West Bengal

Bankura

CC/41/2017

Sri Nibas Chandra Bauri - Complainant(s)

Versus

Dr. J. Maji - Opp.Party(s)

Durgaprasad Sarkar

08 Jan 2024

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA 

 Consumer Complaint No. 41/2017

        Date of Filing: 08/05/2017

                                            

Before:                                        

1. Samiran Dutta                            Ld. President.      

2. Siddhartha Sankar Bhui            Ld. Member. 

 

For the Complainant:  Ld. Advocate Jayanta Kumar Mukhopadhyay

For the O.P.1:  Ld. Advocate Sayanton Chowdhury

For the O.P.2:  Ld. Advocate Prasun Kumar Bandyopadhyay

 

Complainant  

Sri Nibas Chandra Bauri, since deceased, substituted by  1.Smt. Mina Bauri (wife) 2.Asit Kumar Bauri(Son) 3.Arabinda Kumar Bauri(Son) 4.Sajal Kumar Bauri(Son) 5.Aditya Kumar Bauri(Son) at village-Ranguni, P.O.&P.S.Adra, Dist.Purulia-723121                                                                                                                                   

Opposite Party 

1.Dr. J. Maji, Asst. Prof (Gen Surgery), BSMCH, Bankura  2.Bankua Nursing Home, Patpur, Bankura

 

FINAL ORDER / JUDGEMENT

 

Order No.36

Dated:08-01-2024

Both parties file hazira through advocate.

The case is fixed for argument.

After hearing argument from both sides the Commission proceeds to dispose of the case as hereunder: -

The Complainant’s case is that his bachelor son Ajoy Bouri (D.O.B. 15/01/1974) consulted O.P. No.1 on 11/06/2016 with complain of rectum pain and after clinical examination the O.P. No.1 advised for some investigations which were done at O.P. No.2/Nursing Home. Thereafter on 16/06/2016 he was admitted at O.P. No.2/Nursing Home for surgical operation of rectal polyp and remained hospitalized till discharge on 18/06/2016 but the victim patient felt unabated rectal pain and bleeding after the operation and though attention was drawn to this fact to O.P. No.1/Dr. lastly on 26/07/2016 but without any relief. Thereafter Dr. Sughangshu Sarkar was consulted  on 07/10/2016 and 09/10/2016 who advised for rectal biopsy  and other investigations and the hystopathological report revealed a malignant malonoma (cancer) and immediately thereafter on consultation with different doctors the victim patient moved to TATA Memorial Hospital, Mumbai for necessary treatment and management where it was affirmed that it is a case of malignant malonoma. The victim patient could not survive further and he expired subsequently. It is alleged by the Complainant that either prior to or subsequent to the operation no biopsy report of the victim patient was obtained by the O.P. Dr. /Nursing Home so as to confirm absence of malignancy which is the crying need in such type of operation. The Complainant has therefore approached this Commission alleging medical negligence and deficiency in service against both the O.P. doctors/Nursing Home claiming Rs.19 Lakh as pecuniary compensation with Litigation cost.                                                                                                                                    

                                                                                                                                                                                   Contd……p/2

Page: 2

O.P. No.1/Dr. contested the case by filing a written version contending inter alia that the rectum polyp operation was successively done by excision and the polyp sample was handed over to the accompanying person with advice for hystopathological examination and other part was kept in the Nursing Home in pathology intimation book. O.P. No.1/Dr. has therefore pleaded for no medical negligence and deficiency in service in the treatment and operation of said Ajoy Bouri and he could not be in anyway liable for detection of cancer at the subsequent stage.

O.P. No.2/Nursing Home also filed a written version to contest the case contending inter alia that all medical services have been provided to the patient at the pre and post operative operation stage as and when advised by the concerned Doctor and they have no medical negligence and deficiency in service in the treatment of the patient.

                                                                                       -: Decision with reasons: -

Having regard to the facts of the case, submission, contention and documents from both sides the Commission finds that admittedly the victim was a patient of rectum polyp for which he was operated by O.P. No.1/Dr. at O.P. No.2/Nursing Home and discharge certificate has accordingly been issued with the diagnosis rectal polyp but the O.P.Dr. / Nursing Home could not provide medical service for abating post operative rectum pain and bleeding. At the time of issuing Discharge Certificate no hystopathological report i.e. biopsy report was advised as if O.P. No.1 Dr./O.P. No.2 Nursing Home was confirmed of no suspected malignancy but their impression and diagnosis proved wrong as the subsequent hystopathological report dated: 25/11/2016 vide Annexure-22 at the instance of TATA Memorial Hospital, Mumbai clearly gave the evidence of malignant malonoma (cancer).

Though stated in the written version of O.P. No.1 that the polyp sample was sent for hystopathological examination but there is no evidence on record to that effect. Even the Discharge summary issued on 18/06/2016 (Annexure-5) does not show any such advice for hystopathological test.

The Commission is therefore of the view that at any point of time before/during/after the surgical treatment of the patient no attempt or effort was made on the part of O.P. No.1/Dr. and O.P. No.2/Nursing Home to undergo hystopathological test so as to remove doubt as to the presence of malignancy evidence. It is an act of disservice and deficiency in service falling short of the medical standard required for such type of surgical operation. Even without expert opinion it can be said that the patient had either the presence of malignancy before the operation or he developed such malignancy positive after the operation and in both cases report of hystopathological test is essential for confirmation of such fact but unfortunately O.P. No.1 Dr./O.P. No.2 Nursing Home have failed to do so deliberately out of their lack of medical care, skill and diligence. Such negligent act of O.P.No.1 Dr. / O.P. No.2 Nursing Home has accelerated the tragic premature death of the victim patient. O.P. No.1/Dr. is guilty of medical negligence and deficiency in service and the O.P. No.2/Nursing Home is vicariously liable for  overall mismanagement and medical disservice in the treatment of the victim.

                                                                                                                                                                                   Contd……p/3

Page: 3

Both the O.P.s are therefore jointly and severally liable to compensate the loss and injury to the tune of Rs. 15 Lakh for the premature death of the victim out of which O.P. No.1/Dr. shall pay Rs.10 Lakh and the rest Rs.5 Lakh is to be paid by the O.P. No.2 Nursing Home.

                                                                                                                                                       

Hence it is ordered……..

That the case be and the same is allowed on contest but without cost.

O.P. No.1 and O.P. No.2 are both directed jointly and severally to pay to the substituted Complainants or their nominated person (s) Rs.15 Lakh as the compensation in the manner as directed above for the premature death of said Ajay Bouri within one month from this date in default law will take its own course.

Both parties be supplied copy of this Judgement free of cost.

 

 ____________________                _________________         

HON’BLE   PRESIDENT          HON’BLE MEMBER