This is an application u/s.12 of the C.P. Act, 1986.
Complainant being a housewife and having a BPL Card No.15800787 was conceived and was feeling uneasiness and vomiting and including lower abdominal pain for which she consulted with the OP on 24-01-2011 and again consulted on 20-02-2011 when OP2 advised for urine Preg colour test and the same was done insteneously which confirmed the pregnancy positive but the pain in lower abdomen gradually was aggravated and caused restlessness which was brought to the knowledge of the OP2 who again examined the complainant and advised that pain cannot be corrected and diminished without a minor surgical procedure and accordingly, advised for admission on 22-02-2011 at Nursing Home, namely Maya Health Point at No.2A, Mahanlal Street, Kolkata – 700 004(OP2) at 10.00 a.m.
Accordingly, complainant met the OP who placed the complainant in Operation Theatre in the Nursing Home and without any consent of the complainant performed surgery and resulted termination of pregnancy without proper care and sincerity and negligently.
But the OP cleverly refused to issue any ‘discharge certificate’ simply said it is a case of ‘day care’ and required neither consent nor discharge certificate and thus released with the recommendation of 5 medicines but after the aforesaid surgery instead of getting rid from the persistence pain and problem, the pain and multiple problem increased with unbearable pain and intolerable pain to the complainant and considering the above situation complainant was taken before a doctor of Dulal Das Bhanada Seva Sadan who immediately referred to Emergency (G & O) for better management on 03-03-2011. Accordingly complainant got admitted at R.G. Kar Medical College & Hospital, Kolkata, on 03-03-2011 at 20.42 hrs. where complainant was re-operated on emergency basis for saving the life due to incomplete, sub-total operation caused retained products and inflammation due deliberate negligence on the part of the OP and septic abortion.
The acts on the part of OP clearly speaks about failure to communicate i.e. failure to warm about inherent and special risk of treatment and surgery, error in treatment, conducting surgery without proper care, negligence in post operative care, per-se giving wrong treatment and failure to modulate well established parameters of operation.
Fact remains OP conducted M.T.P. without prescribed qualification at a nursing home not recognized for doing MTP is deficiency and negligence manner of service of the doctor and the nursing home and in fact, OP caused permanent disablement to the complainant from becoming mother in future. Not only that complainant suffered monetary loss owing to the default and negligence of the OP but also spent huge amount for treatment and for travelling and medicine etc. So, complainant has prayed for compensation for negligent and deficient manner of service and treatment given by the OPs against the OPs.
On the other hand, OP doctor by filing written statement submitted that Dolly Patra, w/o. Sri Sanjoy Patra was under her treatment from 22-02-2011 and came with mother who is known to her being an Ayah of Dreamland for consultation with her in Life Line Nursing Home and the mother of the complainant was known to her for a long time and the OP had a very soft corner for the mother of the complainant for which the OP had shown greater care to the complainant at a free of cost and the patient disclosed that she is a mother of one 5-year old child and she is being neglected by her husband and is suffering from mal-nutrition and she was amenorrhic for 1 and ½ months like to terminate pregnancy and like to have permanent sterilization and she checked her urine pregnancy test was positive. It is specifically mentioned by the OP1 that he had discussed in detail the pros and cons of the termination of the pregnancy and also the pros and cons of the different methods of termination and advised surgical method of termination and given mifepristone orally and misoprostol tablet high vaginally to induce medical abortion and some antibiotics and she also advised her against the permanent sterilization because she had only one child and no consultation charge and no treatment cost was taken by the OP as they expressed their economic hardship which was known to the OP.
On 25-02-2011, Saturday the patient came to her complainant with abdominal pain and she examined her and found a lump in lower abdomen and asked for immediate USG and gave some pain killer medicine free of cost and advised her to continue antibiotic. On 26-02-2011 Sunday at 10.00 p.m. the mother of the complainant phoned her that they went to R.G. Kar Hospital with acute pain in abdomen and she advised her to come to Naba Jiban Nursing Home as Dreamland is closed where she would be taken care and she also told her that her husband Dr. Pallab Gangopadhyay would be attending them and would take necessary actions needed. They have also told her that they were getting treatment and advised from Dr. Uttam Samanta who is an Ayurvedic doctor of the locality. After this there was no communication from them for two days.
On 28-02-2011 the relatives of the patient came to her chamber and she came to know that she had undergone an operation in R.G. Kar Hospital. Soon after that at 11.00 a.m. she had gone to R.G. Kar Hospital and found that the patient was admitted in Unit 4A under Dr. A.K. Majhi and Dr. A.K. Patra in Bed No.10 of 1st floor of Gynaecology ward and came to know that patient is admitted with sepsis with 16 weeks pregnancy and gut injury and treated by Laparotomy. As per OP’s knowledge patient was dischargfed after 7 days and on 16-03-2011, Wednesday, the husband of the complainant came to her and informed that they have shifted the patient to Bankura and patient was well but they could not procure nutritious food for the patient due to economic problem. So, she offered her some multivitamin tonic and iron preparation.
Sometime in April, 2011 the mother of Dolly Patra with her husband came to her chamber and discussed about her health and informed that the patient was under ayurvedic treatment so, she had no knowledge of the patient and her treatment.
It is specifically mentioned that she never attempted for any surgical intervention for medically termination of pregnancy and that allegation is completely false and further submitted that from the report of the R.G. Kar Hospital it is clear that suffering was not for any surgical intervention but for septicemia which is an infection and the treatment was rendered at R.G. Kar Hospital. Further it is submitted that there is no question of supplying any discharge summary because complainant had never been operated at any point of time and moreover after that complainant had been treated by several doctors which had been suppressed by the complainant with ulterior motives and entire allegation of the complainant is false and fabricated and the treatment what had been given by the OP is best possible treatment from her side and moreover there is no such document to show that after such treatment made by the OP complainant’s any complication was not arisen or disclosed by the complainant and present complaint is completely false and moreover there is no paper to show that there was an MTP by OP and practically complainant being influenced by some persons to get a chance to squeeze money filed this complaint with false allegation.
Further it is submitted that the last treatment was done by the OP1 in the month of February, 2011 whereas the present complaint is filed in May, 2011 so, the present complaint is barred by limitation.
Decision with Reasons
On indepth study of the complaint and the written version and also hearing the argument of Ld. Lawyers of both her parties including the last discharge summary issued by R.G. Kar Hospital it is clear that complainant lastly admitted on 03-05-2011 at R.G. Kar Hospital and she was released on 22-03-2011 but before that the doctor of the R.G. Kar Hospital never stated that before that she was treated by anyone and any other operation was held. But truth is that she was admitted to the R.G. Kar Hospital when it was detected that it was septic abortion and no doubt after that operation septic abortion was completely cured. Fact remains that it is admitted by OP1 that as because complainant expressed her desire to terminate her pregnancy she prescribed some medicine but no surgical intervention was attempted by OP for medical termination of pregnancy and, in fact, vaginal tablets were advised for avoiding operation with some antibiotics. Thereafter, complainant went to her chamber when OP asked her for USG and to continue antibiotic but complainant did not turn up but she was admitted to R.G. Kar Hospital. Anyhow, we have gathered that complainant’s mother is working in nursing home as Ayah where OP used to treat and considering her condition she gave medical aid without charging any fees or cost of the medicine but she supplied medicines. Truth is that she supplied vaginal tablets of abortion along with antibiotics but anyhow, complainant was treated and for abortion medicine was made but question is how that doctor prescribed such medicine for abortion when she found that she was suffering from mal-nutrition, it is the duty of the doctor to make the complainant fit for termination of pregnancy by using medicine but that has not been done. But fact remains no doctor has any authority legally to prescribe any medicine for any termination of pregnancy of any patient without her consent as per Medical Termination of Pregnancy Act and Rules and in fact, in respect of that there is no prescription and it is also proved that OP1 doctor prescribed such medicine without following the provision of medical termination of pregnancy and that is no doubt a negligence on the part of the OP because it is mandatory provision of law that no doctor is permitted to proscribe any medicine for medical termination of pregnancy and to terminate pregnancy without getting her permission in writing and as per provision of Medical Termination of Pregnancy Act and for which no doubt OP1 acted illegally and against the legal procedure and for which she shall no doubt compensate the complainant. Might be she treated her free any cost for that reason for violation of Medical Termination of Pregnancy Act OP1 cannot be exempted from her liability separately. When admitted position is that OP1 prescribed vaginal tablet to terminate the pregnancy to the complainant but no such paper was produced by the OPs1 and 2 that it was prescribed after complying the provision and regulations of Medical Termination of Pregnancy Act. In the light of the above observations we are convinced to hold that for violation of provision of Medical Termination of Pregnancy Act OP1 has no doubt committed negligence as a doctor and no doubt caused damages to the complainant and for which OP1 is liable to pay some compensation to the complainant.
Fact remains in this case OP1 has tried to convince that this case is filed after lapse of two years but no application u/s.24A of the C.P. Act for condonation of delay was filed so, this complaint is not maintainable.
But in this regard we have gathered that the complaint was initially filed by the complainant before the D.C.D.R.F., Bankura but the Ld. Forum, Bankura rejected the complaint on the ground of territorial jurisdiction of the Forum but gave the complainant liberty to file before appropriate forum having territorial jurisdiction to try the case if she desires and that order was passed on 23-04-2011. So, it is clear that complaint was filed within time before the Ld. Forum, Bankura but it was rejected on the territorial ground and complainant got liberty to file this complaint with proper jurisdiction of Forum and that order was passed on 23-04-2013 and present complaint was filed on 27-05-2013. So, we find that there is no delay in filing this complaint and practically complainant within reasonable time filed the same after rejection of the complaint on territorial ground and after getting such liberty to submit the claim to proper forum as per order of the Ld. Forum, Bankura. So, the allegation of the OP that the complaint is time barred is completely baseless but it is not time barred and there is no question of submission of delay petition and rightly complainant did not file such application u/s.24A of C.P. Act.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.5,000/- against OP1 and same is dismissed against OP2 but without any cost.
OP1 is hereby directed to pay a sum of Rs.40,000/- to the complainant as compensation for Medical Termination of Pregnancy of the complainant for violating the provision and regulations of Medical Termination of Pregnancy Act and Regulations and same shall be paid to the complainant along with the cost of this case i.e. the total Rs.45,000/- within one month from the date of the order and it must be paid by the OP1 by issuing a banker’s cheque in the name of the complainant or a demand draft to the complainant of any National Bank and if OP1 fails to comply the order within the stipulated period and if it is not complied in that case penal interest at the rateRs.200/- per day shall be assed till full satisfaction of the degree and penal interest if collected it shall be deposited to this Forum.
OP1 is directed to comply the order strictly in default penal action u/s.27 of the C.P. Act, shall be started against her.
