Date of Filing: 23.11.2016 Date of Final Order: 14.09.2017
Sri Asish Kumar Senapati, President.
This is an application u/s 12 of the C.P. Act, 1986.
The complaint case in brief is as follows :-
One Tahamina Bibi, since deceased, wife of Ainul Hoque Mallick (Complainant), a resident of Dinhata, came to Dr. Saswati Halder (Bera), OP No.1 on 13.10.2016 with complaint of her vulval itching and the OP No.1 prescribed some medicines without any diagnosis and test. As the patient got no response from the medicines prescribed by OP No.1, she again came to OP No.1 on 18.10.2016 and she was referred to a Physician. On 19.10.2016, the patient was admitted in Dinhata SD Hospital, from where, she was referred to MJN Hospital, Cooch Behar on 20.102016 and the Doctor of MJN Hospital advised the patient to consult a Dermatologist. On 21.10.2016, the patient was consulted by Dr. Pinaki Tarafder, a Skin Specialist, on being discharged from MJN Hospital, Cooch Behar. Dr. Tarafder after examining the patient diagnosed her ailment as “SJ Syndrom” and asked the patient to go to Dr. Subhas Chandra Saha (OP No.2). On 21.10.16, the patient was examined by OP No.2 at Dr. P.K. Saha Hospital (OP No.3) with known diagnosis of “SJ Syndrom” alongwith Bronchitis with T2 DM. On being asked by the Complainant, OP No.2 assured him that the patient would be cured within 15 days. After admission, the condition of the patient was deteriorated day by day but the OP No.2 did not care to refer the patient to any Specialist of “SJ Syndrom” inspite of repeated requests. The OP No.2 also did not care to do HIV test or other immune system deficiency tests, skin biopsy and the Hospital staff did not care to clean the skin. Ultimately, after a lapse of about 10 days, the patient died at OP No.3 Hospital due to deficiency in service on the part of OP No.2 and OP No.3. That such serious skin infection patient needs to keep in either Burn Ward or in ICCU and should be provided AIR bed but the AIR bed was provided to the patient by OP No.2 and OP 3 on 29.10.16 i.e. just one day prior the date of her death. That a Discharge Certificate showing discharge of the patient against medical advice was prepared on 30.10.16 by OP No.3 Hospital but the patient expired on 30.10.16 at 6.55 AM. Perhaps, the said Discharge Certificate was manufactured to show that prior to the death of the patient, she was discharged from the OP No.3 Hospital. From the cardiac monitor chart, it appears that from 10 PM on 28.10.16 the heart rate of the patient was found nil while the OP No.2 declared the patient dead at 30.10.16 at 6.55 AM. Tablets Allegra-180, Tanzepam, Polybion and Pentodac were given to the patient in a stage when the patient’s heart rate was found nil. The OP No.2 and his companion Doctors at OP No.3 treated the patient in negligent manner for about 10 days and ultimately, declared dead on 30.1016. They did not care to refer the patient to any higher centre or to any Specialist’s centre. The Complainant and his relatives repeatedly requested the OP No.2 to refer the patient to any suitable place for treatment but the OP No.2 did not pay any heed to it. That a sum of Rs.55,000/- was paid to OP No.3 towards hospital charges and Doctors’fees, The victim during her life time used to work as day labourer and earned Rs.7,500/- per month and her sudden death caused loss to her family. The cause of action of this case arose on 13.10.16 and within the jurisdiction of this Forum. The Complainant claimed Rs.7,95,000/- as compensation against the Ops.
The OP No.1 Dr. Saswati Halder (Bera) put her appearance and filed w/v on 09.03.17 stating that the Complaint is not maintainable and it is barred by law of limitation. It has also been asserted that the case is bad for defect of parties as Dinhata SD Hospital, MJN Hospital, Cooch Behar and Dr. Pinaki Tarafder have not been made parties. The OP No.1 asserted that she examined Tahamina Bibi on 13.10.16 who came to her chamber with a complaint of vaginal white discharge and and vulval itching and on clinical examination, she was advised for some investigations and prescribed some medicines with an advice to attend Physician immediately for necessary management and treatment. Thereafter, the patient did not turn up. There was no negligence on the part of the OP No.1 and non-mentioning of her Registration Number was due to printing mistake inadvertently in the prescription. There was no deficiency in service in treating the patient by the OP No.1. She has prayed for dismissal of the complaint with cost.
The OP No.2 Dr. Subhas Chandra Saha filed w/v on 23.03.17 inter-alia denying the material allegations made out in the complaint, contending that the case is not maintainable as the Complainant is not a consumer and the case is bad for defect of parties. The OP No.2 asserted that the patient Tahamina Bibi came to him on being referred by Dr. Pinaki Tarafder with history of T2 DM, “SJ Syndrom” with acute Bronchitis. The condition of the patient being critical, Dr. Pinaki Tarafder advised the patient to consult with a Physician keeping in mind the physical condition of the patient. The patient was admitted under OP No.2 at OP No.3 on 21.10.16 and treatment continued during the period from 21.10.16 to 30.10.16 though the physical condition of the patient was not favourable and there was no such condition to refer the patient to any further institution. The patient was given treatment as per medical norms and there was no negligence or carelessness on the part of OP No.2. The OP No.2 also denied the allegation that the patient had monthly income of Rs.7,500/-. The patient party on 29.10.16 at night expressed their desire that they would take their patient to elsewhere in spite of the fact that the Ops disclosed that the condition of the patient was not in a position to be taken elsewhere but the patient party was persuading for discharge and accordingly in the intervening night of 29.1016and 30.10.16, the Discharge Certificate was prepared and handed over to the patient party. They told that they would shift the patient by night or by morning by making necessary arrangement, for which the Discharge Certificate was issued with the remarks DORB and discharged against medical advice. But, before making arrangement for shifting, the patient expired at 6.55 AM. Accordingly, Death Certificate was issued in respect of the patient. There was no negligence or deficiency in service on the part of the OP No.2. The OP No.2 never assured the patient party that the patient would be cured and there was no necessity to refer the patient elsewhere. It is the prerogative of the patient party as to when and where they would take the patient, if any patient party sought for release, the Ops forthwith released the patient. The OP No.2 has prayed for dismissal of the complaint with cost.
The OP No.3 Dr. P.K. Saha Hospital filed w/v on 23.03.17 contending that the case is bad for defect of parties and it is barred by law of limitation. It is the version of the OP No.3 that one Tahamina Bibi, a female, aged about 37 years, was admitted in OP No.3 Hospital under OP No.2 on 21.10.17 on being referred by Dr. Pinaki Tarafder with history of T2DM, “SJ Syndrom” with acute Bronchitis and the patient was under the care of OP No.2 and 3 from 21.10.16 to 30.10.16. There was no negligence, deficiency in service or unfair trade practice on the part of OP No.2 and 3. The patient had paid Rs.55,000/- on 30.1016 as medical expenses including Doctors’ fees and pathological investigation charges. The Complainant filed this case with mala fide intention. The OP No.3 has prayed for dismissal of the complaint with cost.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986 or is the Complainant a Complainant as per section 2 (b)(v) of the C.P.Act, 1986 ?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any medical negligence and/or deficiency in service, as alleged by the Complainant?
- Whether the Complainant is entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point Nos.1 & 2.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant submits that Complainant is the husband of the victim Tahamina Bibi who was a consumer under the Ops as payment of Rs. 55,000/- was made for treatment of Tahamina Bibi and after death of Tahamina Bibi, the Complainant, being husband of Tahamina Bibi, has filed this case. He also submits that this Forum has both pecuniary and territorial jurisdiction to entertain the complaint as all the Ops reside/run their business within the territorial jurisdiction of this Forum and the claim of the Complainant is also within the pecuniary jurisdiction of this Forum.
The Ld. Agents for the Ops submit that the complaint is not a consumer and so, the case is not maintainable.
Admittedly, Tahamina Bibi was treated by the Ops on receipt of consideration and after death of Tahamina Bibi, the Complainant, being the husband, has filed this case. Therefore, we are of the view that Ainul Hoque Mallick being the husband of Tahamina Bibi is entitled to file the complaint as Complainant u/s 2(b)(v) of the CP Act, 1986.
On going through the materials on record, we are also of the view that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint. Both the points are thus disposed of in favour of the Complainant.
Point Nos.3 & 4.
Ld. Agent for the Complainant submitted that the wife of the Complainant Tahamina Bibi was a victim of medical negligence and deficiency in service rendered by Ops. It is argued that OP No.1 being a Doctor did not even mention her Registration No. in the prescription and referred the patient to a Physician. It is also contended that the patient Tahamina Bibi, since deceased, was admitted in Dinhata SD Hospital and MJN Hospital, Cooch Behar and as per advice of Doctor of MJN Hospital, she was brought to Dr. Pinaki Tarafder, a Dermatologist, who clinically examined the patient on 21.10.16 and diagnosed the patient to have SJ Syndrom and told the patient to go to Dr. Subhas Chandra Saha (OP No.2). It is submitted that the patient was admitted under the OP No.2 on 21.10.16 at OP No.3 Hospital with known diagnosis of SJ Syndrom, T2DM and acute Bronchitis. He further argued that OP No.2 assured the patient party that the patient would be recovered within 15 days but the condition of the patient was not improved after her admission and in spite of repeated requests, OP No.2 and 3 did not care to refer the patient to a Specialist of SJ Syndrom and so the Ops have deficiency in service and they are guilty of medical negligence. It is submitted that OP No.2 issued Discharge Certificate on 30.1016 but the patient expired on 30.10.16 at 6.55 AM. He contends that the monthly income of the patient was Rs.7,500/- and the family of the patient suffered financial loss also due to death of Tahamina Bibi. It is submitted that the Complainant has prayed for Rs.7,95,000/- against Ops. He draws our attention to a decision reported in 2014(2) CPR412(NC) wherein it is held that delay in referring patient for better treatment amounts to medical negligence. He prays for passing appropriate order against Ops.
The Ld. Agents for the Ops submittd that none of the Ops was negligent in their duties and there was no deficiency in service on their part regarding treatment of the patient Tahamina Bibi. It is contended that OP No.1 Dr. Saswati Halder( Bera), a Gynaecologist and Obstetrician, examined the patient Tahamina Bibi on 13.10.16 with a history of vulval itching and white discharge and on examination, the patient was advised for some tests, prescribed some medicines and referred the patient to a Physician. It is argued that OP No.1 being a Physician had nothing to do with the patient on 13.10.16. He further argued that non-mentioning of Registration No. in the prescription is a typographical mistake which may be condoned.
It is submitted that the patient was treated by Doctors of Dinhata SD Hospital and MJN Hospital, Cooch Behar. MJN Hospital, Cooch Behar referred the patient to a Dermatologist. It is contended that the patient was clinically examisned by Dr. Pinaki Tarafder, a Dermatologist, on 21.10.16 and diagnosed the patient’s ailment as SJ Syndrome. It is further argued that the patient Tahamina Bibi, wife of the Complainant, got admitted at OP No.3 Hospital on 21.10.16 at 1.20 PM under OP No.2 with diagnosis of T2DM, SJ Syndrome and acute Bronchitis and expired on 30.10.16 at 6.55 AM though Air Bed was provided to her on 29.10.16 and the death was due to Cardio Respiratory Failure in a case T2DM, SJ Syndrome and acute Bronchitis. It is argued that the Ops took sincere efforts and care for treatment of the patient and there was no medical negligence or deficiency in service on the part of OP No.2 and 3. He argued that the condition of the patient Tahamina Bibi was not favourable and she was not in a position to move elsewhere. It is urged that the patient was discharged in the intervening night of 29/30th October, 2016 as the patient party intended to shift the patient elsewhere though it was against the medical advice but ultimately the patient expired at OP No.3 hospital at 6.55 AM on 30.10.16. It is urged that severe cases of SJ Syndrome may need to be treated in an Intensive Care Unit or Burn Unit and the patient got the said treatment at OP No.3 hospital and main cause of SJ Syndrome is due to reaction of drugs. In this respect, he draws our attention to the decision reported in 2016(4) CPR190 (NC) wherein it is held that unsuccessful treatment does not imply medical negligence. He also draws our attention to the decisions reported in 2015(3) CPR525 (NC) and 2016(3) CPR 23(NC). It is urgued that Ops are not liable for any medical negligence and deficiency in service as they tried their best to cure the patient Tahamina Bibi. They prayed for dismissal of the complaint with cost.
Admittedly, one Tahamina Bibi, aged about 37 years, Muslim female, was clinically examined by OP No.1 on 13.10.16 who advised for some tests, prescribed some medicines and referred the patient to Physician. It is true that there is no mention of Registration No. in the prescription. The said fact does not establish any medical negligence against the OP No.1.
Admittedly, the patient was admitted at Dinhata S.D. Hospital and MJN Hospital, Cooch Behar and the Doctor of M.J.N. Hospital, Coochbehar, referred the patient to a Dermatologist and the patient was clinically examined by Dr. Pinaki Tarafder, a Dermatologist, on 21.10.16 who diagnosed the ailment as SJ Syndrome. According to the Complainant, Dr. Pinaki Tarafder referred the patient to Dr. Subhas Chandra Saha but the prescription of Dr. Pinaki Tarafder dated 21.10.16 has no endorsement to the effect that he referred the patient to Dr. Subhas Chandra Saha. There is no mention in Annexure “H” i.e. Admission Sheet of the patient at Dr. P.K. Saha Hospital that patient was referred by Dr. Pinaki Tarafder. Therefore, it can be said that the patient party brought the patient Tahamina Bibi to Dr. Subhas Chandra Saha for her treatment at Dr. P.K. Saha Hospital Pvt. Ltd. It appears from the Admission Sheet, Indoor details, Continuation Sheet, Cardiac Monitoring Chart, Medicine Chart, Patient’s History Sheet, Blood Pressure, blood Sugar chart, intake-output chart etc. of Dr. P.K. Saha Hospital that the Complainant put his signatures on 09.11.16 on all the papers. Therefore, it can be said that every details of those documents were known to the Complainant on 09.11.16. Let us consider as to whether OP No.2 and 3 are guilty of medical negligence and deficiency in rendering service to the patient Tahamina Bibi . The diagnosis of Dr. Pinaki Tarafder and Dr. Subhas Chandra Saha (OP No.2) is more or less same. Both the Doctors diagnosed the ailment of the patient as SJ Syndrome. The Ld. Agent for the Complainant raised the point that non-referring the patient to any higher centre is deficiency in service as decided in a case reported in 2014(2)CPR412(NC). There is no doubt that delay in referring a patient for better treatment amounts to medical negligence. It is the oral version of the Complainant that in spite of repeated requests, the OP Nos.2 and 3 did not refer the patient for better treatment. The patient was given Air Bed on 29.10.16. The continuation sheets for treatment of Tahamina Bibi at OP No.3 Hospital dated 21.10.16, 22.10.16, 23.10.16, 24.10.16, 27.10.16, 28.10.16 and 29.10.16 establish that the OP No.2 attended the patient on those days. There is no endorsement in the prescription of Dr. Pinaki Tarafder dated 21.10.16 that the patient was referred to Dr. Subhas Chandra Saha. Therefore, it can be said that the patient party on their own motion preferred to go to OP No.2 at OP No.3 Hospital for treatment of Tahamina Bibi. There is no proof that the Complainant asked the OP Nos.2 and 3 to refer the patient to any higher centre before the night on 29.10.16. Unfortunately, the patient expired on 30.10.16 at 6.55 AM and the Death Certificate was issued accordingly by the OP No.3. The Complainant failed to establish that the Complainant asked the OP No.2 and 3 to refer their patient to higher centre but Ops refused to do so causing death of the patient. With due regards to the decisions reported in 2016 (4)CPR190(NC), 2015 (3)CPR525(NC) and 2016 (3)CPR20(NC) as referred by the Ld. Agents for the Ops, we are unable to ignore the principles of those decisions wherein it is held that unsuccessful treatment does not imply medical negligence. If in spite of best treatment, the patient could not be saved, no negligence can be imputed on the part of Doctor and the Doctor should not be punished if anything goes wrong. The Complainant has failed to establish that the O.P. Nos. 1 & 2 delayed in referring the patient to any higher centre specially when the O.Ps prepared discharge certificate even against medical advice.
In the present case, Tahamina Bibi expired on 30.10.16 at 6.55 AM at OP No.3 Hospital when she was under treatment of OP No.2. We have gone through the written complaint, w/v, evidence on affidavit adduced by both parties and documents submitted by both parties. On a careful consideration, we find that Complainant has failed to establish that the Ops had any medical negligence or deficiency in service in treating the patient Tahamina Bibi. Therefore, we are of the considered view that the Complainant is not entitled to get any relief in this case.
Reasons for delay : The complaint case was filed on 23.11.16 and admitted on30.11.16. This Forum has taken endevour to dispose of the case as expeditiously as possible as per Section 13(3A) of the C.P. Act, 1986 and the day to day orders will speak for itself.
In the result, the Complaint case fails.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby dismissed on contest against the Ops without any order as to costs.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action as per rules. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
