The complainant, Smt. Minu Mitra, W/O- Sri Piyush (Pijush) Mitra by filing one application under section 12 of Consumer Protection Act. 1986 has initiated this case against three Doctors as OP Nos. 1 to 3 and subsequent to that during pendency of this case the name of OP No. 4 has been added on amendment and to that effect amended petition of complaint has been filed by complainant on 09.07.2013.
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It appears from petition of complaint that complainant is a permanent resident of Nivedita Road P.O. & P.S. Pradhan Nagar Dist.- Darjeeling. The complainant had been suffering from illness since 30.05.2011 and she got opportunity to avail the medical treatment at her residence nearest private medical clinic at Medica North Bengal Clinic, Pradhan Nagar, Siliguri and then complainant was admitted in that above named clinic/Nursing Home. During treatment there the health condition of the complainant was deteriorating. So after seven day, the husband of complainant, Sri Piyush Mitra shifted her to Anandalok Hospital & Neuro Science center, Sevoke Road within the town, Siliguri & there one Dr. Arup Chokrabory advised her husband to take her to All India Institute of Medical Science & Institute (AIIMS) New Delhi for better medical treatment of the complainant.
It is noted in the petition of complaint that prior to going to Delhi the complainant informed the Railway Doctor at NJP under N.F. Rly for her medical treatment. On being admitted started the complainant stayed to receive medical treatment at AIIMS at New Delhi on and from 11.06.2011 to 24.06.2011 and became gradually cured there. Against the OPs the complainant by filing FIR registered one criminal case under section 336 of Indian Penal Code out of Pradhan Nagar P.S. case no 429/2011 dtd. 18.10.2011. It is the complaint allegation that Opposite parties had stated the husband of the complainant that the disease with which complainant had been suffering was not curable but at Delhi while the Physicians/Doctors there treated medically thereafter the complainant started to recover gradually and now the complainant has been doing her routine family work. So it is stated that Opposite Parties committed the wrong medical treatment and for that they are liable to pay compensation against wrong medical treatment over the complainant. By filing this case complainant has prayed for Rs. 5,00,000/- as compensation plus Rs. 1,00,000/- as air travelling expenses with miscellaneous expenses and another Rs. 1,00,000/- in total Rs. 7,00,000/- from the OPs.
All the four OPs have contested this case and they have submitted their written versions separately.
In all the four written versions almost all the complaint allegation have been denied but it is admitted by the OPs that the patient had come to Medica North Bengal Clinic on 30.05.2011 with a history of fever and headache of 6-7 days duration and after through clinical examination, a CT Scan of the Brain was performed upon the complainant along with an eye examination followed by CSF study and upon evaluation of these tests by the Nursing Home attached group of Doctors a provisional diagnosis of meningitis (Bacterial) was made and the complainant was on I.V.
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antibiotics and accordingly her health condition was improving gradually and there was no new developments such as neuro deficits or worsening of symptoms, so another CT Scan was deferred for a few day and when the complainant’s symptoms recurred a CT Scan/MRI Brain was advised by these OP Nos. 1 to 3 Doctors but the patient party expressed their desire to get the complainant treated elsewhere and on request of them the patient was discharged on 07.06.2011 at 10.27 am from OP No. 4 Nursing Home by the doctors under whom complainant was admitted.
All the three OPs/Doctors stated that allegation of wrong diagnosis and wrong treatment is baseless and it is further stated that illness suffered by the complainant was extremely rare hence it was difficult to diagnose in a set up like Siliguri town, however, it does not justify referral of all patients with headache for treatment is a set up such as at AIIMs, Delhi.
It is the case of the OPs further that in course of the complainant’s treatment at Medica North Bengal Clinic, Siliguri, nothing was done to cause any harm to the Patient and the OPs/doctors have acted to the best of their ability and judgment in treating the complainant. In fine, the written version of the OPs stated that complainant is on frivolous ground and based on ignorance of knowledge of medicine, hence this case should be dismissed.
On the pleadings of the parties the following Issues are framed for consideration of the instant case.
ISSUES.
- Is the case maintainable in its present form and nature?
- Is the complainant a consumer under the purview of the C.P. Act. 1986?
- Has there been any deficiency in service upon the complainant being patient by the/from the part of the OPs/doctors of Nursing Home Authority?
- Is the complainant entitled to the relief/reliefs/award as prayed for?
DECISION WITH REASONS.
Issue Nos. 1 & 2.
Admittedly the OP Nos. 1 to 3 are the doctors/medical practitioners by profession attached with OP No.4, Medica North Bengal Clinic (Nursing Home) situated at Pradhan Nagar, Siliguri, Dist.- Darjeeling at the relevant time while complainant herself was treated by them at the said Nursing Home. The date of admission in that Nursing Home was on 30.05.2011 and the date of discharge therefrom was on 07.06.2011 and in this context we have perused
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the relevant document on record. It is well settled that service rendered to a patient by a medical practitioner by way of consultations, diagnosis and treatment both medical and surgical falls within the ambit of ‘service’ as defined in Section 2(1)(o) of the C.P. Act. 1986. It further appears that the complainant in this case has prayed for and claimed a sum of Rs. 7,00,000/- in total in the form of compensation and for other expenses from the OPs. Accordingly, there exists no hesitation to hold that this instant case is well within the pecuniary and territorial jurisdiction of this Forum and the complainant is a consumer as per Section 2(1)(d) of the C.P. Act. 1986. Hence, both these issues are answered in the affirmative in favour of the complainant.
Issue Nos. 3 & 4.
These two issues are taken up together for the sake of convenience of discussion and consideration to avoid repetition.
In order to consider these two issues we have gone through the petition of complaint as amended, the written versions, the documents as filed by the parties, the evidences on record as well as the written notes on arguments and the judgments as referred from the side of the OPs during argument of their Ld. advocate on record. It is the case of the complainant that she was suffering from some illness and thus got admitted to avail medical treatment at OP No.4 Nursing Home where the OP Nos. 1 to 3 being doctors/physicians started treatment and it is seen from the medical papers that the history of the patient has been noted as hypertensive presented with nausea, vomiting, severe headache and restlessness and the patient was evaluated and diagnosed as a case of Meningitis (Bacterial) and thus CT Scan of brain (Plain) of complainant was done at the Nursing Home on 31.05.2011. It is further found from discharge summary that the patient was discharged on option of the patient party for treatment elsewhere and thus advised by the doctors on that occasion to attend higher centre for further management. Thereafter, the patient, the present complainant was taken by her family members to Anandolok Hospital and Neurosciences Centre at the same town, Siliguri where she was admitted on 07.06.2011 and got discharged there from on 11.06.2011 and in the meantime on 08.06.2011 another CT Scan of brain was done on the advice of Dr. Anup Chakraborty but it is found that the complainant was taken to All India Institute of Medical Sciences, New Delhi where she was admitted on 11.06.2011 and discharged therefrom on 24.06.2011. Perused the medical papers of AIIMS, New Delhi and it appears that the patient, complainant after receiving medical treatment at AIIMS at New Delhi gradually started to improve and became cured. It is found from the record that the complainant lodged one FIR being No. 429/11 dtd. 18.10.2011 against OP-Doctors of the
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Clinic under section 336 of Indian Penal Code after being cured from AIIMS, New Delhi. From all the documents of the complainant it appear that complainant always alleged that the doctors/OP Nos. 1 to 3 of the Nursing Home, OP No.4 wrongly treated her medically. In this context we have gone through the evidence of the complainant filed along with an affidavit placed before this Forum and the affidavit-in-chiefs of the husband of the complainant as well as that of one Manik Chandra Das said to be the brother of the complainant and in all these evidence as filed from the side of the complainant it is coming clearly that all the three (03) doctors the then attached with the Clinic or Nursing Home, OP No.4 medically examined the complainant during her admission in that clinic and started treatment but after seven(07) days the patient party including the husband and brother of the complainant decided to take discharge of the patient for her treatment elsewhere and accordingly she got discharged on 07.06.2011 and ultimately became cured from AIIMS at New Delhi. By filing this case the question of deficiency in service has been raised against the OP-Doctors and the Clinic. It is pertinent to note here that in this case no medical expert was appointed. Ld. advocate for the complainant during argument submitted that one Enquiry committee was formed by the Chief Medical Officer Of Health, Darjeeling over that complain of wrong treatment by the three physicians namely Dr. Sandip Sen, Dr. P.D. Bhutia and Dr. A. Hussain in the matter of the treatment of complainant in context of criminal case against them under section 336 IPC. Ld. advocate further submitted that the doctors/OPs were negligent in the treatment of the complainant and moreover they were not able to diagnose the disease and for that reason complainant suffered a lot and the patient party amongst them the husband and the brother of the complainant were compelled to take the patient-complainant to AIIMS, New Delhi and as the complainant has proved this case so she is entitled to get the reliefs as prayed for.
The Ld. advocate for the OPs during argument submitted that while the patient was admitted at OP No.4-Clinic and stayed there for about seven days then the OPs being the three doctors the then attached with the Nursing Home/Clinic in question strived their best for detection of the disease and CT Scan of brain of the complainant was done but as they felt some medical infrastructural lacunae in the Nursing Home for perfect diagnosis at the relevant time so in the discharge certificate that has been mentioned and the Nursing Home Authority handed over the patient for better treatment of her to the patient party at their option of taking discharge therefrom.
Ld. advocate for the OP in context of this case has referred some case laws/rulings as reported in 1) AIR 2010 SC 806: Ramesh Chandra Agarwal Vs Regency Hospital Ltd. & Ors., 2)
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2005 Cr L J 3710 (SC): I (2005) CPJ 9 (SC): Jacob Matthew Vs. State of Punjab and Another., 3) 2009(2) CPJ 48 (SC): C.P. Sreekumar (Dr) Vs S. Ramanujam., 4) 2010 (III) CJP 1 (SC): V. Kishan Rao Vs. Nikhil Super Speciality Hospital & anr.
Ld. advocate for the OPs further submitted that no report of medical expert has been there in this case which can show that negligence was done from the part of the doctors attending the complainant while she was admitted at OP No.4, Clinic. It is also submitted that the complainant’s husband and the patient party in the midst of the treatment at their own risk and option took away the complainant from the Nursing Home and so the Clinic/Nursing Home Authority discharged the patient therefrom on 07.06.2011 and during continuation of treatment the OP-Doctors jointly in consultation with one another with sincerity gave their effort with skilled knowledge in medical science for curing her from the ailment but they became debarred as patient party on their own risk took away the patient on discharge therefrom. We have perused the judgments as referred from the side of the OPs passed by our Hon’ble Apex Court of India wherein it has been observed in the case in between Jacob Mathew Vs state of Punjab and another “A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess”. In another case as referred and reported in 2009 (2) CPJ 48 (SC) Hon’ble Supreme Court of India has been pleased to hold “As already observed in Jacob Mathew’s case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facts probanda as well as the facta probantia”. On the point of expert opinion we have perused the principle of law as held in the judgment in between Ramesh Chandra Agarwal Vs. Regency Hospital Ltd. and others as reported in AIR 2010 (SC) 806 which runs as follows:- “The test is that the
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matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court’s knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed”. Further in Kusum Sharma’s case our Hon’ble Supreme Court of India has once again settled the law relating medical negligence and it is held that in the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of the other professional doctor. And it has been further enshrined that negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence and merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. Here, in this case, no medical expert report is found on record but one observation is obtained from the final report of the I.O. of the criminal case as was initiated on the FIR of the complainant and we have gone through the papers and documents over that criminal case arisen out of Pradhan Nagar P.S. case no. 429/11 dtd. 18.10.11 where the investigating police officer after investigation submitted final report in the court of Ld. ACJM at Siliguri and in that final report it is mentioned that the investigating officer of the said case on requisition dtd. 24.01.2015 vide Pradhan Nagar P.S. DR No.340 on 28.01.2015 received the report of Dr. Sajal Biswas, Consultant Neuro Surgeon, Assistant Professor, Department of General Surgery of North Bengal Medical College and Hospital, Sushrutnagar, Dist.- Darjeeling over that enquiry opined in conclusion and reported “I absolutely do not find any lapses in the management of Mrs Minu Mitra by the three consultants of the Medica North Bengal Clinic Siliguri”. Thus under the facts and circumstances of the case, on scrutiny of the materials on case record, we are of the view that the complainant in absence of medical experts report has been totally failed to establish or even to show that carelessness or negligence was there at her treatment at the relevant time from the part of any of the three doctors in the Medica North Bengal Clinic. No cogent evidence as regards negligence of the OP-Doctors is produced from the side of the complainant and even no iota of evidence is there. The mere allegation in the petition of complaint is not sufficient and in view of the circumstance we have borne in mind the guidelines and important observations of the Hon’ble Apex Court of India and considering all these we are of the view that the OP-Doctors were not either negligent or deficient in rendering service as medical practitioners remaining in that profession to the complainant. The negligence or carelessness of the OPs as doctors
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of Medica North Bengal Clinic at the relevant time over the treatment of complainant as alleged is not at all proved and accordingly deficiency in service upon the complainant from the part of the OP-Doctors as raised is also not proved. As a result, the instant case fails. As a logical corollary, the complainant is not entitled to get any relief in this case as prayed for. Both the issues are thus decided against the complainant. All the issues are accordingly disposed of.
Hence, it is,
O R D E R E D,
that the instant Consumer Case being No. 08-S-2013 be and the same is disposed of on contest without any cost to the OPs.
Let a copy of this final order/judgment be given to the parties free of cost at once.
