgment decided a writ petition and two appeals by special leave. A common question that has arisen is whether and , if so, in what circumstances a medical practitioner can be regarded as rendering service under section 2(1) (o) of Consumer Protection Act 1986.
Connected with this question was the question whether the service rendered at a hospital/nursing home could be regarded as service.
Hon’ble Supreme Court after examining number of foreign Judgments, medical literature, and Indian decisions in civil suits, consumer complaints and writ petitions dealing with medical negligence held :-
- Service rendered free of charge by a Medical Practitioner attached to a Hospital/nursing home, all medical officers employed in a hospital/nursing home where such services are rendered free of charge to all, is not a “service” under the Act.
- Service rendered in a non-government hospital/nursing home where no charge is collected from all patients is not covered by the Act.
- But, service rendered at non-governmental hospital/nursing home where charges are collected from some and non collected from some others, falls under 2(1) (o) of the Act, irrespective of the fact that the service rendered free of charge to some poor persons. The patient obtaining free service is also a consumer under the Act.
- Service rendered at Government hospital/health centre/dispensary where no charge is levied on any patient is outside the purview of the Act.
- But, service rendered at a Government Hospital/health centre/dispensary where services are rendered on payment of charge to some and rendered free of charge to other persons, falls under Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to some poor persons. The patient obtaining free service in such case also is a consumer under the Act.
- Where as a part of consideration of service the employer bears the expenses of medical treatment of an employee and his family members, the service to such an employee and his dependents by a Medical Practitioner or a hospital/nursing home would not be free of charge and would constitute “service” under the Act.
- In most government hospitals there are separate paying wards where affluent patients seek admission and the general ward where poor patients are treated free of charge. Both the types of patients are entitled to protection under the Act”.
Complainant stated in para-5 of the petition of complaint that no relief is claimed against proforma OPs but they made party in this case only for
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proper adjudication. We have stated earlier that the case is not maintainability against OP NO.1-2.
In the result present case fails.
Hence,
it is
Ordered
that the present case be and the same is dismissed on contest against OP No.1-2 and Pro-OP No.1-3 but no order as to costs.
Let a copy of this final order be supplied to the parties as free of cost.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
