Ld Advocates are present. Judgement is ready. It is pronounced in open Commission in 6 pages 3 separate sheet of papers.
BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case is that the Complainant is a permanent resident of the above address and poor bonafide consumer. The op party No.-1 is the specialist eye Doctor of the above eye foundation who treated and operated eye of the complainant patient. The OP. Party No.2 is the eye Hospital situated at Kolkata Branch Office at Tamluk Hospital More where the complainant went for treatment. On 07.04.2014 the Complainant was first treated by doctor Ajoy Pal then Dr. Ajoy Pal referred to Dr. Krishnendu Nandi, the Doctor of B.B. Eye foundation. He is the eye specialist Doctor. On 09.04.2014 Dr. Nandi admitted the patient after doing medical test of the patient ; she was operated on 10.04.2014 and there after the patient was discharged on 14.04.2014. After a few days later the complainant patient felt that she has lost her vision. Again she came to Dr. Nandi who examined her on 11.07.2014, again he repeated operation on 24.07.2014. But the complainant patient received no results. There after she again came to Dr Nandi on 22.09.2014 & 27.10.2014 for the loosing of the vision. Then Dr. Nandi examined the patient thoroughly and declared that he has nothing to do for restoring her vision. Thereafter, the complainant went to N.H. Rotary Narayana Netralaya at CN-5, Sector V Salt Lake City, Kolkata-700091 dated 26.05.2015 for treatment but got no result. Thereafter, the Complainant went to Purba Medinipur District Hospital and obtained 100% disable certificate No.-27473 on 28.09.2018. Under the above circumstances, the complainant has no other alternative but to come before this court as the complainant is a blind woman and is not able to go to Kolkata and as the complainant is the permanent resident of the above address. After the Complainant wrote complain dated 15.02.2016, 22.01.2016, & 14.06.2017 and again wrote complain to D.L.S.A. Purba Medinipore on 3rd May 2019. The cause of action arose on 12.06.2019. Therefore, the complainant prays for an order directing the Opposite Party No-1 to pay Rs. 19,90,000/- for medical bill and compensation and Mental Agony and Harassment and Rs. 10,000/- as litigation Cost Rs. 20,00,000/- to give the other relief to the Complainant which the Commission may deem fit and proper.
Notices have been duly served upon the ops. The Opposite Party No.2 has contested the case by filing written version on 31.01.2022. As the op-1 did not turn up, the proceeding of the case ran ex-parte against him vide order dated 28.12.2022.
The sum and summarisation of the written version of the OP-2 can be stated as follows: The Complainant has no cause of action to initiate the instant proceeding against the answering Opposite Party No.2 the complaint is barred by law 0f limitation. There is no specific allegation of breach of duty and any professional misconduct against the answering Opposite Party No.2 In the complaint petition, there has been no allegation against the answering Opposite Party No.2 from which the cause of action against the answering Opposite Party for filing he said application arose. Over the years the Opposite Party No. 2 has acquired a good reputation because of its high standard of medical treatment. The equipment and machinery used by the Hospital are on regular maintenance and sterilization. The answering Opposite Party is not guilty of any deficiency of service nor has collected/charged excess money from the beneficiaries. The Complainant went to the Opposite Party no.2 after retinal surgery done in the right eye by Dr. Krishnendu Nandi (hereby referred to as OP No.1) ,the Doctor of B.B. Eye Foundation. Thereafter, the complainant visited O.P No.2 for further course of treatment and medical examination of the eye on which the surgery was done by O.P. No.1 After examination her best corrected visual acuity was perception of light in both the eyes with inaccurate projection of rays in the right eye. 0n examination of the right eye showed pseudophakia and left eye showed cataractous changes with upper lid entropion and corneal opacity. The complainant was advised entropion correction followed by cataract surgery in the left eye under very guarded visual prognosis. After this patient never came back for further check up. With reference to the allegations made in paragraphs 1 to 6 of the complaint petition, the answering opposite Party No.2 deny all allegations made therein apart from what are matters of record. It is specifically stated that the complainant visited O.P No.2 hospital after retinal surgery done elsewhere in the right eye on April 2014. She is a known patient of Systemic Hypertension. She complained of poor vision. The complainant was advised entropion correction followed by cataract surgery in the left eye under very guarded visual prognosis. After this ,patient never came back for further check up. Therefore, no claim of the Complainant is maintainable and/or claimed as against the O.P No.2 as the case is liable to be dismissed.
After careful consideration of the complain, written version, evidences presented and arguments, the following points were framed for consideration.
1. Whether the complaint is maintainable in its present form and in law?
2. Whether the patient Mst. Sahida Bibi was given treatment as per protocol and guidelines without and deficiency or negligence?
3. If there was negligence or deficiency, what is the compensation to be given to the complainant?
4. To what other relief the complainant is entitled ?
Decision with reasons
In re: Point no-1
We have carefully read, analysed and evaluated the complaint supported by affidavit ,written version of the OP-2 evidence on record i.e examination in chief on affidavit( op-2 did not opt for filing questionnaire vide order dated 06.07.2023).
Now,it is evident from the evidence of the complainant that she deposed that on 07.04.2014 she was first treated by doctor Ajoy Pal then Dr. Ajoy Pal referred to Dr. Krishnendu Nandi ,the Doctor of B.B. Eye foundation. He is the eye specialist Doctor. On 09.04.2014 Dr. Nandi admitted the patient after medical test of the patient /complainant , she was operated on 10.04.2014 and there after the patient was discharged on 14.04.2014. After a few days the complainant patient felt that she has lost her vision. Again she came to the Dr. Nandi who examined her on 11.07.2014, again repeated operation on 24.07.2014. But the complainant patient received no result. There after she again came to Nandi on 22.09.2014 & 27.10.2014 for the loosing of the vision. Then Dr. Nandi examined the patient thoroughly and declared that he has nothing to do for restoring her vision. Thereafter the complainant went to N.H. Rotary NarayanaNetralaya at CN-5, Sector V Salt Lake City, Kolkata-700091 dated 26.05.2015 for treatment but got no result. Thereafter, the Complainant went to Purba Medinipur District Hospital and obtained 100% disable certificate No.-27473.
On examining the matter of law of limitation involved in this case, let us read the catena of decisions of the Hon’ble Apex Court. TheHon’ble Supreme Court in Oriental Aroma Chemical Industries Limited VsGujrat Industrial Development Corporation,(2010) 5 SCC 459 has observed “the law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be, kept alive for a period fixed by the legislature. To put it differently thelaw of limitation prescribes a period with in which legal remedy can be availed for redress of the legal injury . At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”
The complaint was filed after delay of more than 1155 days . On careful perusal of the complaint and medical papers, the cause of action arose on 27.10.2014 but the complaint was filed on 20 .01. 2020. The complainant has neither explained the day to delay nor filed any cogent evidence to explain the huge delay’
We would like to rely on the decision of the Hon’ble Supreme Court in the case of R.B.RamalingamvsR.B.Bhabaneswari I (2009)CLT188(SC)that if the party who has not acted diligently or remains inactive is not entitled for condonation of delay.
In the instant case the Complainant failed to explain the sufficient cause for the huge delay. The Hon’ble Supreme Court , in the case of Kandimalla Raghaviah & co. vs National Insurance Company Ltd,(2009) 7 SCC 768 held that a Consumer complaint filed beyond the period of two years of the cause of action can not be entertained, unless there are sufficient cause .
It is the averment of the complaint is that she again came to Dr. Nandi on 22.09.2014 & 27.10.2014 for the loosing of the vision. The complainant lastly consulted the op-1 on 27.10. 2016. Then Dr. Nandi examined the patient thoroughly and declared that he has nothing to do for restoring her vision. After the Complainant wrote complain dated 15.02.2016, 22.01.2016, & 14.06.2017. She wrote to the D.L.S.A. Purba Medinipur on 3rd May 2019. According to complainant the cause of action arose on 12.06.2019. The complainant has failed to explain as to how the cause of action arose on 12.06.2019 .Actually the cause of action arose on 27.10.2014 when she visited for last time for consultation with the doctor/op-1. The Complaint was filed on 20.01.2020, after a delay of more than 3 years 3 months i.e 1165 days. Mere writing complains to the respondents different dates or to the D.L.S.A. Purba Medinipur on 3rd May 2019 does not permit extension of period of limitation.
The Hon’ble Supreme Court in State of Tripura &OrsvsArabindaChakraborty&Ors reported in in(2014) 6 SCC 460 has held….The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representation for years and in such an event the period of limitation would not commence from the date on which the last representation is decided..”
The Hon’ble NCDRC in Mahesh Nensi Shah Vs Oriental Insurance Co. Ltd reported III (2006) CPJ 414 has observed that “no amount of correspondence between the parties can extend the period of limitation”.
As such , the instant complaint is hopelessly barred by limitation. The complaint is not maintainable in its present form in law.
In re: Points, 2,3&4
The points, 2,3 &4 being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
On careful scrutiny of the complaint, it is evident that complainant has made no specific allegation of breach of duty and any professional misconduct against the Opposite Parties, She has not specifically narrated as to how op-1 failed to make duty of care in deciding whether to undertake the case, or a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. She has also failed to narrate how op-1 made breach of any of those duties given a right of action for negligence to the patient or how the op-1/ practitioner made dereliction of his duty to bring to his task a reasonable degree of skill and knowledge and or did not exercise a reasonable degree of care etc.
A three judge Bench of the Hon’ble Apex Court in Dr. LaxcmanBalkrishna Joshi v Dr. Trimbak Bapu Godbole stipulated that the standard to be applied by a medical practitioner must be of a reasonable degree of care”..
“11. The duties which a doctor owes to his patient are clear. A person who hold himself and ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owed him certain duties viz a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties given a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires (cf. Halsbury”s Laws of England 3rdEdn. Vol. 26 p. 17)”.
In Jacob Mathew v State of Punjab, a three judge Bench of the Hon’bleSupreme Court upheld the standard of the ordinary competent medical practitioner exercising an ordinary degree of professional skill, as enunciated in Bolam (supra). The Court held that the standard of care must be in accordance with “general and approved practice”.
“24. The classical statement of law in Bolam has been widely accepted as decisive of othe standard of care required both of professional men generally and medical practitioners in particular.
It has been invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and skill attained was that of the originally a competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, that standard of care, which assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used.”
After discussing the applicability of Bolam Test in the present day context, the Hon’ble Supreme Court held that the Bolam test is applicable for deciding medical negligence cases in the following words.
“41. Our law must take into account advances in medical sciences and ensure that a patient – centric approach is adopted. The standard of care as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts. Significantly, the standard adopted by the three-judge bench of this Court in Jacob Matthew includes the requirement that the course adopted by the medical professional be consistent with “general and approved practice” and we are bound by this decision.”
In the Jacob Mathew case Vs State of Punjab Hon’ble Supreme Court concluded-
1. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human efforts would do or doing something which a prudent and reasonable man would not do ...The essential components of negligence are three: “duty “breach “ and “ resulting damage”.
2. Negligence in the conduct of the medical profession necessarily calls for a treatment with a difference. ...A simple lack of care, an error of judgement or an accident is not proof of negligence on the part of medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day he can not be held liable for negligence merely because better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient. A failure to use special or external precautions which might have prevented the particular happening can not be the standard for judging the alleged negligence.
3. A professional may be held liable for negligence on one of the two finds: either he was not processed of the requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. 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 not possible for every professional to possess the highest level of expertise or skills in that branch which he practices.
4. The test for determining medical intelligence as laid down in Bolama case 1957 holds goods in its applicability in India.”
In Martin F.D.’ Souza vs. Mohd.Ishfaqon 17 February, 2009 the Hon’ble Supreme Court observed
“112. It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is,”
In Kusum Sharma vsBatra Hospitals Hon’ble Supreme Court held
“89. While deciding whether the medical professional is guilty of medical negligence following well known principles must be in view:-
Negligence is not breach of a duty exercised by omission to do something which is a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonable competent practitioner in his field.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
On evaluation of the facts and circumstances of the case on the touchstone of above cited principles of law, we are of the opinion that the patient Mst. Sahida Bibi was given treatment as per protocol and guidelines without any deficiency or negligence. Besides, no relief has been claimed as against op-2 in para-11 of the complaint. There was no negligence or deficiency on the part of either the op 1 or the op- 2 of this case. The Complainant has failed to bring home any element of negligence and deficiency in service against the ops 1 & 2.The complainant is not entitled to get any relief in this case.
Consequently, all the points are decided against the Complainant.
Thus, the case does not succeed.
Hence, it is
O R D E R E D
That the CC/29 of 2020 be and the same is dismissed ex-parte against the op-1, on contest against the op-2; no order as to costs is passed.
Let a copy of the judgment be supplied to each of the parties, i.e the complainant and the op-2 free of cost.
