Hon'ble Mr. Sudip Niyogi, President.
Briefly stated, the case of the Complainant is that she had some problem with her right kidney and she consulted the Doctor i.e. OP No.1, who prescribed a few medicines and also for some tests. He also advised her for a minor operation. Accordingly, she got USG of whole abdomen and x-ray of Kub Region done by Dr. P. Sanyal and other tests. Following the advice of OP No.1, she was admitted to Rithari Health Care Pvt. Ltd., Cooch Behar on 15.01.18. She also had made an advance of Rs.10,000/- to the OP No.3, who is the Manager of Rithari Health Care Pvt. Ltd. After her operation by OP No.1 and 2, she was discharged from the said Nursing Home on payment of the rest amount of Rs.25,000/- on 21.01.18. She was also advised to lead normal life as earlier.
On being discharged from the said Nursing Home, her condition got deteriorated and she felt urine problem and accordingly, the members of her family took her to Sanjivani Hospital, Birpara and there also USG of whole abdomen was done on 07.02.18 by Dr. Subhrajit Bhadra, Sonologist. It was found that her right kidney was removed. At this, the members of her family became astonished and they approached the Doctor, who had actually operated but they were trying to shift the liability upon each other. Due to wrong treatment and medical negligence and hostile attitude, the Complainant incurred heavy loss and injuries. It is also alleged that the said Nursing Home did not supply the bill to them. The Complainant met the Ops several times and requested for compensation but they did not pay any heed to her request. Ultimately, a legal notice was served upon the Ops. Now, by filing this case, the Complainant prayed for Rs.15,62,000/- as compensation, Rs. 1 lakh for mental pain, agony and harassment and Rs.5,000/- as litigation cost.
All the three Ops filed separate written version in accordance with their respective contentions and all of them denied the allegations made against them by the Complainant.
The OP No.1 admitted that the Complainant came to him on 15.12.17 with a complaint of her right Kidney. He clinically examined her and advised for USG of whole abdomen and X-ray (KUB). The USG report revealed that the Complainant had Grade-II HDN (Rt. Kidney), Profuse Debris in dilated Pelvicalyceal System in right side. Large Multifaceted Calculus (largest 20.2 mm) and his (OP No.1) provisional diagnosis was Pyonephrosis. The OP No.1 accordingly advised the Complainant for admission in Nursing Home with a plan to open Pyelolithotomy/Nephrectomy, if required. It was further contended by OP No.1 that all the pre-operative tests such as Blood TC, DC, Hg%, ESR, Platelet count, Urea, Creatinine, BT, CT, HIV, ECG, Digital Ex-ray etc. were conducted and after going through the reports of these tests, OP No.1 infused two bottles of blood to the Complainant and performed Nephrectomy operation of Right Kidney on 16.01.18 upon the Complainant. It was further contended that prior to operation, everything was explained and necessary permission was also obtained for Nephrectomy operation i.e. removal of said Kidney. Accordingly, Nephrectomy operation was conducted and during post operative period also, sufficient care was taken. Before discharge of the patient, she was advised to take some medicines and to review after 7 days. She was also advised to consult Dr. Tarun Paul (OP No.2) for check-up on 20.01.18 but the patient did not turn up for check-up. On the basis of the reports, the patient was discharged and at that time, all the test reports such as Blood TC, DC, Hg%, ESR, Platelet count, Urea, Creatinine, BT, CT, HIV, ECG, Digital Ex-ray etc. were handed over to her.
In his written version, OP No.2, denying all the allegations made by the Complainant against him, claimed that he was in no way connected with the treatment, nor took any part in the operation upon her as the patient was exclusively treated by OP No.1. According to him, on 20.01.18, OP No.1 referred the patient to him just to consult post-operative clinical status before discharge and upon clinical examination, he recorded his findings as he found at that time.
The OP No.3, denying all the allegations made by the Complainant against him, admitted that the Complainant had been admitted to his Nursing Home under OP No.1 and she was exclusively treated by him. According to him, there was no medical negligence and deficiency in service on their part. They also denied having received Rs.25,000/- from the Complainant at the time of discharge.
So, all the Ops prayed for dismissal of the Complaint.
POINTS FOR CONSIDERATION
- Is the instant case is maintainable?
- Is there any deficiency in service or unfair trade practice on the part of the Ops?
3.Is the Complainant is entitled to get any relief?
- To what other relief, if any, Complainant is entitled?
DECISION WITH REASONS
Point No.1.
The instant case is found to have been made by the Complainant on the allegation of deficiency in service and/ or unfair trade practice on the part of the Ops in connection with the treatment of the Complainant who had been suffering from kidney problem. Considering the contentions and allegations of the Complainant and other related factors, the instant case is found to be maintainable.
Point No.2.
We have gone through the pleadings, evidence and written argument filed by the parties and also gone through the documents filed by them as Annexures.
On behalf of the Complainant, the following documents are filed namely USG Report of the patient done by Cooch Behar Scan Centre, Reports of Serology and Bio-Chemistry, Discharge Certificate issued by Ritari Health Care Pvt. Ltd., another USG report conducted at Sanjivani Diaggnostic Unit, Birpara, a copy of Legal Notice issued to the Ops on behalf of the Complainant and Replies of the said Legal Notice. This apart, 2 Certificates issued by Jaigaon-I Gram Panchayat and Chakowakheti Gram Panchayat were also filed.
On behalf of the Ops, the documents filed are - Admission Sheet of the Complainant, Prescription relating to the treatment and medicine charges.
In this case, what we find, admittedly, the Complainant had some problem in her right kidney and she went to OP No.1, who clinically examined her and advised for USG of whole abdomen and X-ray (KUB) and the USG report reveals that the Complainant had Grade-II Hydronephrosis (right kidney) and provisional diagnosis was Pyonephrosis and she was advised for admission in the Nursing Home for operation. Accordingly, the Complainant was admitted to OP No.2 Nursing Home on 15.12.17 where on the next day, operation was done by OP No.1. Finally, the Complainant was discharged from the said Nursing Home on 21.01.18.
In the USG report submitted on behalf of the Complainant, it is noted therein that “Right Kidney – It shows normal dimension position and axis. Grade-II hydronephrosis is seen, Renal cortex is mildly thinned. Large multifaceted calculus (larges 20.2 mm) is seen involving middle & lower calyces. Echogenic debri are seen in dilated pelvi-calyceal system.” “Impression: Right sided renal calculi with grade II hydronephrosis in right kidney, profuse debri in dilated pelvi – calyceal system in right side, Left sided renal calculus and Suggestion of polycystic ovarian syndrome- Advice: Clinical correlations.”
The medical papers produced on behalf of the Ops reveal that the patient was admitted to the said Nursing Home with a plan for opening Pyelolithotomy/Nephrectomy, if required. Ultimately, Nephrectomy was done and before being discharged, the said patient was referred to Dr. T. Paul i.e. OP No.2 regarding her post-operative clinical status. Accordingly, OP No.2 gave her opinion as to her status and ultimately discharged with advice for follow-up action in due time. The said papers also reveal about both pre-operative and post-operative tests, which were conducted in connection with the treatment of the Complainant. These medical papers were not denied on behalf of the Complainant. In fact, here in this case, no dispute was raised as to the treatment of the Complainant but the Complainant raised question as to removal of the right kidney of the Complainant and that too, without their consent.
During argument, Ld. Counsel appearing for the Complainant submitted that the Complainant had come to OP No.1 for her treatment of her affected kidney, but in the name of treatment, the entire right kidney was removed without their consent. Ld. Counsel further argued that if they had previous knowledge that her right kidney was required to be removed in order to save her life, in that case, they should have been given an opportunity to consult other Doctor or approach higher Medical Institution before taking final decision, but as they were not informed beforehand that her right kidney was to be removed, they did not get any such opportunity to consult other Specialist or Higher Medical Institution.
Ld. Counsel for the OP No.1 and 3 drawing our attention to the medical papers of the Complainant submitted that the nature of operation, which was going to take place, was duly informed to the patient party and consent was also taken. The medical papers also reveal about the detailed plan of the operation and finally before operation, the consent from the patient party was also duly obtained.
The medical papers produced on behalf of the Ops reveal that “Pyonephrosis is a disease causing suppurative destruction of the renal parenchyma. If it is not diagnosed early, it can worsen rapidly and cause the death of the patient with the development of septic shock. However, nephrectomy can be considered as a good treatment option if the contralateral kidney is intact in case of a damaged kidney that has lost most of its functions.”
It is true that in the copies of the medical papers/prescriptions produced on behalf of the Ops, the plan of operation was detailed as these papers were not specifically disputed on behalf of the Complainant. It is assumed that the patient party knew about the nature of treatment, which was going to take place. Of course, many a time, it happens, the patient party, being illiterate and rustic, cannot follow the writings in the prescription and in that case, they need to be informed about the detailed plan of operation considering the condition of the patient, which the Doctor is going to undertake. Here, in this case, whether the decision as to removal of the right kidney of the Complainant was verbally communicated to the patient party, is a matter exclusively known between the Doctor and the Complainant’s party, but although the parties are found to contradict each other, in such circumstances, the dispute could have been easily put at rest, if there was a valid consent in writing from the patient party.
It is true that a copy of consent in writing was produced on behalf of the Ops. This document is found to be a copy of the Admission Form and on the reverse page, one consent was written, which is found to have been given by one Narayan Oraon on 16.01.18. The Complainant challenged the said story of consent as the said Narayan Oraon is claimed to be not known to them and he was also in any way related to them. Complainant also produced certificate from the Panchayat as to the legal heirs of the respective fathers of the Complainant and her husband. Though Ld. Counsel for the Ops raised question as to the evidenciary value of these two certificates, they could not produce any paper relating to the person giving consent and Complainant party.
The Indian Medical Council Act, 1956 provides in Chapter-7-7.16 that before performing an operation, the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor or the patient himself as the case may be. In an operation, which may result in sterility, the consent of both husband and wife is needed. Here, it is found that the Complainant was admitted to OP No.3 Nursing Home by her husband Binod Oraon on 15.01.18 and he signed the Admission Form. But, his consent was not obtained when it was actually needed before such a crucial operation, instead, the consent of one Narayan Oraon, who claims to be the brother of the Complainant, was taken. Nowhere in the said certificates issued by concerned Panchayat, the name of Narayan Oraon is found to be a relative of the Complainant. Now, the question is why the husband of the Complainant was left out for obtaining his consent. No explanation is forthcoming from the Ops. Despite specific provision as to the person, who can consent, OP No.1 and 3 went ahead, without complying with the said provision of Indian Medical Council Act, 1956. So, the consent as produced by the Ops cannot be a valid consent.
Though there is no dispute as to the problem of right kidney of the Complainant and also no allegation is there as to any wrong treatment barring only the removal of the right kidney without consent, Ops are found to be negligent only in the matter of taking consent before a crucial operation was conducted and thereby giving an opportunity to the Complainant to raise finger at them. So, Ops are liable to pay compensation in this case.
Be it noted here that OP No.2 was in no way connected with the actual operation and treatment of the Complainant. He was only requested to check up the patient regarding post-operative status before discharge. Accordingly, he gave his advice on examining the Complainant. No question was raised as to any negligent act or deficiency in service against OP No.2.
Point No.3 & 4.
Following our discussions in connection with Point No.2 made herein above, we are of the opinion that there was deficiency in service and/or negligence on the part of the OP No.1 and 3 in connection with the operation of the Complainant. The OP No.1 is the Doctor, who had actually operated upon the Complainant and OP No.3 is the Nursing Home where the said operation was conducted. We have already held that OP No.2 was in no way connected with the operation of the Complainant and so, the claim against him is liable to be rejected. So, both OP No.1 and 3 are liable to pay compensation.
We have already observed that there was no dispute on the part of the Complainant as to any wrong treatment given by the OP No.1. However, the only thing, which the Complainant raised, is that her right kidney was removed without her consent and the so called document of consent which was produced by the Ops is found to be not valid in accordance with the requirements of Indian Medical Council Act, 1956. So, considering this, we are of the opinion that a compensation of Rs.1 lakh would be sufficient to meet the ends of justice. This apart, the Complainant is also entitled to Rs.15,000/- towards mental pain and agony. The Complainant is also entitled to Rs. 5,000/- towards litigation cost.
With this, all the issues are accordingly disposed of.
Hence,
It is ordered,
That the instant case be and the same is allowed on contest.
The Complainant is entitled to get Rs.1 lakh (Rupees One Lakh only) as compensation, Rs.15,000/- (Rupees Fifteen Thousand only) towards mental pain and agony and Rs.5,000/ (Rupees Five thousand only) towards cost of litigation.
Both the OP No.1 and 3 are jointly, and/or, severally liable to make the said payment, which comes to Rs.1,20,000/- (Rupees One Lakh Twenty thousand only) in total to the Complainant within 45 days from the date of this order, failing which the Complainant shall be at liberty to execute the same through due process of law. If the said amount is not paid within the stipulated time as above, both the Ops are liable to pay interest @8% per annum on the awarded sum until realization.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action, if any.
The copy of the Final Order is also available in the official Website: www.confonet.nic.in.
Dictated and corrected by me.
