Hon’ble Mr. Haradhan Mukhopadhyay, President.
The brief fact of the case of the Complainant Debendra Barman is that his deceased brother namely Dilip Burman had been suffering from fever. Doctor N. Das , the OP-1 medically treated him on 16/5/2015. After checking up he sent the patient to Maa pathological laboratory , Mathabhanga, Cooch Behar for some test on the same date. The patient was medically tested at Maa pathological laboratory,OP-2 and his blood was tested. From the blood report it was revealed that MP.PV had been found after testing. Having received the report the Complainant again went to the chamber OP-1. After going through the report OP-1 Dr. N. Das prescribed some medicine. Despite using the medicine the physical condition of the patient was deteriorated. It was reported to the OP-1 but OP-1 assured him that the patient would come round with the passage of time. Since there was no improvement, the complainant’s brother was compelled to be medically treated by another doctor Dr. Jayanta Ghosh. Dr. Ghosh advised the patient for admission into Mathabhanga SD Hospital on 26/05/2015 and treatment continued up to 29/05/2015 and he was discharged. His treatment was continued there on the basis on blood test and typhoid. But his condition did not improve. The patient was again taken to Dr. N. Das OP-1 on 04/06/2015. The OP-1 prescribed some medicine for Malaria but the condition of the patient deteriorated. Then the patient was taken to the Mathabhanga SD hospital on 09/06/2015 in the department of Homeopathy. After examination it was remarked infection 'DS OPD' 09/06/2015 with advice of some further test. Then the doctor referred the patient to NBMC, Siliguri on 10/06/2015. His treatment was started from 12/06/2015 at NBMC hospital and he was referred to MOPD with remark of post typhoidal care of weakness, pain in cervical region. After treatment the patient came back. After a few days the patient was again taken to Dr. N. Das, O.P.1 for treatment on 19/06/2015 and the report of NBMC and Hospital was shown to Dr N. Das with an advice to consult with dermatologist. Then the patient was taken to Dr. Nirmalya Roy, General Physician and Critical Care specialist SD Hospital Mathabhanga on 22/06/2015. He also referred some pathological test and further referred to NBMC, Siliguri to cardiologist. The patient was then shifted to in NBMC and hospital, Siliguri on 26/06/2015. After testing the clinical diagnosis was 'pericardial effusion' on the same day after testing at Prajapati Diagnostic Centre at Siliguri for investigation of Blood on 27/06/2015. As per report Malaria was not found. The patient was again taken back to OP-1 Dr. N. Das on 27/06/2015 alongwith all reports on 02/07/2015. Dr N. Das prescribed some medicine and referred to cardiologist and chest specialist. Then the patient was taken to Joydeep Sarkar, MBBS who also referred to cardiologist on 09/07/2015. Thereafter the patient was brought to MJN hospital, Cooch Behar on 14/07/2017. After checking up Doctor prescribed some medicine but there is no improvement of fever. Then the patient was taken to Dr. Ajesh kr Kundu attached to NBMC and Hospital, Siliguri on 17/07/2015. He requested to consult with physician. The patient was then taken to Mathabhanga SD hospital for admission on 19/07/2015 where he was admitted and discharged on 27/07/2015 with a diagnosis 'scleroderma'. Then the patient was shifted to MJN Hospital, Cooch Behar but it was detected that malaria parasite was not found and PV antigen negative. Then the patient was admitted to Shubham Hospital on 14/08/2015 and discharged after diagnosis 'scleroderma' along with some advices on 16/08/2015. Lastly the patient was taken to Neotia Getwell, Siliguri for admission on 23/09/2015. After treatment he was discharged on 26/09/2015 with some remark of difficulty in swallowing, weakness, system-sclerosis 'SCL 70'. Dr. S. Prakash of Neotia Gateway checked the patient on 20/09/2015 and advised for admission.
But there was no time. So, the patient Dilip Barman admitted to Mathabhanga SD Hospital. The said patient ultimately died on 03/11/ 2015 on 2:05 p.m. The Complainant came to know that the treatment of the patient was done in confusion due to lack of knowledge from the beginning.
The OP-2 Maa pathological laboratory actually done a wrong diagnosis through test due to which the patient died. The Complainant lodged complaint to Human Rights Commission, West Bengal on 17/9/2016. But despite receiving the complaint nothing was done positively. The Complainant filed an application under RTI Act to the CMOH, Cooch Behar on 04/12/2017 against which it was reported on 20/12/2017 that the said laboratory was registered till 13/03/2010 and the proprietor applied for renewal of registration but due to objection on 30/11/2017 it was not renewed. The cause of the action arose on 10/05/2015 when the Complainant’s brother deceased Dilip Barman first medically treated and lastly on 30/11/2017 when due to objection the registration was not renewed. The Complainant incurred medical expenses for a sum of Rs. 1,69,548/- towards medical expenses of the deceased Dilip Barman. The Complainant prayed for award of Rs. 10,000/- for the death of the Complainant's brother, Rs. 5,00,000/- for medical negligence, Rs. 15,000/- towards litigation cost, Rs. 40000/- for mental pain, agony and harassment.
The OP contested the case by filing written version wherein they denied major allegation. The positive defence case of OP-1 in brief is that the present case is barred by limitation and bad for defect of the parties. The positive defence case further disclosed that the patient Dilip Barman came with history of fever and he was advised for blood test Malaria PV but he was never referred to Maa pathological laboratory. The patient out of his own accord went to the said laboratory and from the report it was found that the patient is MP PV positive. Since the patient was suffering from Malaria, the OP prescribed some antimalaria drugs. Thereafter the patient did not come and report to OP-1 but he was admitted to Mathabhanga hospital under Dr. Jayanta Ghoshal who also administered antimalaria drug. The patient again came to OP-1 on 04/06/2015.The OP-1 prescribed some medicine without any antimalaria drug and advised some tests but the OP did not turn up. Once if the antimalaia drug is administered no further malaria parasite will be found in any subsequent blood report. From the record it would reveal that the patient will fully disobeyed the different doctors. The patient again came to the OP-1 on 19/06/2015 when he referred to skin specialist. As per medical authors and journal, antimalaria drug has no role to cause/develop scleroderma. On the contrary, antimalaria drug may also be prescribed for scleroderma. It is not within the knowledge of OP-1 as to whether OP-2 had license or not at that time. The patient died due to scleroderma. The OP-1 rendered services with utmost care, skill and experience of 28 years of practices along with the guideline of the Health department, Govt. of West Bengal. So the OP-1 prayed for dismissal of the case.
OP-2 also denied the major allegation. The positive defence case OP-2 is that maa pathological laboratory is duly authorized by CMOH, Cooch Behar and their license had been renewed time to time. The OP-2 did proper test of blood of Dilip Barman and after proper investigation the blood report was handed over to the complainant and blood glass slide has been preserved. On 16/05/2015 the OP-2 tested the blood of deceased and the OP-1 started treatment and prescribed medicine. After expiry of long time and treatment by OP-1 another test always indicates another result. The cause of death of Dilip Barman as mentioned by doctor is another subject matter. OP-2 had no negligence which amounts to deficiency in service or unfair trade practices. The OP-2 claimed that this case is liable to be dismissed with cost.
The different points of disputes involved in this case led the commission to ascertain the following points for proper attrition of the case.
POINTS FOR DETERMINATION
- Whether the Complainant is a Consumer or not?
- Whether the Complainant is entitled to get the relief as paid for?
- To what other relief if any the complaint is entitle to get?
DECISION WITH REASONS
Point No.1.
The OP challenged the case that the present case is barred by limitation. Ld. defence Counsel argued that the patient Dilip Barman died on 03/11/2015. So limitation will run from 03/11/2017 but the present case is filed on 13/03/2018. There is no petition of condonation of delay.
Ld. advocate for Complainant countered the same argument on the ground that after the death of the patient the Complainant filed application to CMOH and Human Rights Commission, W.B. He received the report of RTI on 20/12/2017 and reply of Human Right Commission, West Bengal on 03/02/2016. So limitation should be counted from 20/12/2017.
The argument has reasonable force in as much as the complainant raised his grievance to Human Right Commission and CMOH. These are continuous process of invoking cause of action. So the last date for cause of action actually arose from 20/12/2017. The present case is filed on 13/03/2018.So, the present case is well within the limitation period and accordingly it is not barred by the law of limitation.
It is fact that the patient Dilip Barman was medically treated by different doctors at different time up to the date of his death. From the pleading it is crystal clear that the complainant had no grievance against any other doctors. So any defence by any other person is not a subject matter of the case other than the treatment and medical test of O.P.1 and O.P.2. So the present case is not bad for defect of parties.
Accordingly point number 1 is answered in affirmative on behalf of the complainant.
Point No.2 & 3.
Both the points are closely interlinked with each other and as such these are taken up together for brevity and convenience of discussions.
It is the specific allegation of Complainant that because of wrong diagnosis of treatment by O.P1, Dr N. Das to Dilip Barman ,the brother of complaint died.
The allegation is so acute and heart rendering complaint that a thread bearing analysis of the entire evidence and the argument advanced by Ld. advocates of both parties are essential for just and effective judgment in the case.
The admitted position is that the O.P.1 started the treatment of the patient on 16/05/2015. It is also admitted fact that the doctor after treating the patient referred for some pathological test.
It is the allegation of complainant that the O.P.1 referred the patient to Maa pathological lab O.P.2 for some test.
The O.P.1 denied the said allegation on the ground that he only referred for pathological test but did not mention any specific name of Patho Lab.
After perusing the prescription dated 16/05/ 2015 it transpires that in the said prescription no name of Maa pathology is mentioned but the test of PV is mentioned. But after scrutiny of the report of the Maa Path Lab it is found that in the column of the report dated 16/05/2015 “referred by Dr. N Das”, MBBS is mentioned.
Ld. advocates for the complainant tried to mention that unless referred by Dr. N. Das, the pathology would not have mentioned his name. No specific oral evidence is adduced in this respect. So the document is the best evidence in the case. Since the test was done on the basis of the reference of this doctors,so the patient party was at liberty to have the test conducted at any pathological Laboratory of their choice.
The complainant also did not cross examine the O.P.1 or put any interrogatories in this regard. So in the absence of an specific mentioning of the name of the Maa Pathology in the prescription, it cannot be said to have been duly proved that the O.P.1 referred the patient for pathological test to O.P.2, Maa Pathological laboratory.
But one thing is important for consideration that the doctor did not mention in his prescription about any further report or review after how many days. So it was the latches the part of O.P.1. Usually a doctor at the end of the prescription mentions either SOS or TCA after a few days. But in the instant case there is no such direction of O.P.1.
Ld. defence Counsel O.P.1 argued that the patient was medically treated by as many as 14- 15 doctors. Had he been under treatment of O.P.1 doctor only then he could have been held responsible solely.
The argument is to some extent correct. It is found from the case record that the complainant was medically treated under different doctors at different time apart from the O.P.1Dr. N. Das.
Ld. defence Counsel further argued that the pathological laboratory O.P.2 had no registration at the relevant time. So whether the pathological test was done properly or not is a big question. In order to conduct a pathological test of Malaria the necessary direction and guideline are given in the kit.
After Perusing the case record and the document it is found that the defence plea actually supports one of the contentions and allegations of the complaints. On Scrutiny of documentary evidence it transpires that annexure-B is proved on behalf of the complainant which is the pathological report of the patient Dilip Barman dated 16/05/2015 conducted by Maa pathological laboratory. The complainant alleged that at the material point of time the said pathological laboratory had no registration.
The complainant further proved annexure-T dated 04/12/2017 which is an application under section 6 of RTI act 2005. In the said application information was sought for inter alia as to whether the said Maa pathological laboratory is authenticated or not. Against the said question, answer was given through annexure T/1 by the office of the CMOH, Cooch Behar dated 20/12 /2017 wherein it is replied inter alia that the said pathological laboratory was registered till 13/03/ 2010. The proprietor had applied in 2017 for renewal and registration of license but due to objection of enquiring officer on 30/11/2017 the application was rejected.
As per annexure-T, the complainant by filing application under RTI Act 2005 wherein the question was put as to wheather there is necessity to have permission from Health department before starting the business.
Against the said application of RTI, Office of CMOH, Coochbehar replied through Annexure T/1 that as per Clinical Establishment Rule 2003, every Clinical Establishment necessarily requires license for running pathological laboratory and the license is usually granted for one or three years.
After assessing of said documentary evidence annexure-T and annexure-T/1 it is evident that the said Maa pathological laboratory had no valid license at the time of pathological test of the patient.So the said O.P.2 laboratory had no valid license.
The patient Dilip Barman was advised for pathological test on 16/5/ 2015. Accordingly the blood of the said patient was medically tested by O.P.-2, Maa pathological laboratory on 16/05/2015. As per Annexure-T/1 the said Maa pathological laboratory was registered till 13/03/ 2010. Thereafter the proprietor applied in 2017 for renewal and registration of license but due to objection of the enquiry officer on 30/11/2017 that application are rejected.
The complainant categorically averred in para 21 of complaint that the said O.P.-2 pathological lab had no valid license at the time of pathological test .Against the said allegation O.P.2 had made an evasive denial. Instead the O.P stated in their written version that it is true that the licence of O.P.2 has been renewed from time to time. But it is important to consider that O.P.2 could not prove any document to counter the annexure-T and T/1 to establish that at the relevant time of pathological test of the patient on 16 /05/2015 the O.P.2 pathological lab had valid license.
So due to the said pathological lab being run without having valid license, it tantamounts to deficiency in service.
As per the said pathological test report the PB was found on the basis of which the O.P.1 medically treated the patient but immediately thereafter when the patient was subsequently medically tested at other lab on 10/6/2015 PV was found negative.
Ld. advocate for the complainant rightly argued that because of wrong medical test of pathological lab the patient was not properly medically treated.
The final report of Neotia getwell, annexure T/1 and the annexure-T, Shubham Hospital supports the case of the complainant.
As per the said report of the Shubham Hospital dated 16/08/2015, the diagnosis was 'scleroderma '.
The patient was finally died due to 'scleroderma '.Treatment for the said disease was not actually by the O.P.1,but it is the defense plea by O.P.1 that the patient died due to scleroderma which is long term progressive disease of autoimmune condition that causes the body to produce the much connective tissue. Antimalaria drug has no impact to cause scleroderma.
Despite the said defence plea there is nothing to show that the initial test of blood was rightly done or the result was correct since the O.P.2 pathological lab had no valid license.
The O.P.2 Pathological Lab answered against some interrogation by reply dated0 3/08/2022 wherein the O.P.2 stated that the O.P.2 had valid license dated 13 /02 2022 up to 13/03/ 2023. This period is irrelevant to the period in dispute.
The O.P had deposed wrongly before the court which is evident from the fresh license granted to O.P.2 dated 25/01/2018 wherein it is categorically stated that the period of irregular running the establishment is 14/03/ 2010 to 13/03/2017.
Thus the best evidence to establish that O.P.2 pathological lab had no valid license and it was running irregularly proved by the complainants stands well proved. Mere fact that the license was renewed at a subsequent stage is no ground to substantiate that the previous license valid.
Thus the O.P.2 conducted the pathological test of Dilip Barman without having any valid license of CMOH which tantamounts to deficiency in service towards the patient Dilip Barman.
The O.P.1 also categorically replied against the interrogatories on 03/08/2022 where from it is revealed that O.P1 doctor medically treated on the basis of the pathological test report over which he has no control. Therefore allegation of the deficiency in service against O.P.1 is not established.
In the backdrop of the aforesaid assessment of evidence and observation made herein above the commission comes to the finding that the case stands proved against O.P.2 up to the hilt.
Point number 2 and 3 are accordingly decided in favour of the Complainant. Consequently, the case succeeds on contest against O.P.2 Maa pathological laboratory.
Hence, it is
Ordered
That the complaint case number CC/19/2018 be and the same is allowed on contest against O.P.2, Maa pathological lab with cost of Rs.10,000/- and dismissed on contest against O.P.1. Dr. N. Das. The complainant Debendra Barman do get an award for Rs.10,00,000/- against the O.P.2, Maa pathological Laboratory towards loss of life of the complainant's brother Dilip Barman and medical negligence and Rs.50,000/- for mental pain and agony. The O.P.2 is directed to pay Rs.10,60,000/- to the complainant within 30 days from passing the final order failing which the Complainant shall be entitled to get an interest @ 6% p.a. on the awarded money from the date of passing the final order till the date of realisation.
DA to note in the Trial Register.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and 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.
