HON’BLE SUDIP NIYOGI PRESIDENT FACTS This is a case of medical negligence as alleged by the Complainant who, in the petition of complaint, stated that his son was admitted to the clinic of the Opposite Party named SANTHI CLINIC, Titagarh, where Opposite Party operated upon his son Soumyajit Saha who was suffering from bleeding, piles and fissures on 03/10/2021. But as his condition got deteriorated, operation again was done on 06/10/2021. But as his condition was further deteriorated, Complainant got his son admitted to Supernova Nursing Home, Kolkata under Consultant Physician Dr. A.K. Basu on 10/10/2021. At the Supernova Healthcare Multispeciality Institute, said Doctor observed that due to wrong treatment of a quack doctor, the health condition of his son was endangered. According to the Complainant, he had to incur Rs.3,15,000/- towards the treatment of his son. He issued letters to the Opposite Party seeking compensation of the said amount from him. As Opposite Party did not respond, Complainant sent another letter through his Advocate but that also fell flat. So, Complainant filed this instant complaint before this Commission praying for a direction upon the Opposite Party to pay Rs.3,15,000/- which was incurred by him in connection with the treatment of his son, Rs.50,000/- for harassment and Rs.50,000/- for cost of litigation. Opposite Party contested this case by filing written version and evidence. Opposite Party’s case is that the instant complaint is not at all maintainable and Complainant failed to prove any medical negligence on behalf of the Opposite Party in the treatment of his son. So, he prayed for dismissal of the instant complaint. While adducing evidence of both the parties, they also filed some papers in support of their claim. Both of them also exchanged questionnaires and replies thereto. The point for consideration, therefore, if the Complainant is entitled to the relief (s) as prayed for. FINDINGS Be it noted here, on entering appearance, Opposite Party filed one application challenging the maintainability of the instant complaint on the ground that it was not maintainable for non-joinder of parties as Dr. A.K. Basu of Supernova Multispeciality Healthcare Institute, Kolkata who, subsequently, treated the Complainant’s son was not made a party. Another point was taken by the Opposite Party that the Complainant’s son who was the patient and an adult but he did not file this complaint. So, Complainant cannot be treated as a ‘Consumer’. There were a few other points taken by the Opposite Party. The written objection against that application was also filed by the Complainant. However, on hearing both the parties, the said petition was disposed of and the instant complaint was held to be maintainable. Both the parties in this case filed their written argument. On behalf of the Opposite Party, the complaint case was assailed on several points raised by the Complainant. Opposite Party claimed that the Complainant could not give any specific date or dates when the operation on his son was/were done by the Opposite Party and what he gave is full of contradictions. Secondly, the Complainant did not submit any cogent papers in support of his case in connection with the treatment of his son. Thirdly, complainant did not file document showing payment of Rs.3,15,000/- which he claimed to have spent for the treatment of his son. Fourthly, Complainant did not approach this Commission with clear hands as he suppressed, in his petition of complaint, that he got back Rs.35,000/- from the Opposite Party which he had given as advance amount for the treatment of his son. Though, he subsequently, admitted the same virtually in his written objection against the application of the Opposite Party challenging the maintainability of the complaint. Fifthly and the most importantly, Complainant failed to prove that there was negligence on the part of the Opposite Party in the treatment of his son. No expert opinion is also there from his side. The observation of the doctor in the Supernova Healthcare Multispeciality Institute, Kolkata about the treatment by some quack practitioner cannot prove medical negligence on the part of the Opposite Party. It was further argued that the Opposite Party got the relevant degree and education and obtained the licence to practise in the field of Ayurvedic system of medicine from Odisha State Council of Ayurvedic Medicine. He also got certificate of CCIM (Central Council of India Medicine) on 17/08/2011 and on the basis of that he can practise in any part of India and also is permitted to provide treatment / Ksharsutra Chikitsa. So, according to opposite party, the observation of quack practitioner as made in the medical paper of Supernova Healthcare Multispeciality Institute is highly objectionable. According to Complainant, his son was operated upon twice by the Opposite Party at his SANTHI CLINIC. But despite that fact, the condition of his son got deteriorated. However, Complainant is found to have given the dates of the operation which are confusing. He gave, in his petition of complaint 03/10/2021 and 06/10/2021 to be the dates of operations. Again, in the copy of the application for GD lodged with the concerned police station against the Opposite Party which is produced by him, he cited the date as on 01/10/2021 and stated that his son was admitted on 01/10/2021 where the Opposite Party would perform microsurgery operation for piles/fissures. Again, in the same application, he claimed to have admitted his son to the said clinic on 02/10/2021 and was released on 04/10/2021. But he did not specify the date of first operation though, he claimed the second operation was done on 08/10/2021. He claimed that his son was admitted to the clinic of the opposite party on 02/10/2021 and thereafter, another operation was done on 08/10/2021. Be that as it may, we find, from the medical papers filed by the Opposite Party that with regard to the treatment in the clinic of the Opposite Party, that on 29/09/2021 his son who was said to be suffering from fissures and bleeding piles was advised for some pathological investigation. Then, another document which is the Leave Certificate issued by the Opposite Party on 02/10/2021 showing that Soumyajit Saha was under his treatment for bleeding piles and fissures from 02/10/2021 and advised for 15 days leave for restoration of normal health. Another paper dated 04/10/2021 which reveals that Opposite Party prescribed certain medicines for the said patient who was also advised to continue dressing, not to eat spicy food, drinking more water and take 15 days rest. This apart, no other document in connection with the treatment of his son by the opposite party was produced. Though he produced the discharge certificate of Supernova Multispeciality Healthcare Institute in connection with the treatment of his son on 13/10/2021 and other related papers. Complainant, neither in his petition of complaint, nor in his evidence did specify as to the amount he paid to the Opposite Party for the treatment of his son or he claimed that he incurred Rs.3,15,000/- in all, for the treatment of his son and he sought for realization of the said amount from the Opposite Party. On the other hand, Opposite Party produced one form for consent of the treatment of the complainant’s son Soumyajit Saha. There, it is found that the total amount was shown as Rs.45,200/- out of which advance of Rs.35,000/- was given. It is also noted there that full payment was made. Now, during argument of this case as also in the written argument filed on behalf of the Complainant, in fact, he admitted to have got back Rs.35,000/- from the Opposite Party which he did not mention in his petition of complaint and also in evidence. This act was disclosed by the opposite party in his written version, though he claimed the said amount was taken forcefully from him. Now, so far as the medical negligence is concerned, we find observations of the Hon’ble Apex Court in different decisions. In this regard, we may recall the observation of our Hon’ble Apex Court in Dr. (Mrs.) Chandarani Akhouri & others Vs. Dr. Methusethupathi & others, 2022 Live Law, 391 SC where it clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In Dr. Harish Kumar Khurana Vs. Joginder Singh & others reported in AIR 2021 SC 4690 where Hon’ble Apex Court taking into consideration of its previous judgment in Jacob Mathew Vs. State of Punjab & another reported at 2005 (6) SCC 1 and Martin F. D` Souza Vs. Mohd. Ishfaq reported in 2009 (3) SCC 1 it was held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical practitioner was negligent. To indicate negligence, there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring in which event the principle of res ipsa loquitur would be made applicable and not based on perception. What we find in this case, that there is no evidence at all that the Opposite Party conducted operation twice as no papers beyond the date of 04/10/2021 were produced when the second operation is claimed to have been conducted either on 06/10/2021 or 08/10/2021. In his reply to the query of the Opposite Party, Complainant claimed that second time operation was done by Opposite Party on 08/10/2021 but in the petition of complaint, there was typographical mistake in noting the date. However, we do not have any paper to go through the same. But from the documents produced by the Opposite Party, particularly the paper dated 04/10/2021, it is found that the Opposite Party prescribed medicines and also duly issued advice as to what to do by the patient. In the instant case, the operation done by the Opposite Party may not be successful under Ayurvedic treatment for which the Complainant was compelled to admit his son to the said Supernova Healthcare Multispeciality Institute. But there is no iota of evidence that the Opposite Party was negligent in giving treatment to the Complainant’s son. The observation of the doctor in the Supernova Healthcare Multispeciality Institute that the condition of the patient was complicated by some quack practitioner cannot lead us to hold that the Opposite Party was negligent in giving the treatment under his branch of treatment and medicine i.e. Ayurvedic. So, having considered all the material facts on record and following the discussion as made above, we opined that Complainant failed to establish of the cogent evidence as to any negligence of deficiency in service on the part of the Opposite Party in connection with the treatment of his son. Therefore, the instant complaint is liable to be dismissed. Accordingly it is ORDERED That the instant case being Consumer Case No.CC/3/2022 is dismissed on contest without any cost. Dictated and corrected by me President |
