The instant complaint case has been filed by the complainant Ajay Kumar Mandal r/o Harnakundi road ,Purana Dumka ,P.O-Dumka, P.S –Dumka Town, District- Dumka against the O.P’s i.e.(1) Dr. M.Grace Kujoor,Incharge St. Ursula Health Centre,r/o Bakshi Bandh raod, Dumka, (Jharkhand ) and (2) United India Insurance company Limited, 104, 1st Floor Brindavan Kunj,Road Patna, (Bihar) U/S-12 of the Consumer Protection Act,1986 (hereinafter called as C.P.Act,1986) for medical negligency in post caesarian operational treatment and care of the complainant’s wife Shushma Sargam by Dr. M. Grace Kujoor, and thereby the complainant’s wife had to suffer unbearable pain and mental tension and the complainant was made to suffer huge financial loss and mental agony. The complainant has prayed to direct O.P’s to pay Rs.3,29,790/-( Three lac twenty nine thousand seven hundred ninety) by way of compensation for the suffering pain, mental agony and huge financial loss along with interest @ 12%p.a and also prayed to direct O.P’s to pay litigation cost.
2.The brief facts of the Complainant’s case as revealed in the complaint petition and documents annexed therein as well as from the short notes of argument of the complainant dated 11.05.2018 are as follows:-
That the complainant’s wife Shushma Sargam conceived in the month of January 2013. She was taken to St. Ursula Health Centre, Dumka where incharge doctor M.Grace Kujoor examined her on 16.02.2013 and after examination and conducting gynecological test of the complainant’s wife found her pregnancy positive .Thereafter the complainant’s wife has been visiting to the centre of the aforesaid doctor periodically. She visited the centre on 09.03.2013, 18.04.2013, 03.06.2013, 31.07.2013, 26.08.2013and 01.10.2013 and during the said visits the complainant had to pay consultancy fees of the doctor as well as charges towards investigation and medicines etc.
The further case of the complainant is that on 02.10.2013 during morning hour the wife of the complainant after having developed labour pain was admitted in the said St. Ursula Health Centre, Dumka at the advice of the doctor, where she was checked up and undergone pathological test. After obtaining reports from the pathological centre the said doctor conducted caesarion operation in the same night of 02.10.2013 and a female baby was born to the complainant’s wife. Thereafter as per doctor advice Smt. Shushma Sargam remained admitted in the Health Centre in a private room as indoor patient and was discharged on 10.10.2013. It is alleged that at the time of discharge the stitches of the surgery on the patient was not healed up hence, it was brought to the notice of the doctor but she did not prescribe any medicine rather advised that wound of surgery would automatically get cured in course of time. The complainant got his wife discharge in evening of 10.10.2013 from the health centre and took to his house. It is further stated that after two to three days the complainant’s wife started feeling problem on the place of stitch and the surrounding area and hence the complainant took his wife to the aforesaid health centre on 14.10.2013 and consulted the aforesaid doctor who only advised for dressing of the wound and did not prescribe any medicine. The complainant along with his wife has been visiting periodically to the health centre and consulting the doctor, who did not care the pain and sufferings of the complainant’s wife .It is alleged that despite unbearable pain at the stitching area of the complainant’s wife, no medicine was prescribed save and except dressing of the wound. It is also alleged that pain on the stitching wound and surrounding area gradually increased and pus begun to discharge from the site of the wound and on 09.12.2013 the complainant’s wife was again examined by the aforesaid doctor but again she did not prescribe any medicine.
It is further alleged that due to careless treatment of the aforesaid doctor the condition of the complainants wife went complicated and pus was continuously being discharged from the place of wound hence again the complainant visited with his wife to the O.P’s centre on 03.01.2014 but even after noticing that pus getting discharged from the wound and her condition was deteriorating the doctor did not prescribe any medicine. Therefore complainant for better treatment took his ailing wife to Maldah (W.B) on 06.01.2014 where Dr. S.N. Sharma examined the complainant’s wife and prescribed medicine and thereafter the complainant returned back with his wife to Dumka. Again the complainant went along with his wife to Maldah (W.B) on 11.01.2014 when the doctor immediately admitted complainants wife in the nursing home i.e. Dishari Health Point, where she under gone pathological test by the doctor and again she went in surgery on the place of wound and then prescribed some medicines .It is further more alleged that during the said surgery the complainants wife had to undergo un bearable pain and mental tension .The complainants wife was discharged from the said Dishari Health Point on 19.01.2014 however she stayed at Maldah for few days as she had became very week and was unable to move properly. She remained on bed rest and hardly she could carry out daily routine. work.
It is further alleged that despite treatment of the doctor at Maldah (West Bengal) the complication increased with the complainant’s wife and it could not be cured. Thereafter she was taken to Christan Medical College,Vellore (T.N) for better treatment where the complainant’s wife had to undergo another surgery and treatment in which the complainant had to expend huge money.
It is further alleged that due to gross medical negligence and deficiency in service in post operational treatment and care of the complainant’s wife ,she had to undergone unbearable pain and mental and physical torture and the complainant had to expend huge amount. Lastly the complainant approached this forum on 26.02.2014 for giving direction to the opposite parties for payment of compensation of Rs.3,29,790/- on account of physical and mental suffering and financial loss etc. as mentioned in Para- 5 of complaint petition.
3- Having received the complaint petition on 26.02.2014 it was admitted on 11.03.2014 and O.P.No-1 was noticed, who appeared on 26.05.2014and filed her written statement on 26.11.2014. On 15.03.2016 O. P.No-2 was made party, who appeared on 22.11.2016 and filed its written statement on 21.01.2017.
4. O.P.No.1 Dr. M. Grace Kujoor in her written statement besides being taken preliminary objection such as maintainability lack of cause of action, mis-joinder and non-joinder of the necessary parties, has admitted that the wife of the complainant consulted the answering O.P for the 1st time with her early pregnancy on 16.02.2013 as she was expecting 2nd baby. She had consulted with this O.P. during her first pregnancy also and a baby born to her by caesarian section in this hospital. She has further admitted that during 2nd pregnancy the patient had regular anti natal checkup on 16.02.2013, 09.03.2013, 08.04.2013, 03.06.2013, 31.07.2013, 26.08.2013 and 01.10.2013 in the hospital. The said regular checkup were done and medicine were provided on payment of consultation fees of 70/- per visit and medicine and investigation charges were also paid by the complainant as it is a private hospital. She has further admitted that on 02.10.2013 the patient came to the hospital with labour pain and then investigation were done and two units of blood demanded for treatment during surgery. After operation caesarian section a live female baby was delivered and thereafter on 10.10.2013 the patient was discharged as her condition was stable along with home medicines including antibiotics for two weeks and other medicines for one month .The patient came for post operational checkup on 17.10.2013 in outpatient department .She had slight discharge from the wound and as she was already on antibiotics and medicine hence was prescribed some medicine for pain and also advised daily dressing however, she was not coming regularly for dressing rather having dressing done elsewhere. The patient came again for checkup on 09.12.2013 with wound infection when she was prescribed some medicine. On 16.12.2013 the patient again came with bleeding from her vagina when she was prescribed some medicine. Thereafter on 03.01.2014 complainant’s wife came to her O.P.D when this O.P was busy in labour room hence could not met her and as the patient was getting impatient hence, administrator of the hospital told her to go to another doctor if she so wishes and hence the attendant took her to another hospital for treatment.
It is alleged that in the month of January a DHARNA was staged in front of the hospital by the complainant demanding compensation in cash for the entire treatment of this hospital as well as the treatment expenses incurred at other hospital, when this O.P. requested to give three days time to consult their authority. On third day the complainant again came to O.P.D. and demanded compensation when she advised him that as per advise of her authority unless the negligence is proved she will not pay any compensation. Then complainant again threatened to stage DHARNA when the local police was informed. This answering O.P. has claimed that she has not done any negligency in treatment of the patient rather she treated diligently, prudently with due care and caution hence there was no negligency from her side.
This answering O.P. has also given para- wise reply to the averment made in the complaint petition. In reply to the contents made in para-3 of complaint petition it has been asserted that the treatment given by Dr. S. N. Sharma of Maldah (W.B) to the patient was not connected with LSCS done by her hospital rather treatment given by Dr. S.N.Sharma was for skin tuberculosis. Further in reply to the assertions of the para-5,9,10 of the complaint petition where in compensation in total Rs.2,44,990/- (Two lac forty four thousand nine hundred ninety) was demanded has been denied by this O.P. asserting that it is mere allegation without any admissible evidence . It is also claimed that this O.P has not done any negligency, deficiency in services or unfair trade practices and therefore not liable to pay any things to the complainant and therefore prayed to dismiss the complaint with cost of Rs.10,000/-(the thousand)U/S 26 of the Consumer Protection Act,1986 for filing a false and vexatious complaint.
5. O.P.No-2 United India Insurance Company Ltd. in its written statement has also taken preliminary objections such as maintainability and lack cause of action .This answering O.P has asserted that the allegations of negligency and deficiency in service has been made against O.P.No.1 who has denied these allegations in her written statement . It has further been stated that as the O.P.No-1, who is directly involved in the alleged medical negligency has denied the entire facts hence this answering O.P. also denies the liability on its part. This answering O.P. has further asserted that until and unless the wilful negligency is proved against the O.P.No.1 this answering O.P is not liable to indemnify the policy and accordingly prayed to accept the written statement and pass appropriate order.
6. We have heard the argument of the contesting parties and gone through the record along with the material and documents attached therewith.
7. In support of their respective cases parties have adduced oral as well as documentary evidence.
The colmplainant in support of his case has examined three witnesses including himself, out of them C.W.-1 Ajay Kumar Mandal is the complainant himself,C.W.-2 Dipak Kumar is a witness on facts and C.W.-3 Shushma Sargam is the complainant’s wife and the patient of this case. Besides, oral evidence the complainant has filed documents which have been marked exhibits as follows:-
Ext.1/i Photocopy of O.P.D Ticket dated-16.02.2013;
Ext.1/ii Photocopy of O.P.D Ticket dated- 08.04.2013;
Ext.1/iii Photocopy of O.P.D Ticket dated-31.07.2015;
Ext.1/iv Photocopy of O.P.D. Ticket dated-09.12.2013;
Ext.1/v Photocopy of O.P.D Ticket dated-09.12.2013;
Ext.2 - Photocopy of discharge slip of St.Ursula Health Centre, Dumka, dated 10.10.2013;
Ext.3 - Photocopy of childcard dated 03.10.2013 issued by the St Ursula Health Centre, Dumka;
Ext.4/i- Photocopy of investigation report of the patient at 17.10.2013;
Ext.4/ii- Photocopy of investigation report dated 09.12.2013 of the patient;
Ext.4/iii- Photocopy of Investigation report of the patient dated 16.03.2013;
Ext.4/iv- Photocopy of Investigation report of the patient dated 01.10.2013;
Ext.5- Photocopy of Prescription slip of Dr. A. Prabhakar, Dumka dated 03.10.2013;
Ext.6- Photocopy of USG report dated 04.07.2013;
Ext.7series(7(i)to7(84)Photocopies of money receipts towards hospital and dispensary bills issued by St. Ursula Health Centre, Dumka ;
Ext.8- Photocopy of laboratory report dated-16.02.2013;
Ext.9- Photocopy of Ultra Sonogram Report dated 04.07.2013;
Ext.10- Photocopy of prescription slip of Dr. S.N. Sharma of Dishari Health Point, Malda (W.B) dated 06.01.2014;
Ext.11- Photocopy of patient appointment;
Ext.12 Series (12(i) to12(ii) Photocopies of Prescription of Dr. S. N. Sharma and discharge summary;
Ext.13 -Photocopy of discharge summary of C.M.C.Vellore dated 22.11.2014;
Ext.14- Medicine Slip (O.T) of Dishari Health PointPvt.Ltd.
Ext.15- Photocopy of Diet chart of Dishari Health Point Ltd Maldah;
Ext.16(i) to 16(xiv) Photocopies of investigation reports of Dishari Health Point Pvt. Ltd ;
Ext.17- Photocopy of Patient registration form C.M.C. Vellore;
Ext.18(i) to 18(ii) Photocopy of Admission records of the patient of C.M.C. Vellore;
Ext.19- Photocopy copy of Electronic Reservation Slip (Personal User);
Ext.20- Photocopy of OPD General Procedure Slip;
Ext.21(i)to21(ii) Photocopies of Pharmacy Services order for outpatient medications of C.M.C, Vellore;
Ext.22(i) to 22(ii) Photocopies of Injection receipt ;
Ext.23(i) to 23(ii)Photocopies of Pushpak Bus ticket and Railway tickets ;
Ext.24-Photocopy receipt of Sai Kurpa Gest House vellore, dated.12.11.2014;
Ext.25- Photocopy of Railway Ticket ;
Ext.26 – Photocopy of Medicine Slip of Dishari Health Point,Maldah;
Ext.27- Photocopy of India Post Domestic consignment;
Ext.28- Photocopy of Outpatient Services Referral slip of C.M.C, Vellore.
8. On the other hand the Opposite Party No-1 has examined four O.P.W’s out of them O.P.W.No.1 is Dr. M. Grace Kujoor, the O.P.No-1 her self,O.P.W.No-2is Sr. Lissy a staff nurse in St. Ursula Health Centre, Dumka, O.P.W.No-3 Sr. Fulgencia Minj,O.P.W.No-4 Sr. Amla Bilung are also the staff nurse in St. Ursula Health Centre, Dumka. Besides oral evidence O.P.no-1 has filed two professional indemnity (Medical Establishment) Policy certificates as follows:-
- Insurance policy certificate vide no-2212/21090046123200002 072 for the period 30.10.2013 to 29.10.2014.
- Insurance policy certificate vide no- 2011/21090046113200001 891 for the period 30.10.2012 to 29.10.2013.
However, no any oral or documentary evidence has been adduced on behalf of O.P.No-2.
9. Now the points for discussion in this case are as follows:-
- Whether the case is maintainable against O.P.N0-1( Dr. M .Grace Kujoor) beforethis forum?
- Whether this case in bad for misjoinder and nonjoinder of necessary parties ?
- Whether the O.P.No-1(Dr. M. Grace Kujoor) was negligent in conducting caesarian operation and post operational treatment and care of the patient (Smt. Shushma Sargam)?
- Whether the complainant is entitled to the reliefs claims?
F I N D I N G S
10. The admitted facts of this case is that the wife of the complainant Smt. Shushma Surgam consulted Dr. M.Grace Kujoor incharge of St. Ursula health centre (O.P.no-1) for the first time with early pregnancy on 16.02.2013 as she was expecting 2nd baby. During 1st pregnancy also Smt. Shushma Sargam had consulted the same doctor and had anti natal checkup in the hospital and had delivery by caesarean section in the same hospital. It is further admitted fact that during the 2nd pregnancy the patient (Smt Shushama Sargam) had regular anti natel checkup on 16.02.2013, 09.03.2013, 08.04.2013, 03.06.2013, 31.07.2013, 26.08.2013 and 01.10.2013 in the hospital of O.P.No-1. It is also admitted fact that for regular consultation , checkup medicines and investigations the prescribed fees and charges were paid by the complainant as it was a private hospital. On 02.10.2013 the complainant came with his wife to the said hospital with labour pain when she was admitted by O.P.No-1 in her hospital, investigation were done and thereafter operation caesarean section conducted in the same night in which a male baby was born. The complainant’s wife remain in the hospital till 10.10.2013 and as her condition was stable hence discharged in the evening of 10.10.2013. It is further admitted case that the patient Smt. Shushma Sargam had slight discharge from the wound, hence adviced for dressing. It is further admitted case that the patient again came for checkup in OPD of the hospital on 09.12.2013 with wound infection. And on 03.01.2014 the patient again visited the St. Ursula Health Centre but as the O.P.No-1 was busy in labour room hence she could not meet her. It is further admitted fact that as the condition of the patient was not improving hence she went to another hospital for treatment.
11-Now we will take-up the preliminary objection raised by the O.P’s:-
- Whether this case against O.P.No-1 is maintainable before this forum?
Learned counsel for the O.P.No-1 argued that this case is not maintainable against the O.P.No-1 as the Consumer Protection Act,1986 is not applicable to the medical profession and hence this case is liable to be dismissed. On the other hand learned counsel for the complainant contented that in view of Sec-2(1)(o)&(c)(d) and 14 of the Consumer ProtectionAct,1986 this case is maintainable for the medical negligency against of the doctor and hospitals and are liable to pay compensation to the consumer/patients in case of medical negligency.
Sec-2(1)(o) of the Consumer Protection Act,1986 reads as follows:-
“Service” means service of any description which is made available to potential[users and includes but not limited to, the provision of] facilities in connection with bankers, financing, insurance, transport processing, supply of electrical or other energy, board or lodging or both, [ housing constructions] entertainment ,amusement or the purveying of news or other information but does not include this rendering of any service free of charge or under a contract of personal service.
The Hon’ble supreme Court in case of Indian Medical Association Vrs. V.P. Shantha and other held ‘that doctors, hospital and nursing home fall within the scope of the Act as the services rendered by them including the rendering the consultation, diagnosis and treatment both medical and surgical – would come under the deficiency of service under the Act. However, where a doctor or hospital rendered service free of charge to every patient or under a contract of personal service, a patient availing such free services will not be a consumer”.
In the present case the complainant has asserted medical negligency in consultation, treatment, diagnoses of his wife in conducting caesarian operation and post operational treatment and care. It is further admitted fact that for consultation, diagnosis and treatment of the complainants wife O.P.No-1 charged prescribed amount of fee and charges towards investigation etc. Therefore this case is perfectly maintainable against the doctor (O.P.No.1) before this forum and thus plea of learned O.P.No.1 counsel has no merit, hence rejected.
- The another point for discussion is whether this case is barred by the nonjoinder or mis-joinder of the necessary parties?
It was argued that as the O.P.No-1 is covered through its professional indemnity policy effective during the relevant period hence the Insurance Company should have been made party in this case.
It is evident from the record that after admission of the case the petition filed by the complainant, the insurer United India Insurance Company Ltd. Panta, has been made party to this case vide order dated 15.03.2016 and the said insurance company appeared on 22.11.2016 and contested the case by filling written version on 21.01.2017. Therefore the contention of O.P.No-1 has no leg to stand and the case is not barred by law of non-joinder or mis-joinder of the necessary parties.
11. Now we will discuss the merit of this case. The only point for determination is whether O.P.No-1 committed medical negligency in conducting caesarian operation and post- operational treatment and care of the complainant’s wife i.e. Shushma Sargam and the complainant is entitled to the reliefs claimed?
It is an admitted case of the parties that the complainant’s wife Smt. Shushma Sargam after regular anti natal checkup under Dr. M. Grace Kujoor from 16.02.2013 to 01.10.2013 in St. Ursula Health Centre, Dumka as a paid patient delivered a female baby on 02.10.2013 after operation caesarian section. She was discharged on 10.10.2013 however at the time of discharge the stitch site of surgery was not healed up hence she made complain to the doctor, who advised to take medicine as prescribed by her and the wound would automatically get healed up in regular course of time.
The complainant has alleged that after two or three days of the discharge from the health centre the complainant’s wife started feeling pain at the site of stitching and also the surrounding areas, hence, the complainant took her to the St. Ursula Health Centre on 14.10.2013 and consulted Dr. M. Grace Kujoor, who advised for dressing but did not prescribe any medicine . It is further alleged that complainant’s wife periodically consulted the doctor but She did not prescribe any medicine save and except dressing. It is further more alleged that complainant visited the health centre on 09.12.2013 and took OPD ticket and consulted with the said doctor but again no medicine was prescribed nor advised in writing but only advised for dressing. It is further alleged that the complication developed at the site of the wound and pus began to discharge and hence the complainant along with his wife again visited the health centre on 03.01.2014, when also same advise was given by the doctor, though pus was coming from the wound continuously. On that day the doctor (O.P.No-1) advised to consult another doctor or another hospital and hence the complainant took his wife Dr. S.N. Sharma of Maldah (W.B) and set examined her, who prescribed medicines to her, later complainant took his wife to C.M.C Vellore for further treatment where the complainant’s wife had to go another surgery and she is still undergoing treatment.
On the other hand O.P.No.1 asserted that on 10.10.2013 the patient was discharged as her condition was stable with medicines including antibiotic for two weeks and other medicines for one month. The patient came up for post operational checkup on 17.10.2013 in OPD when she had slight discharge from the wound and as the patient was already on antibiotic hence, advised daily dressing . It is also asserted that the patient again came for checkup in OPD on 09.12.2013 with wound infection when medicines were prescribed. It is further asserted that on 16.12.2013 patient came with complain of bleeding from vagina, when medicines were prescribed. It is further more asserted that on 03.01.2014 the complainant along with his wife came to OPD and as she was busy in the labour room hence could not meet her. The patient was getting impatient as the wound was not healed up and asked administrator of the health centre that she would consult another doctor then administrator advised her that if she wanted she may go to another doctor and then attendant took the patient for treatment to another doctor.
12. From the above pleadings and counter pleading it appears that patient Shushma Sargam delivered a female baby child on 02.10.2013 and remain in the hospital as indoor private ward patient till 10.10.2013 .In the night of 10.10.2013 she was discharged however at the time of discharge wound of stitch was not healed up. It is also evident that the patient visited on 14.10.2013 to the health centre where the doctor advised for dressing only. Again the complainants wife visited on 17.10.2013 in OPD when doctor found slight discharge from the wound then she was prescribed medicine for pain as well as asked for dressing. It also appears that the patient visited the doctor periodically but no medicine was prescribed for healing of the wound. The complainant claimed that he along with his wife visited on 09.12.2013 and 03.01.2014 but again no medicine was prescribed rather advised only for dressing. On the other hand O.P.No-1 has claimed that on 09.12.2013 and 16.12.2013 the patient came with wound infection and bleeding per vagina when she was prescribed medicine. It is also admitted by O.P.No-1 that on 03.01.2014 the patient came in OPD when she was impatient as her wound was not healing hence she was advised go to another doctor . On the other hand O.P.No-2 on the point of post operational treatment and care of the patient Smt. Shushma Sargam has adopted the written version of O.P.No-1 and denied any negligency and deficiency on the part of the O.P.No.1.
C.W.1 Ajay Kumar Mandal, complainant himself in his affidivated statement has fully supported his case made out in the complaint petition. In para-19 of his cross examination stated that from 10.10.2013 to 09.12.2013 he took his wife to St. Ursula Health Centre on many times for dressing as at the site of stitch wound has developed and pus was discharging however during his visit no medicine was prescribed except on 17.10.2013. In Para-25 he has stated that the negligency in the treatment of Dr. M. Grace Kujoor appeared when 2nd surgery on his wife held at C. M. C, Vellore. In Para-27 he has denied the suggestion of O.P.No-1 that here was no negligency on the part of Dr. M. Grace Kujoor\, rather due to negligent treatment of Dr. S.N. Sharma of Maldah (west Bengal) which led him to visit C.M.C. vellore. C.W.-2 Dipak Kumar in his affidavited has also supported the complainant’s version. In para-16 of his cross examination stated that it is due to negligency of Dr. M. Grace Kujoor the wound of surgery of his cousin sister could not healed up and hence she had to go for treatment to C.M.C. Vellore. . C.W-3 Shushma Sargam, the complainant’s wife in her affidavited statement said that due to negligent treatment of Dr. M. Grace Kujoor the stitches of operation could not healed up and hence she along with her husband has been visiting to the said doctor, who prescribed some medicine up but she started feeling pain on the stitching area hence, she met with the said doctor on 14.10.2013 but she only advised for dressing. She has further stated that gradually wound started discharging pus from the place of stitching hence on 09.12.2013 she again consulted the doctor who gave some medicine and also advised for dressing however pus discharging continued .She was suffering unbearable pain hence consulted doctor again on 03.01.2014 but the doctor did not take her condition seriously rather asked to consult another doctor, hence 06.01.2014 her husband took her to Maldah (W.B) and consulted Dr. S.N. Sharma, who admitted her in his hospital. The said doctor again operated and discharged on 19.01.2014 but with no relief hence, her husband took her to C. M. C. Vellore where she still is undergoing treatment. In para-19 of her cross examination she stated that from 17.10.2013 to 09.12.2013 she was under treatment of the doctor of St. Ursula health centre and during the said treratment she was only advised for dressing and some pain killer medicine were prescribed . The doctor did not personally see the place of wound rather nurse had dressed the wound. In para-21 stated that it is due to the wrong treatment of the doctor of St. Ursula Health Centre she had to go to Vellore for treatment. In Para 24 of her cross examination she has further stated that due to wrong treatment of Dr. M. Grace Kujoor she is repenting. She has also stated that due wrong treatment of the said doctor other patients were also suffering with the same problem as she had been undergoing.
Now we will deal with the evidence led by the Opposite Party. O.P.W-1 Dr. M. Grace Kujoor, Incharge St. Ursula Health Centre, Dumka in her affidivated statement has supported her own case but in Para-22 of her cross examination clearly admitted that at the time of discharge i.e on 17.10.2013 they gave certificate in which did not mention any wound infection caused due surgery. Further in Para-23 admitted that after two to four days of discharge the patient came to her health centre with a complain of pimple and slight discharge from the wound when it was dressed up and was asked to come for dressing regularly, however she did not prescribe any medicine . In Para-27 she has admitted that after two month the husband of Shushma Sargam came to her centre and met with her but she does not remember that husband of the Shushma had shown entire papers of treatment held at Maldah (W.B). Further in Para-28 she has admitted that during caesarian operation of Shushma Sargam all other caesarien operations done in that week the patient had the similar situation as of Shushma Sargam . However, she denied that due to her negligent treatment the complainant and his wife sustained mental torture and had expanded about Rs.5,00,000/- and for that she and her institution are liable . O.P.W-2 Sister Lissy in Para-33 of her cross examination admitted that for OPD patients a register is maintained as the hospital showing treatment of the patients but no any register for dressing of the patients is maintained. In Para-15 stated that she has no idea that on 16.12.2013 when the patient came with complain of bleeding she was given any medicine or not, O.P.W-3 Sister Fulgencia Minj and O.P.W-4 Sister Amla Bilung in their respective affidavited statement have mentioned the date of visit of the patient on the basis of OPD register.
13. From perusal Ext-2 i.e photocopy of discharge slip of St. Ursula Health Center, Dumka dated 10.10.2013 it is evident that on 02.10.2013 at 9.17 p.m LSCS was done upon Smt. Shushma Sargam and a female baby was delivered. It further appears from Ext.4 series (investigation reports) that on 17.10.2013, 09.12.2013, 16.03.2013 investigations were done when patient’s blood sample taken but there is no mention of prescribing any medicine for the wound caused due to operation. Ext.12(ii) is the discharge summary of Dishari Health Point Pvt. Ltd. Maldah (W.B),showing that patient Shushma Sargam presented with multiple abscess at midpoint of scar (LUCS). She was diagnosed as post operational wound infection and the patient was given wide excision of infected post op wound. Further Ext.13 is the discharge summary of C.M.C, Vellore which shows that the patient Smt. Shushma presented with a persistent discharging sinus at the site of previous LSCS for the past one year As per this discharge summary the patient was diagnosed as- anterior abdominal wall abscess. It also appears that Shushma Sargam was admitted on 17.11.2014 and discharged on 22.11.2014.These documents clearly shows that there was abscess on the abdominal wall of the Smt. Shushma Sargam and persistently discharging pus from the site of previous LSCS for the past one year i.e. since october 2013.
14. On careful perusal of above oral and documentary evidence as well as from the admission of O.P.No.1(Doctor) vide Para 22 to 24 and Para 27 to 28 it is evident that the complainants wife (Smt. Shushma Sargam) was suffering from infection at the site of caesarian operation (LSCS). Further it is proved that after 2 to 4 days of discharge from the health centre of O.P.No.1 the patient began to discharge pus then the complainant along with his wife visited on 14.10.2013, 17.10.2013, 09.12.2013, 16.12.2013 and 03.01.2014 to the said health centre but the doctor neither personally saw the patient’s infection nor prescribed any proper medicine rather only asked for dressing by the nurses of the clinic. Besides the said doctor despite knowledge of uncontrolled discharge of pus from the wound did not refer to any other hospital. The patient was complaining unbearable pain but the doctor did not take proper precaution and due care in treating her. Thus, admission of the doctor is the self explanatory proof of negligence in treatment. The discharge summary of C.M.C, Vellore (Ext.13) also proved that the patient had developed sinus from where she was persistently discharging for the last one year. In such situation we are of the view that there is no requirement of any expert evidence to proof medical negligency.
15. In this connection learned counsel for the complainant has relied upon a case law reported in 1(2018) CPJ 224 (NC)in which the Hon’ble National Commission New Delhi (NCDRC New Delhi) held “ C. P.Act,1986- Sec2(1) (g), 14(1)(d), 21(b)-Medical negligence –abdominal pain and bleeding –post operative complication- mental agony and harassment – deficiency in service ……reasonable degree of care not taken – Patient admittedly had to undergo series of procedures including dialysis, a repair surgery and also another surgery to repair Vesico Vaginal Fistula (VVF) on account of which she had become bed ridden apart from suffering from urinary leakage- Negligence proved- compensation awarded”.The facts of the present case is covered by the case law cited by the complainants counsel.
16. Therefore in view of above clincling and uncontroverted evidence and the Principles settled by the Hon’ble courts we come to conclusion the Dr. M. Grace Kujoor, Incharge St. Ursula Health Centre, Dumka was negligent in post operational treatment and care of Smt. Shushma Sargam as a result she had to undergo unbearable pain, mental tension and harassment for the year i.e. from 10.10.2013 to 22.11.2014.The patient had to undergo surgery two times in two different hospitals after the caesarien operation held in the health centre of O.P.No.1. The complainant had to incur heavy financial expenditure in the treatment of his wife due to negligent post operational treatment care of O.P.No.1.
17. Now we will discuss the compensation as claimed by the complainant. The complainant has claimed Rs.1,34,990/-towards total medical expenses including operation fees ,medicines charges, pathological charges and other expenditure at St. Ursula Health Centre,Dumka and Dishari Health Point Ltd. Maldah(West Bengal). Further claimed Rs.84,800/-towards treatment at C.M.C. Vellore(T,N). We find that medical negligency proved against the O.P.No.1is due to her negligent post operational treatment of the patient. We also find that in conducting caesarian section of the patient there was no negligency against the doctor(O.P.No.1). Therefore compensation is only granted for the medical negligency committed by the doctor in post operational treatment. As per the chart mentioned at page at-7 of the complaint petition expenses incurred at Dishari Health Point Pvt, Ltd , Maldah (W.B) and at C.M.C. Vellore can only be counted for compensation which in total comes to Rs.1,80,800/-(One lac eighty thousand eight hundred). Besides complainant is also entitled for compensation towards pain and suffering sustained by his wife (Shushma Sargam) as well as mental tension and agony sustained by he himself of worth Rs.50,000/-(Fifty thousand) and also entitled for the litigation cost of Rs.5,000/-(Five thousand).
The O.P.No-2 United India Insurance Company Ltd. in its written version has admitted that professional indemnity (medical establishment) policy have been issued for the period 30.10.2012 to 29.10.2013 as well as from 30.10.2013 to 29.10.2014 in favour of the St Ursula Health Centre, Dumka. The O.P.No-2 in Para-6 of written statement stated that under the said policy this insurance company would satisfy the order if medical negligency is proved against O.P.No-1. Therefore, O.P.No-2 is liable to satisfy the compensation against O.P.No.1 as medical negligency has been clearly proved against her. However they are jointly and severally liable to pay compensation of Rs.2,35,800/-( Two lac thirty five thousand eight hundred ninety) along with interest @ 9% p.a. As it is proved that O.P.No.2 i.e. United India Insurance Company Ltd. has covered both treating doctor and the St. Ursula Health Centre, Dumka for the relevant for period therefore O.P.No-2 is liable to pay the entire amount of compensation.
18.Considering all the above facts and circumstances as well as the case law’s as discussed above we are of the view that O.P.No-1 was negligent in treating Smt. Shushma Sargam and committed gross medical negligence and deficiency in service therefore both the Opposite Parties are jointly and severally liable to pay compensation.
In the result,
O R D E R E D
That the case be and the same is allowed on contest with cost against O.P’s They are jointly and severally liable to payRs. 1,80,800/-(One lac eighty thousand eight hundred) towards the treatment expenditure incurred in post operational treatment of the patient further directed to pay Rs.50,000/- (Fifty thousand) towards compensation and Rs.5,000/- (Five thousand) towards cost of litigation to the complainant. Further O.P’s are directed to pay interest @ 9% p.a. on the total awarded amount i.e. Rs.2,35,800/-(Two lac thirty five thousand eight hundred)from the date of filing of this case i.e.26.02.2014 till its final payment.
We further direct O.P’s i.e. Dr. M. Grace Kujoor, Incharge Health Centre ,Dumka and O.P.No-2 United India Insurance Company Ltd, Patna to comply the order within 30 days from the date of receipt of this order failing which necessary action as contemplated U/S 25 and 27 Consumer Protection Act,1986 will be initiated.
The office clerk is directed to supply copy of the order to the parties or their lawyer free of cost.
This case, is thus disposed accordingly.
