Date of Filing: 04.11.2016 Date of Final Order: 05.12.2017
Sri Asish Kumar Senapati, President
FINAL ORDER
This is an application u/s 12 of the C.P. Act, 1986. One Smt. Sima Debnath, hereinafter referred as Complainant, lodged the complaint against Dr. N. Mahapatra, hereinafter referred as O.P., alleging medical negligence and deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant being a resident of Sitalkuchi, Dist. Cooch Behar came to the OP on 18.03.16 with pain in her right side breast. The OP clinically examined the Complainant and diagnosed that she was suffering from Fibroadenosis (Right side) and advised her for operation for excision of mass immediately for which a total expenses of Rs.20,000/- was to be incurred. The OP performed the operation on 20.03.16, sent the lump for Histopathological test and discharged the patient with advice of taking some medicines. The OP did not issue any money receipt for receiving payment of Rs.20,000/- from the patient party. The Complainant came to the OP on several occasions on 26.03.16, 31.03.16, 06.03.16 and 12.04.16 along with the report of Histopathological test and the OP prescribed some medicines and assured that she would be perfectly alright within two months. The condition of the Complainant was deteriorated gradually and she visited Dr. S. Pradhan and Dr. B. Sarkar at Siliguri on 22.04.16 and 23.04.16 respectively and both the Doctors advised her for Mastectomy because her Histopathological test report revealed Carcinoma. Finding no other alternative, the Complainant and her family members rushed to Saroj Gupta Cancer Centre & Research Institute, Thakurpukur, Kolkata by train and Doctors at Saroj Gupta Cancer Centre & Research Institute, Thakurpukur diagnosed that she was suffering from “Right Carcinoma Breast”. To save her life, the Doctor performed MRM on 02.05.16 and the Complainant incurred an expenditure of Rs.1,43,751/- and presently continuing chemo-therapy. The OP, Dr. N. Mahapatra was extremely negligent at every step of his diagnosis and he failed to use the reasonable degree of skill, care, knowledge and prudence while treating the patient of Carcinoma. The OP had not even given proper advice and treatment to the patient which amounts to blatant medical negligence and deficiency in service. The OP discharged the patient from his chamber after operation on 20.03.16 without issuing any money receipt and in May, 2016, Sri Pralay Debnath, husband of the Complainant, went to the chamber of the OP for obtaining bills and at that time, the OP took all original prescriptions dated 18.03.16, 20.03.16, 31.03.16 and 06.03.16 from the Complainant’s husband and issued another prescription which amounts to unfair trade practice. The matter was duly informed to the Superintendent of Police, Cooch Behar. The Complainant suffered irreparable loss, mental pain and agony and also suffered huge monetary loss amounting to Rs.2,63,751 (Nursing Home Charges at Kolkata Rs.1,43,751 + Rs.20,000/- as Operation Charges at Cooch Behar) and Rs.1 lakh for miscellaneous expenses such as journey fares, food and lodging, taxi fares etc. The cause of action of the present case arose on 18.03.16. The Complainant has prayed for compensation of Rs.15 lakh for medical negligence and deficiency in service, Rs.2,63,751/- for medical expenses incurred by the Complainant, Rs.10,000/- towards cost of proceeding and Rs.2 lakh for mental pain, agony and harassment.
The OP put his appearance and filed w/v on 21.03.17 inter-alia denying the material allegations made out in the complaint, contending that the complainant has no cause of action to file the present case against the OP and the case is bad for defect of parties. It is the version of the OP that the Complainant had been to the chamber of the OP on 18.03.16 with a history of fever and pain and she was clinically examined and it was found that she had Fibroadenosis on Right side breast. The OP advised her for excision of mass through operation. The operation was done on 20.03.16 and the OP sent the lump for Histopathological test as the OP suspected the said Fibroadema as Carcinoma. He also prescribed some medicines and the operation was uneventful. Thereafter, on getting the report of the said Histopathological test, it was found that the patient had Infiltrating Ductal Carcinoma Grade III and accordingly, he prescribed some medicines and advised the patient party to consult with an Oncologist. There is no negligence and carelessness in treating the patient. The patient lastly came to the OP on 12.04.16. Thereafter, she never turned up nor reported anything. From the report of Histopathological test, it reveals that it is the case of Infiltrating Ductal Carcinoma, Grade III, which falls within the special section of Oncology. As such, the OP had nothing to do any further and accordingly, he advised the patient to consult with Oncologist. The OP received Rs.20,000/- for operation as consolidated fees and issued bills on 20.03.16. The Complainant lodged the complaint and claimed an exorbitant amount of compensation for illegal gain and the complaint is liable to be dismissed with cost.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the O.P any deficiency in service, as alleged by the Complainant?
- Whether the Complainant is entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point Nos.1.
On perusal of the complaint, w/v and documents filed by the Complainant, we find that the Complainant is a consumer under the OP in terms of provision under Section 2(1)(d)(ii) of the C.P. Act, 1986.
Point Nos.2.
The Ld. Agent for the Complainant submits that cause of action of the case arose within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of this Forum. On a careful consideration over the written complaint and the w/v, we find valid substance in the argument advanced by Ltd. Agent for the Complainant. We hold that this forum has both pecuniary and territorial jurisdiction to entertain the complaint.
Point Nos.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant submits that the Complainant went to the OP at his chamber on 18.03.16 and the OP advised her for operation as she was suffering from Fibroadenosis on Right side breast and accordingly, operation was done on 20.03.16 on receiving an amount of Rs.20,000/-. He further argues that the OP examined the patient on 18.03.16, 20.03.16, 26.03.16, 31.03.16, 06.04.16 and 12.04.16. It was argued that the OP sent the lump after operation for Histopathological test and the report of Histopathological test was also perused by the OP on 06.04.16. He contends that the report of Histopathological test revealed that right breast lump Infiltrating Ductal Carcinoma, Grade III, but the OP only prescribed some medicines without referring the patient to any higher centre for treatment. It was urged that Praloy Chandra Debnath, husband of the Complainant, demanded the bill and the OP handed over a bill dated 20.03.16 after receiving the original prescriptions dated 18.03.16, 20.03.16, 26.03.16, 31.03.16, 06.04.16 and 12.04.16. He further contends that the OP mentioned the date 06.03.16 in lieu of 06.04.16 probably due to inadvertence and the Complainant filed Xerox copies of the prescriptions because the original prescriptions were taken by the OP at the time of issuance of the bill. It was argued that the Complainant was not feeling better, for which she went to Dr. S. Pradhan, a Surgeon at Sunrise Poly Clinic, Siliguri, on 22.04.16 who advised for completion Mastectomy and Axillary clearance and he also advised the patient to consult an Oncologist. He further submits that the Complainant herself and her family members rushed to Saroj Gupta Cancer Centre & Research Institute, Thakurpukur, Kolkata for treatment and the Doctors performed MRM on 02.05.16 and she had to incur a great deal of pain as well as expenditure for her treatment amounting to Rs.1,43,751/- and presently continuing chemo-therapy. It was urged that the OP was extremely negligent at every step starting from clinical diagnosis, from admission to operation and post operation period and he failed to use the reasonable degree of skill, care, knowledge and prudence while treating the patient suffering from Carcinoma. It is submitted that by keeping the patient under him, in spite of knowing the fact that the patient was suffering from Carcinoma and OP is not an Oncologist, is nothing but medical negligence and deficiency in service on the part of the OP. He urges that the Complainant suffered an irreparable loss including monetary loss amounting to Rs.1,43,751/- + Rs.20,000/- and other expenses of Rs.1 lakh. It is submitted that the Complainant is entitled to get reliefs as prayed for due to medical negligence and deficiency in service on the part of the OP. He draws my attention to a decision reported in (2013) CJ 397 (NC) wherein it is held that doctor having having no post graduate degree or diploma in Nephrology treated a patient suffering from kidney problem is guilty of medical negligence.
In reply, the Ld. Agent for the OP submits that the case is not maintainable against the OP as the Complainant is not a consumer under CP Act, 1986. He argued that the Complainant had been to his chamber on 18.03.16 with history of fever and pain in her right side breast and she was clinically examined and diagnosed that she was suffering from Fibroadenosis on Right side breast and on examining the condition, the OP advised her for excision of mass through operation and also advised the patient for admission. It is urged that the O.P. informed the patient party that total expenses of Rs.20,000/- was to be incurred. He submits that the OP conducted the operation on 20.03.16 and sent the lump for Histopathological test as he suspected the said Fibroadenosis as Carcinoma. It is further argued that on getting the report of Histopathological test, it was found that the patient had Infiltrating Ductal Carcinoma, Grade III and accordingly, he prescribed some medicines and advised the patient to consult an Oncologist and so there was no negligence and carelessness on the part of the OP. He further argues that the OP lastly examined the patient on 12.04.16 and thereafter, she never turned up and the OP had nothing to do any further as the report revealed that it was a case of Infiltrating Ductal Carcinoma, Grade III which falls within the special section of Oncology. He contends that the OP has no medical negligence and deficiency in service and the Complaint case is liable to be dismissed with cost. He drew our attention to a decision reported in 2016 (3) CPR 20 (NC) wherein it is held that the Doctor should not be punished if anything goes wrong. He also drew our attention to an another decision reported in 2014(2) CPR 340 (NC) wherein it is held that Doctor who used her best professional skill and knowledge and took due care and caution to treat the Complainant, cannot be held guilty of medical negligence.
We have gone through the written complaint, w/v, evidence adduced by both parties, documents filed by the Complainant and written arguments filed by both the parties. Admittedly, the Complainant came to the chamber of the OP on 18.03.16 and the OP advised the patient for operation of her Fibroadenosis on Right side breast. Admittedly, operation was done by the OP on 20.03.16 for excision of mass and the lump was sent for Histopathological test. Admittedly, the report of Histopathological test (Annexure B/2) revealed that right breast lump- Infiltrating Ductal Carcinoma (Histological Grade III). Admittedly, the OP had gone through the Histopathological report which was reflected in the prescription dated 06.04.16 but the Doctor put the date 06.03.16 in lieu of 06.04.16 due to inadvertence because there was no scope to go through the Histopathological report on 06.03.16. The OP examined the patient on 06.04.16 and prescribed some medicines and also on 12.04.16, he prescribed some medicines. It was the written version of the OP at para 9 that on getting the report of Histopathological test, it was found that the said patient had Infiltrating Ductal Carcinoma, Grade III and accordingly, he prescribed some medicines and also advised the patient party to consult an Oncologist. It was also admitted by the OP in para 10 that the patient lastly came to him on 12.04.16. We have gone through the prescriptions dated 06.04.16 which was wrongly written as 06.03.16 by the OP from where it appears that the OP had gone through the Histopathological test report but in spite of the knowledge about carcinoma, he prescribed some medicines on 06.04.16 and 12.04.16 without referring the patient to any higher centre or to the Oncologist for treatment. The OP has rightly mentioned in his w/v that the treatment of Carcinoma is not within his domain. In that case, why he did not refer the patient to any higher centre or to the Oncologist. We find no reason to believe the statement of the OP that on going through the Histopathological test report of the Complainant, the OP advised the patient to consult with an Oncologist as there is no whisper in the prescription. Not only that, he retained the patient from 06.04.16 to at least up to 12.04.16 without referring her to any Oncologist in spite of his knowledge that the treatment of Carcinoma is not within his domain. The OP retained the patient for a considerable period for his illegal gain and it tantamounts to medical negligence and deficiency in service. The Complainant alleged that there was negligence on the part of the OP from 18.03.16 till 12.04.16.
With due regards to the decisions referred by the Ld. Agents of both sides, we think that the decisions referred by the Ld. Agent for the O.P. are not at all applicable in the present case but the decision referred by the Ld. Agent for the complainant is applicable. On a careful consideration over the materials on record, we are of the view that diagnosis of Fibroadenosis of the Complainant and its excision on 20.03.16 by the OP was within the domain of the OP and we find no reason to hold that the OP had medical negligence and deficiency in service during the period from 18.03.16 to 31.03.16 i.e. before receiving the Histopathological test report but after going through the report on Histopathological test, the OP being an expert should have referred the patient to a Cancer Specialist or advised the patient accordingly about her treatment but in the present case, the OP did not refer the patient in spite of his knowledge that he is not an expert to treat a patient suffering from Cancer. Cancer is an unpredictable disease. According to the version of the Complainant, chemo therapy is going on to save her life. The OP has better knowledge about pros and cons of the fate of a patient suffering from Cancer. We do not think that the O.P. intentionally allowed the patient for advancement of her breast cancer. It is very unfortunate that the O.P, being a doctor having knowledge about the fact that delay in treatment of a cancer patient may be fatal, could not restrain himself from his greed of money received from the complainant as consultation fees for prescribing medicines on 06.04.16 and 12.04.16. It is not predictable how much loss has already been sustained due to negligence on the part of the OP but it can be safely said that disease of the patient has been advanced to a certain extent due to medical negligence and deficiency in service on the part of the OP. We think that the Complainant should be compensated for her loss. The Complainant has asserted that she has already spent Rs.1,63,000/- for her treatment. In our considered opinion, the OP should be directed to pay compensation of Rs.5,00,000/- to the Complainant due to his medical negligence and deficiency in service.
In the result, the Complaint case succeeds.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby allowed on contest against the OP with cost of Rs.5,000/. The OP is directed to pay Rs.5,00,000/- (Rupees Five Lakh ) only as compensation to the Complainant for his deficiency in service and medical negligence and also to pay Rs.5,000/- to the Complainant for litigation cost by 45 days from the date of Final Order, failing which the OP shall have to pay Rs.100/- for each day’s delay and the amount so accumulated is to be deposited in the State Consumer Welfare Fund.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
