West Bengal

Bankura

CC/52/2018

Debiprasad Sarkar - Complainant(s)

Versus

Dr. Rajkumar Singha - Opp.Party(s)

Self

22 Feb 2023

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION BANKURA

Consumer  Complaint  No. 52/2018

Date of Filing : 14-08-2018

Before:

1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                          Ld. Member. 

3. Siddhartha Sankar Bhui            Ld. Member.

For the Complainant:Self 

For the O.P. Ld Advocate Sri Banamali Chowdhury

Complainant   

Debiprasad Sarkar, Self Address:- C/o- Manojit Sarkar, Vill-Danna, P.O.+ P.S.-  

Patrasayer, Dist- Bankura, Pin- 722206.(W.B.)

Opposite Party                                 

1.Dr. Rajkumar Singha Mahapatra, M.S(Surg), Mch(Uro), of C/o- Bankura Seva Niketan Hospital, Patpur, (Jail Road), Bankura, P.O. P.S. & Dist. Bankura, Pin- 722101.

2.Bankura Seva Niketan Hospital Authority of Patpur, (Jail Road), Bankura, Pin- 722101.       

 

JUDGEMENT 

Dated:22-02-2023

The complainant’s case is that his father Manojit Sarkar aged about 73 years has been suffering from prostate ailments and he was taken to O.P. No.2 / Bankura Seva Niketan Hospital on 23-03-2018 for his treatment and he was examined by O.P. No.1 / Dr. Raj Kumar Singha Mahapatra attached to O.P. No.2 on 25-03-2018 who advised admission on Wednesday i.e. on 28-03-2018 by prescription  but the patient was not admitted on 28-03-2018 in O.P. No.2 Hospital and as per resolution of District Nodal Officer, Swastha Sathi, Bankura dated: 27-04-2018 O.P. No.2 was directed to pursue Medical check up and start the process of further treatment of the patient Shri Manojit Sarkar on 29-04-2018.

The patient as usual came to be medically treated at O.P. No.2 Hospital on    29-04-2018 and on that date said O.P. No.1 examined him by prescription and advised for operation at Bankura Sammilani Medical College & Hospital (BSMCH) where he has already been evaluated and on the other hand he was also advised by referring to Dr. Jitendranath Banerjee, one of the Partner of O.P. No.2 Hospital for arrangement of pre-anaesthatic check up and arrangement of Urology team for operation if fit for surgery. Accordingly Dr. Amalendu Chatterjee, Anaesthetist, attached to O.P. No.2 Hospital after examination of the patient on the same day i.e. 29-04-2018 advised treatment in any Medical College Hospital otherwise the safety of the patient cannot be ensured. Thus the patient was refused admission in O.P. No.2 Hospital.

                                                                                                                                                                                               Contd…..p/2

Page: 2

The matter was again brought to the notice of District Nodal Officer, Swastha Swathi Cell, Bankura who by letter dated: 03-05-2018 sought explanation from O.P. No.2 Hospital regarding delay of about one month in rendering proper treatment to the patient.

Finding the condition critical and deteriorating the patient was removed to Dr. Sanjoy Das, Khosbagan, Burdwan to save his life.

Thereafter the complainant has filed the instant complaint against O.P. No.1 & 2 claiming adequate compensation for deficiency in service on their part.

Both O.P. No.1 & 2 contested the case by filing separate written version denying all the material allegations made in the complaint and their common defence cases is that the patient was not refused admission in O.P. No.2 hospital as per advice of   O.P. No.1 and Dr. J.N. Banerjee, attached to O.P. No.2 but he was advised for admission and treatment in other advanced Medical Hospital for safety of life of the patient.

Having regard to the facts of the case, submission and contentions on both sides and materials on record the Commission finds that it is a case of refusal of admission and rendering proper and necessary medical care and service to the emergency patient. On this issue all the relevant documents as referred to above have been produced by the complainant and the Ld. Advocate appearing for O.P. No.1 & 2 has advanced argument by referring to the achievement of the O.P. No.2 hospital and the reputation of O.P. No.1 to dilute the grievance of the complainant without focussing on the vital point as to the actual ground of refusal of admission.

No evidence is forthcoming and no averment has been made in the written version whether at the relevant time O.P. No.2 hospital was lacking infrastructure in providing treatment and surgery on prostate ailments. No excuse is acceptable in this case for refusal of admission and treatment in a prostate case save and except lack of infrastructure. No explanation is forthcoming from the defence side as to what prevented the O.P.s to undertake treatment and surgery of the patient without unnecessary delay. It is unfortunate that when the condition of the patient became critical and his life was at stake for want of proper medical treatment at that time O.P.s advised referring the patient for such operation and treatment in other Medical hospital.

                                                                                                                                                                                           Contd…..p/3

Page: 3

Now the pertinent question is whether such refusal of admission and rendering proper treatment will amount to deficiency of service within the meaning of Consumer Protection Act.

In this connection the Commission likes to refer to the case of  Dr. Laxman Balakrishna Joshi v. Trimback Bapu Godbola, A.I.R. 1969 S.C. 128 where it was laid down that when a doctor is consulted by a patient the doctor owes to his patient certain duties, viz.,(a) a duty of care in deciding whether to undertake the case, (b) a duty of care in deciding what treatment to give and (c) a duty of care in the administration of that treatment. A breach of any of those duties may give a cause of action for negligence to the patient and the patient may on that basis recover damages from his doctor.

It is therefore clear from the above judicial pronouncement of the Hon’ble Supreme Court that lack of care in deciding whether to undertake the case for treatment is also a medical negligence. In other words it can be said that refusal of admission of a patient requiring urgent treatment is a medical negligence in Category (a) as enunciated in above Supreme Court decision.

Refusal of admission of patient may be on two grounds: either due to lack of infrastructure or not permissible with Swastha Sathi Scheme as introduced recently by the Government of West Bengal. Prostate ailment is covered under Swastha Sathi Scheme and the patient is the beneficiary of the said scheme which is evident from the action taken by the District Nodal Officer, Swastha Sathi Cell, Bankura as referred to above.

There is no material on record to show that the Swastha Sathi  Card relating to the treatment of the patient Manojit Sarkar is otherwise not valid and acceptable for treatment of prostate ailment. Refusal of admission of patient under Swastha Sathi scheme also amounts to medical negligence and the O.P. party cannot justify the same by citing any other reason.

Now coming to the point of infrastructures for treatment of prostate ailments in the O.P. No.2 hospital the Commission finds no iota of evidence that the O.P. No.2 hospital has no infrastructure for treatment of such patient and that experienced doctor for treatment of such patient is not available. O.P. No.1 attached to O.P. No.2 hospital is a Master of surgery and a specialist on Urology and as such O.P. No.1 has skill and expertise to handle such type of patient.

                                                                                                                                                                                   Contd…..p/4

Page: 4

Referring such critical patient for treatment in other Medical College by O.P. No.1 in spite of available infrastructure and specialist doctor on the plea of better treatment is a malpractice in medical profession either to avoid treatment of emergency patient or to black mail the patient for maximum gain.

Under the definition Clause of deficiency in Section 2 (11) of Consumer Protection Act, 2019 deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer.

The definition of deficiency as referred to above under the Consumer Protection Act also includes an act of omission causing loss and injury to the consumer. Refusal of admission of patient is an act of omission and therefore it is a deficiency of service on the part of both the Hospital authority and the concerned doctor.

Ld. Advocate appearing for the O.P.s has drawn attention of the Commission to the fact that the patient was earlier treated by other doctors in other Hospital before he came to the O.P.s and the nature of the patient is to blame the Hospital and doctor by suppressing the earlier treatment. His further contention is that as he has not been admitted as in-patient the O.P. Hospital and Doctor has no liability of medical negligence therein.

But as stated above in view of the decision of the Apex Court refusal of admission is also an act of medical negligence and it is also an act of omission within the definition clause of deficiency in Section 2 (11) of Consumer Protection Act, 2019 even if the patient is not admitted in the hospital as in-patient.

Ld. Advocate for the O.P. has highlighted the overall achievement of the O.P. 2 Hospital by citing a number of treatment under Swastha Sathi scheme but it does not absolve any of the O.P.s of their refusal of admission of the patient which is  entrusted upon them under the law and medical ethics.

                                                                                                                                                                                          Contd…..p/5

Page: 5

Thus considering the nature and gravity of the case the Commission is of the view that both O.P.s are liable to compensate the complainant for their composite negligence and omission in providing proper and necessary treatment for recovery of the patient and the Commission quantifies the compensation at Rs.1 Lakh payable by the O.P. No.1 and 2 jointly or severally to the victim patient i.e. Manojit Sarkar if alive otherwise to the complainant.

The case therefore succeeds.

Hence it is ordered…….

That the case is allowed on contest against both O.P.s.

O.P. No.1 and O.P. No.2 are directed to jointly or severally pay Rs.1 Lakh to the victim patient Manojit Sarkar if alive or otherwise to the complainant within one month from this date in default the same may be realized in due process of law.

Both parties be supplied copy of this Order free of cost.                                                  

                                  

____________________                   _________________                 _________________

HON’BLE   PRESIDENT              HON’BLE MEMBER              HON’BLE MEMBER