The case of the complainant, in a nutshell, is that the daughter of complainant namely Kumari Tabasum Yasmin, aged about 07 months felt abdominal pain and vomiting in the morning of 01/03/17. Thereafter the complainant rushed to Madrihat Rural Hospital and reached there at about 10:00 a.m. Vide Office SL. No. 357 after performing all formalities, but on duty medical officer i.e. No. 1 was not present there and he was not available on call as the said O.P No. 1 was busy in his private practice at his Govt. quarter near hospital. The on duty staff informed the critical position of the baby but the O.P No. 1 did not attend in the hospital as he was busy in his private chamber.
The further case of the complainant is that the staff of the hospital again rushed to the M.O. i.e. O.P No. 1 and they found the O.P was heavily busy and hearing the staff of the hospital the O.P No. 1 referred the patient to the Birpara State General Hospital without giving any fast Aid or any preventive steps or applying his medical mind and physical examination of the patient. The patient party then removed the baby and left for Birpara at 4 p.m. Thereafter the O.P No. 1 regularized the record of the hospital to save his skin and ultimately the patient died at 7:55 p.m. at Birpara Hospital on 01/03/2017.
It is further case of the complainant that O.P No. 1 is not allowed to run private practice in the Govt. quarters particularly during office hours causing inconvenience and suffering of the patient- party but his unfair medical practice has been running for wrongful gain at the cost of the patient since long. The O.P No. 1 declared himself as specialist in child care at critical stage and he fixed up a board beside his residential quarter “Critical Care Specialist in Child” and how he obtained and wherefrom it was not disclosed by him, it might be false and fabricated by him which was supported by O.P No. 2 who also did not provide information even after RTI issued by the complainant.
The complainant has further averred that O.P No. 1 was grossly neglected in performing his duty and even did not refer the patient in time and death of the child was due to his gross negligence and without treatment.
Hence, this case filed by the complainant with a prayer for compensation of Rs.20, 00,000/- (Rupees twenty lacs) from O.P No. 1 and cost of the suit.
Both the O.Ps have appeared before this Forum and contests the case by filing separate W/Vs.
The case of the O.P No. 1 is that the complaint is not maintainable in it’s present form and the complaint is barred in law under C.P. Act and this Forum has no jurisdiction to entertain the case. The O.P No. 1 has also denied all the materials allegation level by the complainant against him and as such the case should be dismissed with exemplary costs. O.P No.1 took plea that the patient baby Tabasum Yasmin was brought to the hospital on 01/03/2017 and immediately on her arrival she was treated at the emergency and thereafter she was admitted in the hospital at 10:15 a.m. The O.P.D emergency ticket dated 01/03/2017 prescribed some medicines to control her loose stool and vomiting. Thereafter about 12:45 p.m. condition of the baby (Tabasum) detoriated for which I.V fluid in addition to oral fluid were advised to start. But the legal guardian of the baby refused to take it resulting which dehydration started. Upon re-examination the patient at about 4:15 p.m. it was found that loose stool of the baby has not been satisfactorily controlled. As a result it was advised that the patient should be shifted to Birpara State General Hospital which is situated 16 KMs away from this Madarihat Rural Hospital. But the patient party was not agreeable to shift the patient. Thereafter, the O.P.No.1 consulted repeatedly the patient party saying that the baby-patient required special pediatric care which is not available at Madarihat Rural Hospital. Thereafter, the patient party shifted the baby after an intentional delay.
The O.P No. 2 has also stated in his W/V that this case is not maintainable either on facts or under the law and the complaint is barred by law under the C.P. Act and this Forum has no jurisdiction to entertain the case. This O.P has also denied the other allegations as alleged by the complainant against him and prayed for dismissal of this case with exemplary costs inter alia.
The complainant has filed evidence on affidavit. Ld. Agent for the complainant has submitted that he has not filed any separate written argument and the evidence filed by him be treated as written argument. His prayer is allowed.
The O.P No. 1 has filed evidence on affidavit and written argument.
The O.P No. 2 has also filed evidence on affidavit but no separate written argument filed.
Ld. Agent for O.P No. 2 has also submitted that the evidence on affidavit filed by O.P No. 2 be treated as written argument. His prayer is also allowed.
The complainant as well as O.P No. 1 both have filed some documents with firisty in support of their respective cases.
We have also heard argument from the side of complainant and from the side of both the O.Ps at length.
In this context, the following issues are necessarily come up for consideration to reach just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.2 (1)(d)(i)(ii) of Consumer Protection Act ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
As all the points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience.
It is admitted facts by both the parties that the complainant Md. Rajjak Hossain brought his baby-daughter aged about 7(seven) months named Tabasum Yasmin to the Madarihat Rural Hospital which is a Government hospital to avail treatment (for Tabasum Yasmin). Being a citizen of India the complainant is entitled to have/avail medical service/assistance/aids etc (here treatment) from the O.Ps as both the O.Ps have responsibility to ensure the proper treatment of the patient (Tabasum Yasmin). In the eye of law the status of the complainant is here as a “Consumer” which is fallen within Provision laid down u/s.2(i)(d)(ii) of the Consumer Protection Act,1986.
The complainant resides within the district of Alipurduar. Madarihat Rural Hospital and the Office of the O.P.No.2 both are situated with the district of Alipurduar. The claim amount does not exceed the pecuniary jurisdiction of this Forum. As such this Forum has both territorial as well as pecuniary jurisdiction to try this case and whereas the status of the complainant is “Consumer”. Therefore, this case is well maintainable. Being the authority of O.P.No.1 the O.P.No.2 has responsibility to provide medical service to the complainant. Though no relief claimed against O.P.No.2 yet it is necessary to incorporate it in this case for legal obligation otherwise the case could suffer for the ground of non-joinder of party.
In medical negligence case onus of proving lies on the complainant. Mere averment in complaint is not evidence. Allegations of medical negligence are to be proved by cogent evidence. To establish his case the complainant submitted his evidence on affidavit together with some documents as per his firisty.
As per written version in both the complaint and in evidence on affidavit of the complainant it is alleged against the doctor (O.P.No.1) that the baby (patient Tabasum) was admitted in the hospital while the doctor (O.P.No.1) was absent in the hospital. Therefore, it is presumed that baby-patient was admitted after observing all formalities with the help of the concerned staff(s). The O.P.No.1 (Doctor) was the only doctor of the Madarihat Rural Hospital who resides in the Govt. Quarter in the hospital compound. It is alleged that at the relevant time the doctor (O.P.No.1) was busy with his private practice in his aforesaid quarter where there was a long queue. Despite repeated calls by the duty staff(s) of the hospital the doctor did not attend to visit the baby-patient (Tabasum) when she was in critical position as the doctor was heavily engaged at the relevant time with his above stated private practice.
It is also appeared from the aforesaid documents that the O.P.No.1 (the doctor) prescribed some medicines for that baby-patient but without examining her and the complainant collected those medicines privately. But the duty Nurse refused to apply those medicines on patient without advice of the doctor. When the baby-patient was in critical position at that time the staff of the hospital rushed to the doctor in his quarter. At that time the doctor (O.P.No.1) was heavily busy with his private practice resulting which hearing the staff the doctor referred the case to the Birpara State General Hospital without examining the patient and without taking preventing steps.
Finding no alternative a complainant along with his family removed the baby (Tabasum) and started for Birpara State General Hospital at 4:00 p.m. The baby-patient died in Birpara state General Hospital at 7:55 p.m. on the same day i.e. on 03/01/2017. The O.P No. 1 (Doctor) to save his skin regularized the treatment report in connection with the baby-patient (Tabasum) in the hospital which is afterthought one. The complainant tried his best to prove his allegations against the O.P No. 1 (Doctor) on production of the documents as per his firisti being Sl. No. ‘1’ to ‘12’.
On perusal of those documents it is appeared that both the Bed Head Treatment Sheet (For I.P.D) from Madarihat Block Primary Health Centre and the Death Certificate from Birpara State General Hospital show that the age of baby-patient Tabasum Yasmin is 7(seven) months. As per statement of the complainant it is reported in the “Uttarbanga Sambad” dated 4th March, 2017 that the baby-patient was examined by O.P No. 1, in the Madarihat Rural Hospital and then the doctor (O.P No. 1) prescribed medicines of which costs price was amounting to Rs. about 500/-. Another report in the “Uttarbanga Sambad” dated 14th May, 2017 speaks that the complainant having been dissatisfied with report from the Black Medical Officer of Health, Madarihat-Birpara Block, Alipurduar lodged complaint in Madrihat P.S. against the doctor (O.P No. 1) and the O/C of Madrihat P.S. Sunil Kumar Ray informed that whereas the allegation is against a doctor (O.P No. 1) as such he has sought for report (opinion) from the District Medical Board and legal action be taken against the doctor on the basis of the report from that Board (copy of F.I.R dated 11/05/2017 submitted here with).
Application dated 03/03/2017 of the complainant addressed to the C.M.O.H, Alipurduar district through proper channel speaks that the complainant has sought punishment against the doctor (O.P No. 1) alleging the doctor’s negligence inter-alia after holding an enquiry. The Memo No. 847 dated 21/04/2017 of the Chief Medical Officer of Health, Alipurduar speaks that a team consisting of the Deputy C.M.O.H-II, Alipurduar and a pediatrician perused the treatment documents and spoke the Medical Officer concerned, and duty staffs as well as the complainant. The said committee (not team) reported that there was no evidence of Medical negligence on part of doctor Safiul Alam (O.P No. 1).
The case has been instituted in this Forum on 12/09/2017 but the complaint remains silence against that report. That a part one Prosenjit Das asked some queries dated 11/03/2017 in respect of Dr. Alam under Right to Information Act from the Block Medical Officer of Health (PIO), Madrihat- Birpara Block. In reply the said B.M.O.H reported against such quaries of that Prosenjit Das which speaks that Dr. Saiful Alam Mallik was on duty on that day (01/03/2017) and he referred the patient to Birpara State General Hospital on the same day.
Furthermore, the Bed Head Treatment Sheet (For I.P.D) being registration No. 357 dated 01/03/2017 speaks that the doctor has examined the patient (Tabasum) at 12:45 p.m. and she was urgently referred to BSGH (Birpara State General Hospital) on the same day at 4:15 p.m., due to loose stool continuation. Despite such reference party (the patient party) forced to stay here (in Madrihat Rural Hospital).
Considering the weight of report of C.M.O.H, Alipurduar (Memo No. 847 dated 21/04/2017) and report of B.M.O.H (PID), Madarihat-Birpara Block (Memo No.-B.M.O.H/MDT/401/17 dated 30th March, 2017) it is very risky to come to the conclusion that there was deficiency in service on part of O.P NO. 1. Unless and until disproving the aforesaid two documents it is also risky to conclude that the O.P side has regularized the hospital record in respect of death of the baby-patient Tabasum Yasmin later on.
Mere evidence on affidavit of the complainant alone is insufficient to rebut such Reports of these two Authorities. More corroborative oral as well as documentary evidenced are required to disprove such reports. We cannot rely upon the statements reported in the “Uttarbanga Sambad” as those asre reported on the basis of the statement of the complainant although it is doubtful to believe as to whether the patient party forced to stay in the Madarihat Rural Hospital despite reference of the doctor (to Birpara State General Hospital). Death of his daughter is an irreparable loss of the complainant and as such it is unwise to believe that patient party forced to stay despite being referred. It is also doubtful as to whether the District Medical Board will send Report to Madarihat P.S (as reported in “Uttarbanga Sambad” dated 14th May,2017) or not. Inspite of that we hope that there is a scope to prove the allegation against the doctor (O.P.No.1) through investigation by police and before the Competent Court of Law in future. This Forum has limited scope in trial of such nature’s case. It is disheartened to say why the authorities of the O.P.No.1 allowed him to practice in different chambers (Basuniya Medical At-Mile, Ma Medical, Nay Mile, Rohit Medical , Madrasa more), Swapna Medical, Jaigaon as General Physician and Critical Care and Specially in Child with the strength of certificate No. A No.4652 dated 28 Dec, 2013 which is issued by Dr. M. Bodhanwala, C.E.O, Wadia Group of Hospital which does not lead to awarding of a degree or diploma in the speciality nor does it provide a license to practice as a specialist.
The allegation against the doctor (O.P No.1) as regularization of hospital record in connection with the death of the baby-patient Tabasum Yasmin afterthought one is remained as “not proved” due to lack of corroborative evidence.
Considering such legal position as discussed above we have no alternative but to hold that the instant case has failed to achieve it’s success inspite of the positive results of Points Nos. 1 and 2. But whereas the allegation against the O.P.No.1 (doctor) in respect of afterthought regularization of treatment record of the baby-patient (Tabasum Yasmin) in the hospital (Madarihat Rural Hospital) is remained as “not proved” and investigation to that effect is pending in Madarihat P.S as such it should not be barred in the trial before any Competent Court of Law ; other than this Forum; by way of invoking the Principle of Resjudicata.
Thus all the points are disposed of.
Hence, for ends of justice, it is,-
ORDERED
that the instant case be and the same is dismissed on contest but without costs.
However, this order should not be applied in invoking the Principle of Resjudicata before any Competent Court of Law, other than this Forum, if so happens in future. The reasons have already been discussed above.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action
Dictated & Corrected by me-
