SMT. BANDANA ROY, PRESIDENT
The gist of the complaint case is that on 25.08.2016 the complainant took his pregnant wife Saharun Bibi to the chamber of the OP who was a gynecologist, for regular check up. The doctor examined the patient but without having any test of any kind, diagnosed that she should immediately be admitted for abortion otherwise life of the patient would be in danger. Being a lay man the complainant had to obey the ruling of the doctor and he admitted his wife in the private chamber of the OP who caused abortion of his wife in a most unhygienic and negligent manner without any assistance of nurse or medical assistant. The OP released the patient prescribing some medicines although she was suffering from acute pain in her lower abdomen and vagina. In the same night when the patient was suffering seriously, the complainant got her admitted in Tamluk District Hospital. Her condition became deteriorated gradually and on the next day i.e. on 26.08.16 she was referred to NRS Medical College and Hospital where she expired on 31.08.2016 at 6.45 am, due to septicemia in a post-operative perforative peritonitis. According to the complainant his wife died due to fatal and gross negligence of the OP and deficiency in rendering service to the patient.
Due to such death of his wife the complainant lodged GDE No. 3283 dated 31.08.2016 at Entally PS and subsequently an FIR was lodged by the complainant at Mahisadal PS wherein the accused doctor got court bail. As such, for the unfortunate death of his wife at the age of 25 years, the complainant has filed this complaint prying for a compensation of Rs. 19,90,000/- from the OP and other reliefs.
The OP appeared and contested the case by filing written version and denied all the material allegations of the complaint and prayed for dismissal of the complaint on various grounds inter alia that this doctor is not involved with the death of the patient or he had any connection with this patient.
The averment of the WV is that due to grudge out of a previous enmity with one relative of the complainant namely Mafijul Islam of village Kumarara with the OP doctor, the complainant has filed the case. A few years ago there was a communal dispute regarding a cremation ground and Kabarsthan wherein the complainant along with the Muslim community of the area was a party and the doctor and other Hindu members of the village was a party claiming the ground to be a cremation ground. Said dispute was compromised at the intervention of the administrative authority but still then some persons are trying to take revenge upon the Hindu community centering this OP doctor.
Under the above circumstances, the OP prays for dismissal of the claim of the complainant.
Point to be considered in this case is whether the case is maintainable and (2) whether Complainant is entitled to the relief(s) sought for by the complainant.
Decision with reasons
The first issue on maintainability of the complaint has already been disposed of in favor of the complainant. So, this issue needs no discussion any more.
We have carefully perused the affidavit of the complainant, the written version. and all the documents filed by the complainant, the questionnaires filed by the OP and the reply thereto submitted by the complainant and heard the submission of the ld advocate for the complainant.
The complainant has filed copy of FIR, copy of death certificate of his wife, copy of death discharge report of the victim and copy of prescription issued by the OP doctor and also the post mortem report held upon the dead body of wife of the complainant.
In this case the OP denied the statements of the complaint in para 5 thereof that being a common man the complainant had to obey the advice of the doctor and accordingly his wife was aborted by the OP in his chamber against the will the complainant alone in a most unhygienic and negligent manner without any nurse or medical assistance or advised the complainant to take the patient at home by prescribing some medicine though the general condition of the patient was not at all good or there was several pain in lower abdomen and vagina. He also denied of his knowledge of deterioration of the patient and she was referred to NRS Medical College and Hospital on 26.08.2016 or she expired there on 31.08.16 at 6.45 AM due to septicemia in a post operative perforative peritonifis. OP stated that he is attached with Basulia Rural Hospital at Community Health Guide (CHG) and have got certificate as he participated in the University Tal Aids, symposium on HIV-AIDS /STD and Health Life style Education organized by NSS Department and his chamber is used for the health guidance only. He never did any work of abortion or he has any chamber for abortion at any time. He only admitted that the complainant once came to him for check up of his pregnant wife and prescribed some medicine and advised them to take steps for proper treatment by an experienced doctor. Thereafter he came to know from the FIR lodged by the complainant against him alleging false allegation and he for anticipatory bail from the court of ld District & Sessions Judge, Purba Medinipur at Tamluk. A criminal case U/Sec 313/304 IPC is pending before the ld court of ACJM Haldia. He also replied to the legal notice of the ld advocate for the complainant. He further stated that a few years ago there was a communal disturbance in the area where the complainant along with other members of Muslim community and the Hindu members of the area were involved in a dispute over a land claiming it to be cremation ground or Kabarsthan of Muslims. The complainant has filed this case out of grudge of that previous enmity being guided by his relatives.
It appears that the OP has not challenged the prescription under the letter head pad of Dr. P. Maity dated 25.08.2016 and it appears that some medicines were prescribed to wife of the complainant. It appears from the GD entry No. 3283 dated 31.08.2016 that patient was admitted on 26.08.2016 at 15.38rs and expired on 31.08.2016 and brought dead to NRS Hospital. From the death certificate produced by the complainant it appears that wife of the complainant was admitted to the hospital on 26.08.16 at 15.38hrs and expired on 31.08.2016 at 645 PM due to septicemia in a post operative perforative peritonifis. Cause of death to be determined by Medico Legal Autopsy. From the post mortem report filed by the complainant it reveals that death was due to the effects of absorption from infected peritonitis with evidence of surgical intervene which was Ante mortem in nature. Further opinion if any to be given after receipt of chemical examiner’s report.
The complainant filed affidavit in chief and the OP also put questionnaires .
The following are the excerpts of the question and answers of the parties.
Question No. 1 whether there is any document in respect of regular check up of Saharun Bibi by the OP on 25.08.15 . The complainant answered that he took his wife to the OP for regular check up on 25.08.16. Question no. 2 whether there is any document of abortion ? Ans. Yes it has been filed. Question no. 3 . whether there is any document to ascertain death of wife of the complainant. Ans. Yes, document is there. Question no. 4 Whether there is any Post Mortem Report to ascertain the cause of death ? Ans. Post mortem was not done by the authority concerned, however there are sufficient medical documents and proofs for ascertaining the cause of death. Question no. 5 whether the dead body was handed over without PM or not ? Ans. Yes. Question No. 5 whether local PS started any criminal case against the OP after receiving the information from Entally PS at Kolkata ? Ans. Yes, the case no 354/17 dated 19.-09.2016 U/Sec 304/313 IPC was started at Mahisadal PS. Whether Police took any initiative for enquiry oif cause of death on receipt of information from Entally Police. Answer : As the process and activity of police during investigation is completely out of purview of me or anybody else, this question is
irrelevant. Question No. 8 whether any information was made before the local police or anywhere about the allegation of abortion between the period of 215.087.16 and 19.09.16 ? The Answer was “Yes police authority of Entally PS at Kolkata was informed. Question no. 11 Whether there is any document about report of the Mahisadal PS or Entally PS ? The answer was ‘’Certainly not. And it is also not possible to have any such document in the custody of me in any way.”
It appears that both the parties admitted that the OP is not a doctor but in the prescription he has been introduced as Dr. P. Maity, that he is a BA CHG (WB), Alopath, consultant of female disease and family planning.
Seen the prescription issued by the OP filed by the complainant to prove involvement of the OP in the abortion which resulted death of wife of the complainant. The OP has not challenged the prescription issued by him. On a close scrutiny of the letter head pad of the Dr. P Maity it is seen that he is a BA CHG (WB), Alopath, consultant of female disease and family planning. The doctor sits at his chamber below the Choto Pul at Mahisadal Hospital Morh from 7 AM to 8 PM.; Chamber is opened everyday. Some medicines have been prescribed by the doctor/OP for the treatment of patient Sabarun Bibi on dated 25.08.2016.
From the copy of charge sheet filed by the complainant it appears that it has been filed against the OP U/Sec. 313/304 IPC by Mahisadal PS and from on a close scrutiny of the charge sheet it appears that prima facie charge U/Sec 313/304 has been well established against the OP. Police has stated in the charge sheet that complainant’s wife did not agree for her abortion. In this situation the doctor forcefully aborted her against her will. After abortion she felt unwell and on the same day at night she was shifted to Purba Medinipur District Hospital for treatment. Next day on 26.08.16 she was taken to NRS Hospital at Kolkata where she expired on 31.08.2016.
A pregnant woman facing the most dire circumstances must be able to count on her doctor to do what is medically necessary to protect her from serious physical harm., It appears that the OP could not disprove that he gave medicine to wife of the complainant . From the documents filed by the complainant it is not clearly established that abortion was done on her by the OP but other documents i.e death certificate shows that she died out of septicemia in a post operative perforative peritonifis. This septicemia can be caused by abortion . It is also not denied that the wife of the complainant died within a short period of examining the patient by the OP doctor.
We have also heard the argument of ld lawyers of both sides and came to the conclusion that the OP operated wife of the complainant on 25.08.16 and as a result she suffered from septicemia and died within a week.
If it is taken as granted that the OP is not a medical person according to the OP, then why the OP prescribed medicine to wife of the complainant is not understood. Preservation of a woman’s life is of paramount importance . Right of life enshrined in Article 21 of the Constitution of India includes right of health. Article 21 of the Constitution of India casts an obligation on State and Medical Professionals for preserving life.
In the present case the person prescribing medicine is not at all a doctor but uses a Decree of “Dr” before his name in the prescription and in this way he misrepresented himself as a doctor before the ordinary people. The post mortem report says - death was due to the effects of absorption from infected peritonitis with evidence of surgical intervene which was Ante mortem in nature. Further opinion if any to be given after receipt of chemical examiner’s report. Death certificate also suggest that the patient . Although complainant could not prove that the present doctor did the abort, but the prescription, the report of NRS Hospital and also the post mortem report suggest that it is none else but the OP doctor who illegally operated the patient and as a result there was internal septic and consequently she died. Post mortem also suggest reason of her death out of septicemia which report has not been challenged by the OP.
For the reasons above we hold that the OP is guilty of medical indiscipline and negligence as not being a doctor he prescribed medicine to a pregnant woman and took the risk of abortion of the patient. Surprisingly the complainant also should not come to the chamber of the OP for examining her wife because the introduction in the pad or anywhere else does not necessary suggest the fact that the OP was not a doctor.
The OP took a plea that out of a precious communal grudge, the complainant has filed this complaint against the doctor who was a member of the Hindu community of the area. But in the fore corner of the record we cannot find any document in support of that assertion of the OP which can give him relief from this complaint.
The complainant has prayed for a sum of Rs. 19,9000/- as compensation and other reliefs.
However after perusal the materials on record we holds that the OP fails to show that he was a skilled doctor and so, he should pay some compensation to the complainant for the death of his wife.
Hence, it is
O R D E R E D
That CC/162 of 2017 be and the same is allowed on contest against the OP but in part.
The OP is directed to pay the complainant a sum of Rs. 3,00,000/- to the complainant as compensation for death of his wife at the age of 25 years and Rs. 5000/- as litigation cost within four weeks henceforth failing which the complainant will be entitled to get 9% interest per annum on the awarded amount till realization of the same from the OP.
Let copy of the judgment be supplied to all the parties free of cost.
