IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.

                                  CASE No.CC/86/09

Date of Filing:    27/05/09                                    Date of Final Order: 06/12/18

Complainant:  Guljar Sk

S/O Lt. Mihir Sk.

Vill. Chapghati Munsipara

P.S.-Suti, Dist-Murshidabad

                                 -Vs-

Opposite Party: 1) Dr. Nirup Biswas, Medical Officer

                 Jangipur Sub-Divisional Hospital

                 P.O.&P.S.-Raghunathganj

                 Dist-Murshidabad

                         2) Proprietor,

                 Sathi Nursing Home, Raghunathganj,

                 Garighat, P.O.&P.S.-Raghunathganj

                 Dist-Murshidabad

Agent/Advocate for the Complainant   : Sri Prabir Banerjee

Agent/Advocate for the Opposite Party Nos. 1&2: Sri Siddhartha Sankar Dhar

Present:   Sri Asish  Kumar Senapati…………………..........President.                              

    Smt. Aloka Bandhopadhyay..…………………….................Member.

                               FINAL ORDER

ASISH KUMAR SENAPATI, PRESIDING MEMBER.

This is a complaint under section 12 of the CP Act, 1986.

One Guljar Sk. (here in after referred to as the Complainant) filed the case against Dr. Nirup Biswas and the Proprietor, Sathi Nursing home (here in after referred to as the OPs) praying for compensation, alleging deficiency in service.

The sum and substance of the complaint case is as follows:-

The Complainant is a resident of Chapghati, Munsipara under Suti P.S. within jurisdiction of this District Forum and the OP No.1 is a Medical Officer of Jangipore SD Hospital and the Proprietor of the OP No.2. Sajeda Bibi, wife of the Complainant, felt pain in her abdomen on 01.02.09 and she was consulted by the OP No.1 at his chamber on payment of requisite fees. As per advice of the OP No.1, Sajeda Bibi admitted at the OP No.2 Nursing Home on 02.02.09 and a tumor was detected. The OP No.1 performed the operation but there was no relief from her pain. The patient was discharged on 08.02.09 by the OP No.2 on payment of entire dues. As the pain of Sajeda Bibi, in her abdomen was not relived she was admitted at Jangipore SD Hospital and ultimately referred to Kolkata Medical College and Hospital for treatment. Subsequently, the patient was taken to SSKM Hospital and she was consulted at Gynecology Department and Surgical Department. The Doctors on examination found present of Krukenberg tumour on 11.02.09.  On 05.03.09, the patient was referred to tumor board and the board opined that further operation was not possible due to negligence and carelessness of OP No.1, the patient had already an attack of Cancer because the OP No.1 did not operate the place where operation was needed but operation was performed in the place where no operation at all required and as a result, due to infection ,the patient had become victim of Cancer. Ultimately, Sajeda Bibi died on 16.04.09 due to negligence and deficiency in service. The Complainant prayed for compensation of Rs.6,00,000/- for loss of life of Sajeda Bibi, compensation of Rs.50,000/- for mental pain and agony and cost of litigation.

The OP No.1 contested the case by filing written version on 22.01.10 inter alia denying the materials allegations ,contending, that the OP No.1 examined patient and found doughy feeling in whole abdomen and on the basis of USG report, he decided to operate the patient for removal of ovarian tumor/cyst. After taking consent from the patient party, the OP No.1 opened the abdomen of the patient by right par median incision to explore the lower abdomen and found tubercular lesion scattered in lower abdomen over omen tam peritoneaumgut, overian and uterus. A portion of greater omen tam and T.O. mass removed and thereby closed the abdomen. The Patient Party took tissues and right overian mass for Histopatholical examination. The samples were sent to the laboratory through the patient party for histopatholical test but the patient never came to the OP No.1 with report. The post operative care was taken and improvement of the patient was satisfactory. The operation was successful and there were no complications after operations. There was no deficiency in service on the part of the OP No.1 and there was no carelessness of negligence on the part of OP No.1. The patient was released from Nursing Home on 07.02.17 after recovery and the Cancer cannot be result of the operation. The OP No.1 prayed for dismissal of the complaint.

The OP No.2 contested the case by filing written version on 22.01.10 inter alia denying the material allegations, contending that the OP had no negligence in treating the patient and the patient was released from the Nursing Home after recovery and there was no negligence and deficiency in service on the part of OP No.2.

Upon the above versions, following points are framed for proper adjudication of the case :

Points for Consideration

1. Is the Complainant a consumer/Complainant as per provisions of the CP Act, 1986?

2. Has this Forum jurisdiction to entertain the complaint?

3. Have the OPs any deficiency in service, as alleged?

4. Is the Complainant entitled to get any relief, as prayed for?

Point No.1

The Ld. Advocate for the Complainant submits that the Complainant is the beneficiary and legal representative of his wife, Sajeda Bibi, since diseased who hired the services of the OPs for her treatment.

 In reply the Ld. Advocate for the OPs submits that the Complainant is not a consumer.

Perused the written complaint, written version, evidence and documents submitted by both sides. On a careful consideration, we find that one Sajeda Bibi, wife of the Complainant was under treatment of OP No.1 at  OP No.2 and he hired the services of the OPs.

Admittedly OP Sajeda Bibi, wife of the Complainant, expired on 16.04.09 and the present Complainant is the beneficiary and legal representative of Sajeda Bibi. Hence it is held that the present Complainant is entitled to file complaint as legal heir/representative of his wife Sajeda Bibi, since diseased.

Point No.2

            The Ld. Advocate for the Complainant submits that the cause of action arose at Sathi Nursing home at Raghunathganj within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum.

The Ld. Advocate for the OPs has not stated anything on this point.

On going through the materials on record, we find that the cause of action arose within territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum. Hence, this point is answered in favour of the Complainant.

Point Nos. 3&4

     The Ld. Advocate for the Complainant submits that Sajeda Bibi,wife of the complainant, went to the OP No.1 at his chamber on 01.02.09 for consultation as she felt heavy pain in her abdomen and as per advice of the OP No.1, she was admitted at OP No.2 Nursing home on 02.02.09. It is argued that the ultrasonography of Sajeda Bibi dated 01.02.09 suggested that there was a tumor in the abdomen and in spite of operation by the OP No.1 and OP No.2 Nursing home, her pain was not relived and she had to take admission at Jangipore Hospital and she was taken to SSKM Hospital, Kolkata where the presence Krukenberg tumor was detected after examination and ultimately Sajeda Bibi had an attack of cancer and died on 16.04.09 due to negligence and carelessness of the OP No.1. He argues that the Complainant has been examined as PW1 and one Najrul Islam, brother of Sajeda Bibi was also examined and both of them proved deficiency in service on the part of the OP No.1. It is urged that the OP No.1 did not perform his duty properly , resulting her admission at Jangipore Hospital and subsequently at SSKM Hospital, Kolkata on 11.02.09 and therefore it can be safely presumed that Krukenberg tumor cannot be formed within 7 days after operation and as there was no such tumor on the date of operation by the OP No.1. It is contended that the Complainant is the unfortunate  husband of the victim Sajeda Bibi and Sajeda Bibi died of cancer due to negligence on the part of the OP No.1. He prays for adequate compensation for deficiency in service and negligence on the part of the OP No.1.

  In reply, the Ld. Advocate for the OP No. 1 submits that Sajeda Bibi came to the OP No.1 and she was advised for operation and accordingly she admitted at OP No.2 husband on 02.02.09. He submits that USG  of Sajeda Bibi was done on 01.02.09 as per advice of Dr.S.M.H.NAWAZ and a tumor was detected and at the time of operation, it was found no operation could be done on the upper portion of the right side abdomen so Sajeda Bibi was discharged on 08.02.09. It was further argued that the patient was admitted at Jangipore SD Hospital as her pain was not relived and Jangipore SD Hospital referred the patient to Kolkata Medical College for better treatment and the patient was taken to SSKM Hospital as per statement of the Complainant. It was contended that the OP No.1 examined the patient and on the basis of USG report decided to operate the Tumor/Cyst after taking consent of the party. It was submitted that the OP No.1 removed a portion of greater Omentam and T.O.Mass and thereby closed the abdomen and took tissues from Omentam and right overian mass for Histopathological Test and the samples were sent to the Laboratory through the patient party. He argues that the OP No.1 prescribed medicine after operation and there was no negligence and carelessness on his part and the patient was discharged from the Nursing Home on 07.02.09. He contends that the other Doctors who treated the patient never opined that the death of Sajeda Bibi was due to negligence of the OP No.1 and the Complainant stated in his evidence  that he has no document to show that Doctors of SSKM Hospital made adverse opinion against the OP No.1. It is contended that the OP No.1 has no negligence or deficiency in service and the Complainant is not entitled to get any compensation. He draws our attention to a number of decisions reported in III (2016) CPJ 379(NC),II (2007) CPJ 235(NC),II (2014) CPJ 42(NC).

  The Ld. Advocate for the OP No.2 submits that the Complainant has not stated anything against the OP No.2 alleging deficiency in service and the OP No.2 only provided the facility for operation and stay of the patient Sajeda Bibi in his Nursing Home as per advice of the OP No.1. It is urged that the OP No.2 has no deficiency in service or negligence.

           In reply, the Ld. Advocate for the Complainant submits that the decisions referred by the Ld. Advocate for the OP No.1 are not at all applicable in the present case as the OP No.1 did not take pre or post operative care, resulting which Krukenberg Tumour was formed. He argues that the OP No.1 might advice the patient for FNAC Test before operation so that the germ of Cancer could not be spread out. It is urged that the death of Sajeda Bibi was due to deficiency in service and negligence on the part of the OP No.1.

   We have gone through the written complaint, written version, evidence adduced by both parties and the documents filed by the Complainant and the decisions referred by the Ld. Advocate for the OP No.1.

Admittedly, one Sajeda Bibi came to the chamber of OP No.1 on 01.02.09 (Annex-1) along with the Ultrasonography report dated 01.02.09 issued by the Doctor N.C.Das of OTHERLAND SCAN CENTRE referred by Doctor S.M.H.Nawaj and as per Ultrasonography report a Hypoechole solid mass 70x 50mm in size seen in right adnexae. Admittedly, Sajeda Bibi was admitted at Sathi Nursing Home on 02.02.09 and she was treated at Sathi Nursing Home from 02.02.09 to 08.02.09 though she was discharged on 07.02.09.  Sajeda Bibi gave her consent for operation and the Complainant took Sajeda Bibi in good condition on 07.02.09 as per Annexture-C submitted by the OP No.2.  t is the case of the Complainant that the Doctors at SSKM Hospital treated the patient and found Krukenberg Tumour on 05.03.09. As per report of SERUM dated 11.02.09 (Annex-6) Krukenberg’s Tumor was found. Sajeda Bibi was an indoor patient at SSKM from 19.03.09 to 28.03.09 (annex.17). During the period she was examined by a number of Doctors and Krukenberg Tumour was detected and she was discharged on 28.03.09 with some advice (Annex-17) but ultimately she died on 16.04.09 (Annex-18). On going through the documents filed by the Complainant, we find that none of the Doctors/Experts has opined that formation of Krukenberg in the abdomen of Sajeda Bibi was due to negligence on the part of the OP No.1. The Complainant has not sought for any expert opinion to ascertain as to whether death of Sajeda Bibi was due to negligence on the part of the OP No.1. The Ld. Advocate for the OP No.1 has referred a number of decisions.

 It has been held in the decisions reported in III (2016) CPJ 379(NC) that “Doctor cannot be held negligent simply because something went wrong. He will not be liable for mischance or misadventure, or for an error of judgment. He will not be also liable for taking one choice of treatment, out of two or for favoring one school rather than another. Principle of res ipsa loquitur will not apply”. He also refers a decision reported in II (2007) CPJ 235 (NC) decided by the Hon’ble National Commission where it is held that “no expert evidence produced by Complainant for alleged negligence. Owners lies on Complainant to  prove the  same”.

He also refers a decision reported in II (2014) CPJ 42(NC) where in it is held that “death of patient was neither due to wrong surgery not any delay in reference to cancer hospital. Condition of patient deteriorated as she developed malignant ascites. As per medical literature the prognosis in such a case will be extremely poor and very remote chance of survival for 1-2 months. Surgery was performed by qualified surgeon. Specimen was sent to HPE examination and after confirmed diagnosis of malignancy (cancer), patient was referred to cancer hospital. This is a standard medical practice and no negligence”.

He also refers another decision reported in IV (2012)CPJ 194(NC) where in it is held that “Respondent is a well-qualified orthopedic doctor had after due consideration including proper diagnosis and using his best professional judgment conducted a conservative surgery which involved fitting the screws and plating which in a majority of cases result in union of bone joints. Second surgery was conducted at Safdarjung Hospital. Discharge summary does not state any wrong treatment or negligence during first surgery. Impugned order upheld”.

With due regard to the decisions as referred by the Ld. Advocate for OP No.1, we think that those decisions are very much applicable in the present case. In the present case, the Complainant has not sought for any expert opinion to ascertain as to whether the death of Sajeda Bibi was due to deficiency in service or negligence on the part of the OP No.1. It appears from the materials on record that the patient was treated by the OP No.1 upto 08.02.09 and a portion of greater Omentum and T.O.Mass was removed and handed over to the patient party on 02.02.09 for Histopathological examination and the patient never came to the OP No.1 for his advice after getting the report of  histopathological examination. It is also not the case of the Complainant that the OP No.1 did not refer the patient to any Oncologist even after his knowledge that Sajeda Bibi was suffering from cancer. It is unfortunate that Sajeda Bibi, wife of the Complainant died on 16.04.09 and her cause of death has also not been mentioned in the death certificate (Annex-18). It may be a fact that Sajeda Bibi died of cancer but it has not been established that there is any deficiency in service or negligence on the part of the OP No.1 for rendering  his service till 08.02.09. We find that the Complainant has not been able to establish that there is any deficiency in service or negligence on the part of the OP No.1 or 2. Hence, we hold that the Complainant is not entitled to get any relief. Both points are disposed of accordingly.

Reasons for delay

The Case was filed and admitted on 27.05.2009 . The OPs contested the case by filing W.V. on 22.01.10. This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.

In the result the Complaint case fails

Fees paid are correct. Hence, it is

                                         Ordered

             that the complaint case No. CC/86/2009 be and the same is dismissed on contest against the OPs without any order as to cost.

                              Let plain copy of this order  be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand  /by post under proper acknowledgment  as per rules, for information and necessary action.

                            The Final Order will also be available in the following Website:

             confonet.nic.in

Dictated & corrected by me.

      President.                        

Member                                                                                               President.