DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: BHADRAK : (ODISHA).
Consumer Complaint No. 28 of 2021.
Date of hearing : 08.08.2023.
Date of order : 21.11.2023.
Dated the 21st day of November 2023.
Tapaswini Pati
W/o:- Prasanna Kumar Padhi,
Vill:- Chhatish Samil Nandore Samil Sendia,
Po:- Sriganga, P.S:- Dhusuri, Dist:- Bhadrak.
………….. Complainant.
-:Versus:-
Dr. Mrs. Kshyama Parhy (MD),
Sr. O & G Specialist, Ex-CDMO, Bhadrak,
At:- Naripur, Astal,
Po/PS/Dist:- Bhadrak.
.…………Opposite party
P R E S E N T S.
1. Sri Shiba Prasad Mohanty, President,
2. Smt. Madhusmita Swain, Member.
Counsels appeared for the parties.
For the Complainant : Sri J.B. Agasti, Advocate & Associates.
For the Opp. Party : Sri K.K. Das, Advocate& Associates.
J U D G M E N T.
SRI SHIBA PRASAD MOHANTY, PRESIDENT.
In the matter of an application filed by the complainant alleging deficiency of service against the Opposite Party under Consumer Protection Act, 2019.
Fact of the case is that, the O.P. is a Sr. Specialist in O & G and Ex- CDMO, Bhadrak & after retirement from her service, she is regularly treating patients privately after taking professional fees of Rs.200/- from each patient and in this case, O.P. has taken Rs.200/- fees from the complainant & checking the patient from the first time on 16.11.2020 & since that date O.P. was checking the complainant & prescribing her to take medicine to save her fetus, who was inside the womb of the complainant. O.P. also advised the complainant for ultrasound to know the condition of the fetus. Complainant states that as per advice of the O.P., complainant went to examine the fetus inside the womb of the complainant through ultrasound by Dr. Rajesh Kumar Agarwal. The complainant has handed over the ultrasound report to the O.P. & O.P. after scrutinizing the ultrasound report, whimsically prescribed on 22.12.2020 to take different medicines. But as per the report of the ultrasound, single fetus was already dead at the time of examination since 22/12/2020. But the O.P. in negligent manner over looked the ultrasound report of Dr. Rejesh Kumar Agarwal. The complainant in bonafide belief followed the direction of the OP treating doctor and consumed the medicines prescribed by the OP. But when the complainant sustained excruciating pain in her womb, she went to D.H.H, Bhadrak on dt.01.02.2021 & there admitted as an outdoor patient vide Regd. No.62039. Thereafter the doctor examined the complainant & verified the report of ultrasound and opined that the single fetus has already been dead since 22/12/2020 as per the report of ultrasound & thereafter the doctor of DHH, Bhadrak aborted the dead fetus from the womb of the complainant on the said date and the life of the complainant was saved. Due to the negligence of the OP, the OP the complainant could have died. But for the right diagnosis and treatment of Doctor of DHH, Bhadrak her life was saved. The Complainant has sent one legal notice to O.P. on dt.12.02.2021 demanding a compensation of amount to Rs.5,00,000/- for negligent treatment by the O.P.. But the O.P. preferred to remain silent and did not reply to the legal notice.
On the other hand, the O.P. submits that, the allegations made in the petition are all false. O.P. is not aware whether the complainant has made ultrasound investigation at Om Shanti Diagnostic Centre on 22.12.2020. Complainant has never shown the alleged ultrasound report the O.P. It is not a fact that the O.P. has scrutinized the alleged ultrasound report & prescribes medicine. No ultrasound report showing the fact that the fetus is dead was ever shown to the O.P. The O.P. is unknown about the facts narrated in the complaint petition. No cause of action arose on 16.11.2020, 22.12.2020 & 01.02.2021. After retirement the O.P. is not doing any private practice & living a religious life. In 2020 comes the Covid-19 Pandemic. At that time no doctors were consulting the patients & all the nursing homes were not functioning. The general public requested the O.P. to give some help to the patients for their survival till proper treatment is available. Out of humanitarian ground the O.P. agreed only to do emergency consultation without any fees. Covid-19 Pandemic was at its peak. The O.P. who is a senior citizen was not coming with direct contract of patients & only prescribing necessary life saving medicines. The O.P. does not remember the actual & specific circumstance how the complainant was consulted. The prescription is clear that one ultrasound report was shown to the O.P. The O.P. has noted down the result of said report shown to the O.P. The O.P. was not making physical checkup & only prescribing life saving medicine there was no scope for her to know about the position of fetus. The report filed by the complainant clearly & boldly shows about the dead fetus which can be known by a lay man. So no question arises for the O.P. to ignore such thing. The O.P. never caused any deficiency of service within her knowledge. The O.P. being a doctor does not come within the ambit of service within section 2(42) of the definition of service under the Consumer Protection Act, 2019.
Having heard the rival contentions and materials available in the record, this commission frames these following issues to be answered before adjudication of the consumer dispute.
ISSUES.
- Whether the OP being a doctor, her services does not come under the ambit of service as explained under the Consumer Protection Act, 2019?
- Whether the Complainant has shown the report to the OP?
- Whether the OP was negligent in providing service?
- What relief the complainant is entitled to?
As per the definition of service in Section2 (42) of Consumer Protection Act, 2019 "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 banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. As the definition of services under the Act does not include medical treatment expressly, this commission needs specific evidence with regard to payment of consideration for obtaining the services to bring the said service into the ambit of services under the Act. There is a phraseology “ but not limited to” which in Section 2(42) of the Act which gives this Commission ample opportunity to include other services. But in lack of cogent evidence with regard to payment of doctor’s fees it is difficult on the part of this commission to include such services into the ambit of services as explained under the Act. Specifically when, the OP avers that she has left all kind of private practice and leading a spiritual life. Due to the extra ordinary COVID-2019 circumstances upon pressure from peer and friends she had agreed to render life saving medical advice and treatment in the sake of humanity. In such circumstances, the proof of payment of consideration is germane. Sans such evidence, this commission finds it difficult to persuade itself that the services of OP being a doctor, does not come under the ambit of service as explained under the Consumer Protection Act, 2019? Thus Issue No.1 is answered in negative and against the complainant.
Every person in the medical profession has a duty and under the implied undertaking to act and with a reasonable degree of care, caution and skill. The questioned Ultra Sound report in bold letters says that there is a dead fetus in the womb which a man who can read English language can understand. It does not need a that person to be a doctor to know this. However, as this Commission does not hold the complainant to be a consumer under the provision of the Consumer Protection Act, 2019 to raise the present dispute hence the consumer complaint is not maintainable. As Issue No.1 is answered in negative, there is no further need to go into the discussion of Issue No. 2,3 & 4.
O R D E R.
In the result, the complaint be & same is dismissed as not maintainable. No order of cost.
This order is pronounced in the open Court on this the 21st day of November 2023 under my hand and seal of the Commission.
