Date of Filing: 15-03-2016 Date of Final Order: 21-06-2017
Sri Gurupada Mondal, President.
This is an application under Section 12 of CP Act, 1986 filed by Ambia Bibi against Dr. N. Mahapatra praying for Rs.1,50,000/- for medical negligence and deficiency of service, Rs.50,000/- for expenditure at Vellore, Rs.10,000/- as litigation cost and Rs.2,00,000/- for mental pain and agony.
The case of the Complainant in short is that on 28.09.15 she sustained severe pain on her left breast and as such, she went to the chamber of the OP and Dr.N. Mahapatra examined her and detected that she was suffering from “FIBROADENOSIS” (left breast) and advised for excision by way of operation of the lump immediately with the expenses of Rs.30,000/-. The Complainant deposited the said amount and the operation was done on 29.09.15 in his chamber by Dr. N. Mahapatra after some pathological tests. After operation, Dr. N. Mahapatra informed the family members of the Complainant that the operation was successful and the Doctor prescribed some medicines for post operation healing but no money receipt was issued in her favour.
It is further alleged that the Complainant did not feel comfort of cure and thereafter, the Complainant visited the chamber of the OP on 02.10.15, 11.10.15, 17.10.15 and 28.10.15 and the OP further prescribed medicines with an assurance of recovery preferably within two months but her condition was not improved, on the contrary, her condition started deteriorating gradually. The Complainant sustained heavy pain in her surgical site and could not move her left hand and her condition was very serious. Accordingly, she visited the chamber of Dr. Shyamal Chatterjee on 04.11.15 and Dr. Chatterjee after normal check-up advised the Complainant FNAC and USG on her both breasts. FNCC report revealed (1) Low grade labular carcinoma (2) Atypical ductal hyperplasia and USG report revealed small heterogeneous solid (SOL) in lateral quadrant of left breast and this report increased the mental agony of the Complainant.
Further case of the Complainant is that the Complainant and her family members finding no other alternative rushed to Christian Medical College, Vellore and consulted Dr. Supriya Sen, MBBS MS Department of Endocrine Surgery of CMC, Vellore, who examined the Complainant and diagnosed that she was suffering from “FIBROADENOSIS” on left breast. Dr. Sen performed left breast Lump Wide Local Excision under Laryngeal mash airway on 04.01.16 with the expenses of Rs.33,765/-.
It is further alleged that Dr. N. Mahapatra was negligent at every step and did not follow the standard of Medical and Surgical cure and did not use reasonable skill in treating the patient. Dr. N. Mahapatra did not remove the entire lump as per FNAC and USG reports and he did not give proper treatment and advice to the patient. According to the Complainant, it was a medical negligence and deficiency of service.
On the basis of the aforesaid averment, the Complainant has filed the instant case for proper relief.
The OP has filed written version denying all material allegations contending inter-alia that the instant petition is not maintainable in law. The Complainant has no cause of action to file this case and the Complainant has filed this case for illegal gain.
Specific case of the OP is that he is a reputed Surgeon having Master Degree and practicing at Cooch Behar with unblemished carrier. It is admitted by the OP that the Complainant attended his chamber with a history of swelling on her left breast and bleeding piles on 28.09.15 and on careful examination, he detected “Fibroadenoma” and Piles and advised blood test for TCDC, ESR, HB,R.B.S,Group,RH,VDRL,HIV and chest x-ray (P.A. view). The patient was advised operation of “FIBROADENOMA”. FNAC was done from the side of the operation for “BIOPSY Test” from Serum Analysis Centre, Kolkata. The Complainant was discharged on the same date with proper advice to take medicine as per prescription and to meet after 4/5 days as the operation was successful. It is further alleged that the Complainant again came to his chamber on 02.10.15 and she never reported any history of complication or discomfort from the side of the operation and then OP prescribed some medicines with an advice to report after five days. The Complainant only paid Rs.2500/- for operation. The Complainant again visited on 11.10.15 and she did not complain as regards to her operation of “ FIBROADENOMA” and her piles was operated on 11.10.15 and her operation was uneventful one and was discharged on the same day after prescribing some medicines alongwith an advice to report after five days and the Complainant paid him Rs.2500/-. It is also alleged that the patient again visited his chamber on 17.10.15 and her operation side was examined and found no complication. Doctor prescribed some medicines with an advice to report after 10 days. Complainant paid visit at the chamber of the OP on 28.10.2015 and 04.11.2015 and the patient was examined clinically and prescribed medicines accordingly. No BIOPSY report was reached till 04.11.15 but patient party received the report which revealed from the prescription of Dr. Shymal Chatterjee. After 04.11.15 Ambia Bibi never visited his chamber.
Further case of the OP is that he did two operations in the person of Ambia Bibi and he performed the said operations carefully and he had no negligence and all the allegations were baseless. As per prescription of Dr. Shyamal Chatterjee and BIOPSY report “FIBROADENOMA” is a benign category which is not at all a “carcinoma” FNAC report expressed possibilities of (1) low grade lobular carcinoma (2) Atypical Ductal Hyperplasia. The USG report suggested small haterogenius solid (Sol) in lateral quardrent of the left breast with advice for clinical co-relation and on the basis of the report Dr. Chatterjee referred the patient for consultation at a higher centre. According to OP, for such report, he could not be made liable and he had negligence on his part in performing the operations. It is alleged by the OP as regards to the treatment at CMC, Vellore that there was no negligence on his part and she (Complainant) was diagnosed of “FIBROADENOSIS” left breast lump and such type of lump can be occurred even after operation and the OP followed the standard of medical and surgical regulations and he had no deficiency of service. The OP denied all allegations leveled against him. On the basis of the aforesaid facts, the OP prays for dismissal of the case with costs.
In the light of the contention of both the parties, the following points necessarily come up for consideration to reach a just decision.
POINTS FOR CONSIDERATION
1. Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Has the O.P any deficiency in service as alleged by the Complainant and is he liable in any way?
4. Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1.
The Complainant is a patient and the OP is a Doctor. The Complainant came to the OP for her treatment. The OP in his w/v has acknowledged that he treated the patient and performed operation in the left breast of the Complainant in lieu of money. The Complainant paid to the OP (Doctor) for his service. As such, we hold that the Complainant is a consumer as per provision u/s 2(d) of CP Act. This point is thus decided in favour of the Complainant.
Point No.2.
The Complainant and the OP are the residents of Cooch Behar and the chamber of the OP is situated within Cooch Behar town. As such, this Forum has territorial jurisdiction to try this case.
The pecuniary jurisdiction of this Forum is of Rs.20,00,000/- but the claim of the Complainant is much below the prescribed limit. Hence, this Forum has pecuniary jurisdiction to try this case. This point is, therefore, decided in favour of the Complainant.
Point No.3 & 4.
Both the points are taken up together for consideration of discussion as well as the points are related with each other.
Admitted fact is that the Complainant went to the chamber of Dr. N. Mahapatra on 28.09.15 with a history of severe pain on her left breast. On careful examination, he detected “FIBROADENOMA” and piles (Hemorrhoicles) and then OP (Doctor) advised for TCDC, HB, ESR, RBC, Group RH, Hbsag, VDRL, HIV and chest x-ray PA). As per prescription issued by OP, we find that the Doctor advised for such test. But Complainant neither placed the said reports before this Forum nor the OP mentioned the result of said tests in his prescriptions. We have failed to understand as to why the Complainant did not place the said reports before this Forum and the Doctor did not mention the result of the said reports in his prescription while the Complainant came to him for her treatment/operation on the next date i.e. on 29.09.2015.
Admitted fact need not be proved.
It is also the admitted fact that the Complainant came to the OP further on 29.09.2015 and Dr. N. Mahapatra performed the operation on the left breast of the Complainant. According to Dr. N. Mahapatra, the operation was uneventful and FNAC was also done from the side of operation for biopsy test from Serum Analysis Centre, Kolkata. But neither the Complainant nor the OP has placed the said reports before this Forum. We have failed to understand as to why the parties are playing such hide and sick to this case.
From the admission of the OP as well as from the prescriptions, we find that the Complainant visited the chamber of the OP on 02.1015, 11.10.15, 17.10.15, 28.10.15 and 04.11.15. But Doctor (OP) did not mention the details history in his treatment sheets. According to OP, the Complainant never reported any history of complication or discomfort from the side of operation. But the same has not been mentioned in the prescriptions issued by the OP which should have to mention in the prescriptions.
It is evident from the documents (prescription issued by Dr. Shyamal Chatterjee) that the Complainant visited his chamber on 04.11.15, 05.11.15 and 19.11.15. Dr. Shyamal Chatterjee advised for FNAC and USG of both breasts. As per FNAC report, (1) Low grade labular Carcinoma and (2) Atypical ductal hyperplasia were found. In the USG report, small heterogeneous solid Sol in lateral quadrant on left breast and advised for clinical correlations. Dr. Shyamal Chatterjee referred her at higher centre.
Thereafter, the Complainant was taken to Christian Medical College, Vellore in the Department of Endocrine Surgery. As per medical report of the Complainant, a Group of Doctors examined her and diagnosed her “FIBROADENOSIS” on left breast. Treatment was given by left breast lump wide local excision under laryangeal mask airway on 04.01.16. While the Complainant was examined at CMC, Vellore, she had no pain and fever. There is no ground to disbelieve the prescription issued by Dr. Shyamal Chatterjee, FNAC report and USG report conducted on the advice of Dr. Shyamal Chatterjee. Dr. Chatterjee on the basis of the FNAC report, referred the patient at higher centre. A team, consisting of seven Doctors, conducted the treatment of the Complainant, who diagnosed “FIBROADENOSIS” left breast lump and the said “FIBROADENOSIS” was operated at CMC, Vellore on 04.01.16.
Admitted fact is that Dr. N. Mahapatra diagnosed the patient “FIBROADENOSIS” on 28.09.15 on her left breast and the said “FIBROADENOSIS” was operated on 29.09.15. Therefore, it is established that two times excision were done on the left breast of the patient (Complainant). After the excision of “FIBROADENOSIS”, the patient visited the chamber of Dr. N. Mahapatra on 02.1015, 11.10.15, 17.10.15, 28.10.15 and 04.11.15. But there is nothing mentioned in the prescription of Dr. N. Mahapatra as to why she had to visit seven times after the operation of “FIBROADENOSIS”. Complications of the patients have not been mentioned in the prescriptions, which are mandatory.
Ld. Advocate for the OP submits that Dr. N. Mahapatra is a Surgeon having a Master degree and he can do operation. We also admit with the submission of Ld. Advocate for the OP. Ld. Advocate for the OP submits medical literature before this Forum. “FIBROADENOMA” is a term used to describe a broad range of solid, benign breast lesson that commonly effect premenopausal women. It is like a pea or grape. They are usually painless and will often move easily when touched. As per medical literature “FIBROADENOMAS” themselves do not pose any risk of breast cancer developed throughout the breast tissue. As per medical literature, local recurrence of “FIBROADENOSIS” is possible. If one or more “FIBROADENOMA” in the past, then likely to have them again. Therefore, as per medical literature, there is every possibility of local recurrence of “FIBROADENOMA” in the breast. But there is nothing mentioned in the medical literature about the time/period of recurrence.
The first to remove the “FIBROADENOMA” was taken place on 29.09.15. Thereafter, the patient was in the touch of Dr. N. Mahapatra on 02.10.15, 11.10.15, 17.10.15, 28.10.15 and 04.11.15. The patient was treated by Dr. N. Mahapatra on the above mentioned dates and then the patient lost her faith with the treatment of Dr. N. Mahapatra and went to Dr. Shyamal Chatterjee on 04.11.15. Dr. S. Chatterjee after FNAC and USG tests found low grade lobular carcinoma and Atypical ductal hyperplasia and small heterogeneous Solid SOL in lateral quadrant in the left breast. CMC, Vellore also found “FIBROADENOSIS”. Dr. N. Mahapatra did not diagnose that the patient further attacked from “FIBROADENOSIS” for the second time. The patient was within the touch of Dr. N. Mahapatra unless she lost her faith on 04.11.15 and on the same date, he was treated by Dr. S. Chatterjee, who later referred to the Higher Centre.
Dr. N. Mahapatra did the operation of “FIBROADENOSIS” of the patient at his chamber and from the total conduct of the OP, as discussed in the body of the judgment, we have come to a conclusion that he did not operate the “FIBROADENOMA” of the patient (Complainant) properly and for that reason, she had to take second operation for the excision of “FIBROADENOMA” which amounts to medical negligence and deficiency of service.
Ld. Advocate for the OP cites a case decision reported in 2016 (2) CPR 71 (NC), wherein National Commission held that there is a tendency of patients to blame Doctor if there is no care. We do admit with the view of Hon’ble National Commission. But in this case, we find that there was medical negligence of the OP. As such, this case decision is not applicable here.
In another case decision reported in 2016 (4) CPR 42 (Pun), wherein State Commission Punjab held negligence cannot be attributed to a Doctor as long as he performs his duty with reasonable skill and competence. But in this case, the above noted case decision is not applicable on the ground that the negligence of the Doctor is established.
Ld. Advocate for the OP submits that to prove the negligence of the Doctor expert opinion is necessary. 1st operation of “FIBROADENOSIS” on the left breast of the Complainant was done on 29.09.15 at the chamber of the OP but she (Complainant) was not cured, which was revealed from the prescription of Dr. Shyamal Chatterjee. As per prescription of Dr. Shyamal Chatterjee and FNAC and USG reports, the patient suffered (1) Low grade labular Carcinoma and (2) Atypical ductal hyperplasia. As per USG report, one small (14.1 mm X 7.1 mm X 12.7 m hypoechoic heterogeneous solid ( SOL ) was seen in the lateral quadrant of left breast. As per Diagonosis - “FIBROADENOSIS” left breast. Therefore, as per FNAC and USG reorts and as per diagnosis the patient was suffering from “FIBROADENOSIS”. There is nothing placed before us that the patient was attacked with “FIBROADENOSIS” for the 2nd time and there is a chance of such attack for the 2nd time even after the operation of “FIBROADENOSIS” for the 2nd time. There is nothing in the prescriptions issued by the OP dated 02.1015, 11.10.15, 17.10.15, 28.10.15 and 04.11.15 that the patient was attacked with “FIBROADENOSIS” for the 2nd time after the operation. Therefore, the negligence of the OP is duly established.
In a case reported in 2010 (2) RCR (Civil) 929 (SC) held “Medical negligence of the petitioner cannot be rejected only on the ground of expert witness to prove the ne gligence of the Doctor. It is not required to have expert evidence in all cases of medical negligence.”
Both the points are decided in favour of the Complainant.
Hence,
Ordered,
That the present complaint be and the same is allowed on contest with cost of Rs.5000/-. The OP is hereby directed to pay Rs.50,000/-for medical negligence and deficiency of service, Rs.63,735/- for Nursing Home charges and Rs.10,000/- for miscellaneous expenditure to the Complainant.
The OP is further directed to pay Rs.10,000/- to the Complainant for causing mental pain and agony.
The OP is also directed to pay the aforesaid sum within 45 days from this day, failing which the OP shall have to pay Rs.25/- for each day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
Dictated and corrected by me.
