The instant consumer complaint has filed by one MD. Tahasan Ali against Dr. M. Arif and Abu Taker as OP No. 1 and 2.
The complainant case in nut shell is that Mother of Complainant Mrs. Saira Bibi fell prey of the Opposite Parties when she first visited their Chamber/ Clinic on 23.01.09 with stomach pain.
That the Opposite Party No. 1 diagnosed from symptoms that there were stones in the victim's gall - bladder and left no stone unturned to verbally establish his expertise in subtlest surgery to ferret out stones so his stratagem might never fail him to an aged and unlettered woman with failing health.
That the O.P. No. 1 already inflated as being Professor and Head of Surgery at the Katihar Medical College and Hospital began to run off at the mouth on what the victim was suffering from showered umpteen advices and instructions upon her and prepared a voluminous prescription indicating an essentiality of surgery in the short run, or she should batten down the hatches in the event of delay.
That the O.P. No. 2 the medical aid of the O.P. No. 1, in their local dialect tried his damnedest to convince her of minatory and fatal consequences and thus exerted intense effort to pursuade her for surgery, which could best be done in the hands of the OP No 1 at Kathihar.
That the airs of the OP No.1 were immediately felt optimal by the victim and all her relation and close acquaintances pari passue with the importunate admonition of the O.P. No 2 about extreme urgency of Surgery, although the family of the victim was going then impecunious nonetheless convalescence of the victim was an imperative without more ado for the entire company and relations all devoid of alacrity.
That however, on 23.07.2009 the victim was operated at Katihar Medical College and Hospital by the Opposite Party No. 1 without written consent of his patient, the victim in the stomach in search of stones and that all the efforts in that connection failed both, the O. P and the victim and her well-wishers as even an iota of stone could be ferreted out of the victim's stomach although diagnosis by the O.P No.1, Professor and Head Department of Surgery of the Katihar Medical College & Hospital [One should not sponge out of one's memory) was claimed to have been accurate, unfailing and unerring.
That when it came to light that the O.P. No 1 had ceased to mind his p's and q's at the time of diagnosis as well as operation by himself that resulted in an abject fiasco in the filed of his specialization, he began to retort to the queries from the victim's side and that he became so exasperated and also perturbed that he even failed to provide surgery report.
That now both the O.P.s, began to their shameless audacity to file a chord of the rural ignorami increasingly choking up at the sight growing feebleness of the victim in one fell swoop and successfully lulled her at last.
That the complainant submits that the O.P. No.1 once again to cure the ailment of the victim through another surgery which he did again at Katihar Medical College & Hospital on 28.10.2013 again without any written consent from the patient and/or her family members which again met the same fate resulting to worsening the mental and physical health of the victim as there could be found any trace of stone while the aggravation of the trouble loomed large and that the OP.s. put a lid on the lick and a promise they made and did not take the lid off.
That the O.P.s. firing on all cylinders managed to win the victim's heart by assuring her of success of Surgery they just performed and persuaded her to stick to medical care they rendered for another 6 months, meaning that throughout this period of their target, the O.P party rampantly used to line their pocket, like milking a milch relentlessly although an iota of improvement of the victim's health could not be marked at all.
That completely exhausted and ready to drop the victim's family on 22.12.2016 switched over to Raza Hospital, Line Bazar, Purnea and placed the victim under the treatment of Dr. Md. Shahnawaz Rizwi which was also marked by aggravation of the victim's health condition.
That in view of the worsening state of health of the victim, Dr Suvradal Chatterjee, a Homeopath of note, was engaged for a thorough diagnosis and intensive medical care of the victim.
That under his prudent counsel, a good many tests and scanning were done and their reports perfectly established medical negligence so occurred at the hands of the O.P.s during a long-term treatment, not to mention they treated the victim like a golden goose or a gravy train in a space of five years, and as such the village folk naturally credulous utterly failed to wise up the real intention of the O.P.s. to earn money to their heart's content at the expense of human beings.
That now it is crystal clear that the O.Ps. have joined hands to amass money though a lawful process, although every sensible person who ever aware of the above noted facts and circumstances do attribute to the O.P.s. the decay of the victim's health and energy as well as heavy expenses of money so drained by abnormally long-term treatment of the Victim.
That the victim is now by any means on her last legs, to the coy her physical condition walks her to the beyond, god forbid "Coplicacies and infection have gone in such a way through surgery that she has caught ulcer caused by many metal clips left in her stomach by the surgeon, O.P. No 1 as clearly visible in nacked eye, and as a matter of fact the victim has, many opined, gone beyond redemption which is even unexampled.
The complainant further states that the O.P. No.1 has taken up the treatment of the victim without attention and care of that importance so essentially required, rather resolutely has paid greatest attention to huge money from the uneducated ruralite by resting upon her Achilles heel, and administered medicine, as if using acetaminophen. Besides, it will not be an exaggeration of facts that the O.P.s. have, to all intents and purposes, bagged a game out of which they consumed both horse doeuvre and dessert.
That as a consequence the whole family of the victim has been done for as looming on the border land of financial distress and tremendous awe-inspiring marginalization.
Wrong diagnosis of the victim that those have grown stones in stomach has led to surgical operation on the victim twice that has abjectly failed upto the extent of almost fatality.
So, the complainant prays Compensation, cost of medical treatment incurred, etc to the time or Rs. 92,10,500/-.
The complaint was registered before the Kolkata bench of S.C.D.R.C. W.B. which was admitted on 07.02. 2018. Notice was sent through post to the address of both the OP which was returned with noting “Misserved” and “Not Known”.
So, the complainant was asked for filing affidavit of service.
On 15.11. 2018, the ease was reassigned by the order of Kolkata bench to this Commission to dispose the consumer complaint here is this bench. re-numbering the case as RBR/CC/23 of 2018.
This bench asked the complainant to cause service details. A fresh notice was issued. OP No. 1 Dr. Arif received notice on 11.01.2019.
OP No 1 recorded the presence through Ld. Advocate. SR remained pending in respect of OP No.2.
The notice of OP No. 2 returned unserved as addressee left. So, by order of this bench, the notice of OP NO 2 Published in News Paper.
OP No. 2 did not contest the case and settled vide order dated 15.03.2019 that the case would be heard exparte against op No 2.
OP No. 1 contested the case by WV, and contended that the fact with respect to OP no.1 is that the alleged cause of action has happened at Katihar (Bihar). Therefore, as per SECTION 11(2) of CONSUMER PROTECTION ACT the appropriate jurisdiction shall be territorial jurisdiction of Katihar where respondent is practicing. Hence a separate application is moved herewith to relegate this case from West Bengal State Commission to the appropriate jurisdiction of Katihar (Bihar).
That, as per the complaint copy, the date of cause of action is of away back somewhere in the year of 2009. That the cause of action has taken place last with respect to the OP no.1 on somewhere in 2009. And this complaint is filed in 2018 which is more than nine years after from the date of filing this complaint no. 23/2018. Hence the present complaint is time barred under section 24 A of Consumer Protection Act, 1986. OP no.1 says that this complaint is hopelessly time barred with respect to opposite parties. Opposite parties says that this complaint should be dismissed u/s 24A of the Consumer Protection Act 1986 since it is time barred. Hence, a separate application is moved herewith to dismiss this case under section 24(a) of the CPA.
That the present Complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law and has been filed without any justified reason/cause against the OPPOSITE PARTY NO.1 just to harass, defame and extort illegal sum of money from the OPPOSITE PARTY NO.1, hence the Complaint is liable to be dismissed.
That no specific, scientific and justified allegations in regard to utter negligence or deficiency in providing services has been made by the COMPLAINANT against the OPPOSITE PARTY NO.1 and the COMPLAINANT has totally failed to explain "as to how he is involved and the OPPOSITE PARTY NO.1 were negligent. Hence the Complaint is miserably failed to explain the cause of action against the OPPOSITE PARTY NO.1. Hence is liable to be dismissed outright.
That the COMPLAINANT has filed this Complaint with false allegations of negligence to the Hon'ble Commission by claiming exorbitant amounts without any basis, just to waste the valuable time to harass and to defame the OPPOSITE PARTY NO.1. Although it is a fact that the OPPOSITE PARTY NO.1 has not committed any negligence in this case while providing the said treatment, hence Complaint is liable to be dismissed.
That as such no cause of action arose against the OPPOSITE PARTY NO.1 in this case, no negligence or deficiency in services has been made/provided by the OPPOSITE PARTY NO.1 to the patient while providing the said services in question, and hence this Complaint is not maintainable in present form and is liable to be dismissed outright.
That the present Complaint is totally false, fabricated, wrong and baseless which is synthesized on the basis of unscientific laymen conjectures, assumptions and presumptions and that in this case no negligence (either in the form of commission or omission) has been committed by the OPPOSITE PARTY No.1 and hence the Complaint is liable to be dismissed.
That this complaint is bad for non-impleading or mis impleading of parties. The OPPOSITE PARTY NO.1 is insured with "United India Insurance Company Ltd.", through its Professional Indemnity Policy No. 210900/46/08/35/00001424 effective from 21/12/2008 to 20/12/2009 (Copy of insurance policy is being annexed as "Annexure R-1").
That the OPPOSITE PARTY NO.1 is a well-qualified and a reputed doctor, with substantial good will and experience of long standing successful medical practice and this Complaint is full of concocted facts, defamatory language, derogatory words, spirit and tenure. Enclosed as per "Annexure - R-2".
In this case, the complainant Tahasan Ali and his other witness Dr. S. Chatterjee were examined.
They were cross examined by interrogation on the Part of OP No 1.
The OP No 1 tendered evidence byes wearing abbidavit and also replied to the interrogatories of the compliment.
Beside the document and evidence, the complainant as additional evidence furnished medical statements and it was challenged by the OP by filing water defections and reply.
The Ld. Advocates of both sides also by participated in the course of hearing Argument as well as WMA.
Points
(1) Has the complainant authority to raise thus consumer dispute on behalf of victim Saira Bibi?
(2) Has the complainant cause of action?
(3) Is there any lack of territorial Jurisdiction?
(4) Had there any negligence on the part of opposite parties parking at the time of rendering Medical treatment of victim Saira Bibi?
(5) Is the complainant entitled to get the compensation and consequential relieves under the provision or CP Act, 1986.
Decision with reasons
Points No 1 to 3: -
All three points are taken up to togetherly for discussions. Admitted by the Patient Saira Bibi was brought to the chamber of OP No. 1 with complain of acute abdominal Stomach pain on 23.01.2009 where the OP No. 1 had examined her as specialized doctor.
The OP No.1 Says that he is attached with Katihar (Bihar) Medical college and hospital and he attends the chamber only at Kathihar. So, the OP No.1 is not liable to face the consumer dispute within the jurisdiction of this bench having territorial Jurisdiction of Nine districts of North Bengal.
This argument has no force, as OP No.2 has a Pvt. clinic at Samsi, Malda where he attended the patient Saira Bibi for her treatment. So, territory jurisdiction point raised by Op No. 1 is found no force.
It is pointed out that Dr. Arif is insured with insurance company through professional indemnity Policy and not impleading the insurance company as insurer causes the case fatal. This argument also cuts no ice as the claimant does not have claimed against insurance Company.
It is further pointed out by the OP that all the treatments were held in 2009. Then why such dispute has raised in 2018.
The Complainant categorically mentioned in the pleading that due to negligent act of Op No. 1 and OP No. 2, the patient Saira was continuing her treatment till 2017 from here and there. The medical documents (Ex- I Series) produced by the complainant side proved that Dr. Arif Prolonged the treatment of Saira Bibi till 2014. The ailment of patient Saira could not be healed. She has been suffering continuously and the instant dispute was registered within the time framed in the Sec 2A of the CP Act, 1986.
So, all these three issues are hereby answered in favour of the are complainant.
Issue No. 3 to 5:-
These two issues are taken up together for adjudication for the sake of convenience. It is highlighted from the end of the complainant that the opposite parties have had a visit to the victim, Mrs. Saira Bibi with stomach pain on 23.07.2009 for the first time in their clinic situated in the neighborhood of her house of the obscure village of Samsi in the district of Malda under the instructions and influence of the O.P. no.2, a quack & neighbor of her.
That as being assured of the presence of stones in the victim's gall bladder from medical tests so advised by himself, the OP No.2 made two surgeries in gall bladder first in 2009 and then in 2013 both in the Katihar Medical College & Hospital leaving metal clips inside which neither the patient nor her relatives were made known by the O.P No.1, which could only be revealed on 24.05.2017 from a test report under a homeopath, Dr. Subhradal Chatterji.
That without for Dr. Subhradal Chatterji's medication to the mother of the complainant Saira Bibi in 2017 such negligence would have proved fatal.
That the Respondent No. 1 has operated twice in vain on the neglected victim Saira Bibi suspecting presence of stones in her gall bladder.
That such operations have proved abject failure on the part of the Respondent No. 1 and as such they have resulted in varied relative complications, such as jaundice, chlorosis, respiratory distress, ongoing pain in the abdomen, loss of appetite, insomnia all causing decay of health and mental cool.
That medication of Respondent No.1's failure and negligence has been obvious from the fact and is marked by the presence of metal clips in the abdomen of the negligence victim after surgeries done by the Respondent No.1 in 2009 and 2013.
That when the Respondent no.1 found himself to be not equal to the medical skill needed in such a case incessantly heading from bad to worse, he now wanted to wash his hands off the case and as such instructed the victim for her further treatment in Raza Hospital in Purnea, Bihar that too has failed to bring any remission to the victim till 2016.
That the metal clips in the abdomen were able enough to create decomposition of and infection in the abdomen and send the victim to death's door. At that moment a homeopath, namely Dr. Subhradal Chatterji dawned on the victim as a real boon in 2017.
That the instant case of gross medical negligence in the hands of this unskilled medical practitioner is not a solitary one in the parts around Shamsi (Malda), but quite a few cases of his medical negligence have ended in death as well, and it is widely wised up that loss of human lives does not have preponderance over his amassing money from the poor ruralites, be it by a fair means or foul."
Ld. Advocate of OP No. 1 countered the allegations of complainant, that Saira Bibi, the victim is alive, then why her son has registered the complainant.
It reveals that Saira Bibi, an illiterate lady, by executing a power of attorney authorized one of her son MD Tabasan Ali to register this consumer complaint and nowhere in provision CPC Act, 1986 can prevent a consumer to register a dispute through her close relative or agent.
Ld. Advocate of the OP No. 1, Mr. Rabbani continued his argument that OP No.1 is a well-qualified and reputed doctor, with substantial good will and experience of long standing successful medical practice for 31 years.
It is not disputed that, patient Saira Bibi, was operated for laparoscopic cholecystectomy on 10-08-2009.
It is not disputed that, CBD exploration, choledocholithotomy choledocholithotomy on 04-11-2013.
It is not disputed that, everything was done diligently and prudently with due care and caution and there is no negligence, unfair trade practice or deficiency of service on the part of OP no.1.
It is not disputed that, no guarantee/ warrantee or any assurance was ever given to the patient party. 100% result cannot be guaranteed.
It is not disputed that; no doctor anywhere has pointed out any negligence on the part of OP no.1.
It is not disputed that, in Rajesh Taneja vs Kaiser Hospital & 3 Ors. on 17 May, 2016, the honorable court held that "Doctors cannot be dragged to courts and asked to pay compensation merely because a patient was not cured 100 per cent after treatment or a surgery". Further Expert opinion has always played a vital role in medical negligence cases and complainant failed to prove any expert opinion.
It is not disputed that, "standard of care is defined as what a reasonably prudent medical provider would or would not have done under the similar circumstances. Medical negligence occurs when the medical professional does not adhere to the recognized standard of care in the treatment of the patient.
It is not disputed that, OP has performed his duty with reasonable standard degree of care, hence cannot be held liable for any negligence at least from his part.
That, "res ipsa loquitor" cannot be applied in this case since the opposite party has explained factual medical issues as well as its legal implications in detail in a very reasoned manner. Hence, the Commission should not apply the principle of "res ipsa loquiter" because OP has explained in detail each and every baseless allegation hurled by complainant.
That, the Hon'ble Supreme Court of India in Kusum Sharma and Another Vs Batra Hospital and Medical Research Centre and Others (2010) 3 SCC 480 has laid down certain principles which should be kept in view while dealing with cases of Medical Negligence. Applying the principles laid down it is submitted that no case of medical negligence is made out against the answering Opposite Parties and the present complaint is liable to dismissed.
After hearing both sides the fact established to the score that the victim Saira Bibi, middle aged lady, with stomach pain visited the Medical Clinic of OP No. 2 at Samsi where at the instance of OP No. 2, the OP No. 1, a surgeon, used the sit in the chamber to attend the patients, examined and checked Saira Bibi on 23/01/2019 for the first time. He advised some clinic tests of the patients and after obtaining test reports he diagnosed stones in the gall bladder of Saira Bibi and advised surgery after prolong treatment continuing the said surgical operation, he performed on 23/07/2009 but no stone could be extracted from the gall bladder? The pain and suffering were continuing inspite of continuous treatment of Dr. Arif. The condition of patient was gradually deteriorated and for second time again he held second surgical operation of the patient on 28/10/2013 at Katihar Medical College and Hospital where Dr. Arif was attached.
Inspite of second surgery, there was no improvement of the patient though Dr. Arif continued the treatment. Thereafter, handed over the treatment of Saira Bibi in the hands of physician Doctor Md. S. Rizwi. But the condition was deteriorated.
The patient then run here and there to heal the health suffering she was actually facing. She rushed to Kolkata and other places, attended Super facility medical centers, but due to faulty medical treatment initiated and continued by Dr. Arif since early 2009 to the last part of 2016, the damaged was already done.
Ultimately, she came to the care of Dr. S. Chatterjee, a renowned homeopath, who after some clinical tests could observe infection have gone in such a way through surgery that she has caught ulcer caused by metal chips left in her stomach during the surgical operation conducted by OP No. 1.
The statement and prescription issued by Dr. S. Chatterjee, clearly indicated that due to hazardous or reckless negligence in the twin operation made by Dr. Arif, surgical Metal chips remained attached inside the gall bladder of the patient Saira Bibi which required further surgery under the advice of Dr. Chatterjee through surgeon to remove the said metal chip to save her life.
Now the question is whether the statement of Dr. Chatterjee homeopath is enough to hold about negligence of a competent surgeon.
It is argued on the part of the Ld. Advocate of Op No. 1 that without any medical expert opinion the bench can not hold that all the problems faced by the patient were only for the negligent act of OP No. 1 Ld. Advocate of the OP referred judicial decisions as follows:
- Judgment of Supreme Court dated 01/10/2018 in Civil appeal No. 3971 of 2011
- Judgment of NCDRC dated 17/05/2016 in Rajesh Teneju vs Kaiser Hospital.
- Judgment of NCDRC dated 20/11/2002 in H.S. Saini vs Gourbox Singha.
All the Judicial decision referred about clearly spokes that to prove the case of negligence of a Doctor, Medical evidence of expert in highly required.
But in the case of negligence perse no expert opinion is required.
Here in this case, after two consecutive operations in the gap of four years no gall bladder stone could be extracted. Rather, the condition was gradually aggravated due to attached metal chips remained there.
Here the Medical hazardous and reckless negligence has become very much visible in the day light and the term “Res ipsa “loquitur is very much applicable.
So, all these issues are hereby answered in favour of the complainant and the OP No. 1 is basically liable for his negligent act and deficiency of service.
OP No. 2 who used the own the medical clinic had nothing to do. Only he suggested the patient party for the treatment of the patient Saira Bibi by Dr. Arif who used to sit in his chamber to attend the local patients.
The victim who endured a continuous physical sufferance, her family had to spent huge money for her treatment.
Saira Bibi is now 65/66 years old lady. She entrusted this case to his son Md. Tahasan Ali by power of attorney. During the last phase of hearing Tahasan Ali passed away.
One Rafikul Islam and others as nearest one of Saira Bibi was entrusted by Saira Bibi with fresh power of attorney to continue the case.
However, to protect and safe guard of the interest of Victim Saira Bibi, the order of award to be passed in her name and her favour.
Hence it is ordered,
That the instant complaint case filed by since deceased Md. Tahasan Ali on behalf of Saira Bibi against OP No. 1 Dr. M. Arif is allowed on contest with cost and dismissed exparte against OP No. 2 Abu Taher.
The OP No.1 Dr. M. Arif is asked to pay Rs. Eight Lacs (Rs. 8,00,000/-) to the victim Saira Bibi, W/O Abdul Malek of Samsi, Malda for compensation, medical cost, Mental and physical sufferings etc and Rs. 20,000/- as litigation cost within two (2) Months from this day filing which 8% interest P.A shall carry on over the awarded money till the payment is realized.
Let a copy of the order be supplied to the complainant and OP No. 1 free of cost.
