Ld. Advocatse are present. Judgement is not ready. It is delivered in open Commission in 8 pages 4 separate sheet of papers. 

BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant case is that the complainant is a permanent resident of the above noted address and a citizen of India by birth, and his wife Mrs. Sabita Shee aged 50 years has become the victim of gross medical negligence and deficiency in service by the Ops and is now spending her life in a grave serious condition. In the beginning part of 2018, the Complainant’s wife Mrs. Sabita Shee started suffering from some thyroid gland problems, Neck swelling and thyroid pain etc. for which she consulted the OP No.1 doctor at his private chamber on 13.03.2018. The OP No.1, after examining the patient, asked for an USG of Neck, FNAC(Fine Needle Aspiration Cytology) test along with other pathological tests to the Complainant, she got done the examinations readily and the impression of the Reports revealed inter alia as follows:-USG of Neck-Dated 13.03.2018(Rukshi Diagnostic Centre) Impression-‘Complex Cystic Mass in Enlarged Left Lobe of Thyroid, Causing Mass Effect,   TIRADS IV. FNAC-Dated 15.03.2018(Rukshi Diagnostic Centre)..Impression-Colloid Goitre (TBSRTC_Cat-2) No malignant cells are seen.

        After perusing the said reports, the OP No.2 opined that the patient had to be operated immediately for partial removal of her thyroid, namely Hemithyroidectomy, and advised to the complainant to admit the patient at OP No.2’s Nursing Home immediately. The Complainant took the patient to the OP NO.2 Nursing Home where he was informed that the whole package for the said operation would be Rs. 55000/-.Hoping for a proper treatment and complete relief, the complainant arranged for the said amount of money and got her wife admitted at the said Nursing Home on 23.03.2018 under the OP no.1. It is mentioned that the Nursing Home and the OT was completely unhygienic, dirty and lacks the reasonable quality of service of its class, moreover the attitude and behavior of the untrained nurses and attendants were utmost rude. Moreover, the OP No.1 doctor, by his own, conducted the operation in such a hurried and haphazard way that left and incurable and life risking effect to the patient discussed below. However, the Complainant found no relief in his affected area of thyroid rather she developed vocal cord problems, Bilateral Vocal Cord Palsy, Breathing Problems etc. and his whole mouth got infected swallowed hugely and the patient could not take any solid food till date. Neither the OP No.1 nor the OP No.2 gave any further directions, advises etc. on the discharge certificate dated 27.03.2018 for follow up care, save and except prescribing some medicines, and also they did not bother to give any receipt for the money to the tune of Rs. 55000/- realized by them. Thereafter, as there was no relief, rather the physical and mental condition of the patient got worsen day by day, and she lost her normal speaking voice and became completely unable to take any solid food, she was taken to the OP No.1 again, but this time the OP No.1 showed his complete sorry face and expressed verbally that he cannot do any further treatment or operation to the patient and advised to the complainant to take the patient at any better centre. Thereafter, the complainant visited at ESIC-PGIMSR, ESIC Hospital at Joka, Kolkata-104 where she was admitted on firstly on 07.05.2018 for a total Thyroid ectomy and was discharged on 19.05.2018 and again on 18.12.2018 till 24.12.2018 for problems as’ vocal cord Abduction Palsy’ and Tracheotomy [putting separate tube in the neck from outside for breathing]. During her first admission there however she was found to have ‘No malignant cell’. Suddenly, the malignancy was detected and the patient was referred to a cancer hospital for radiotherapy and other treatment. The Complainant took his wife at Appollo Hospital at Chennai, where she was under treatment of the specialist doctors for treatment of Papilary Carcinoma. Till date, for the wrong treatment and operation by the Op no.1, in connivance with OP NO.2, a total of over 55000/- at the OP No.2 Nursing Home and at least Rs. 200000/- till date at Apollo Hospital at Chennai had already been spent by the Complainant, and still he is subjected to prolonged treatment, with gradual deterioration of her health conditions. The patient is actually counting her last few days. Had the Ops been careful and cautious, and had they followed the basic guidelines and medical norms, and had the Ops adopted the appropriate line of treatment, the life of Complainant might not be put under serious threat and his nose might not be left in such an open condition with almost regular bleedings and she would have been able to recover and to take solid foods, instead of his present “living-dead” condition. The gross medical negligence and deficiency in service of the Ops not only put the life of the Complainant under threat, but also caused a serious mental agony to the Complainant, and till date a sum of Rs. 5 lakhs(approx) have already been spent by the Complainant for the cause of wrong and misdirected line of treatment given by the Ops. Therefore, the Complainant hereby prefers this complaint before the Ld. Commission along with the prayers as follows. The cause of action of this case has started on and from 13.03.2018 i.e. from the date of first treatment by Ops and it continues till date. The prays for directing the Opposite Parties to pay a consolidated compensation of Rs. 18,00,000/- to the complainant for medical negligence, deficiency in service, mental agony, medical expenditures and to pay litigation cost of Rs. 10000/- to the complainant for conducting this case. And to pass such other  reliefs as the Ld. Commission may deem fit and proper.

Notices were duly served upon the ops calling upon them to answer the complaint. The ops have resisted the claims of the complainant by filing a written version thereto. Succinctly, put the contentions made can be delineated as follows: The OPs denied all the allegations contained in the complaint para wise  except those are specifically admitted in this written version or otherwise dealt with, and added that nothing stated in the complaint should be deemed to be admitted merely because the same is not specifically traversed. The Ops  herein  submit that  save and except the statements which are the matters on record all other statements as made in para no. 7,8,9,10,11,12 & 13 of the claim application are very much denied & disputed. The petitioner is put to the strict proof of such statements as made in these paras. It is very much false to state that nursing home and the OT was completely unhygienic, dirty and lacks the reasonable quality of service of his class, moreover, the attitude, the behavior of the untrained nurses and attendants were utmost rude or that the O.P No.1 doctor by his own conducted the operation in such a hurried and haphazard way that left an incurable and life risking effect to the patient or that the complainant found no relief in this affect ted area of thyroid rather she developed vocal cord problems Bilateral vocal cord palsy, Breathing problems etc. and his whole mouth got infected swallowed hugely and the patient could not take any solid food till date or that the O.P No.1 and O.P. No.2 gave any further directions, advises etc. on the discharge certificate dated 27/03/2018 for follow up care, save and except prescribing some medicines and also they did not bother to give any receipt for the money to the time of Rs. 55,000/- realized by them or that there was no relief rather the physical and mental condition of the patient got worsen day by day or she lost his normal speaking voice and became completely unable to that any solid food or she was taken to the O.P. No.1 and advised the complainant to take the patient at any better centre or that the complainant visited at ESICPGIMSR, ESIC Hospital at Jaka, Kolkata-104 where patient was admitted on 07/05/2018 for Thyroid ectomy and discharged on 19/05/2018 and again on 18/12/2018 to 24/12/2018 for problems as “Vocal Cord Abduction Palsy” and Tracheotomy “putting separate tube in the neck from outside for breathing or during her first admission there however she was found to have no malignant cell” or that suddenly the malignancy was detected and the patient was referred to a cancer hospital for radiotherapy and other treatment or that complainant took his wife at Appollo Hospital at Chennai where she is under treatment of the specialist doctors for treatment of papillary carcinoma or that due to wrong treatment and operation by O.P. No.1 in connivance with O.P. No.2 a total of over Rs. 55,000/- at the O.P. NO.2 Nursing Home and at least of Rs. 2,00,000/- till date at Appoll9o Hospital at Chennai has already been spent by Complainant or the patient is actually counting her last few days. All the statements as made in para No.-15,16,17 & 18 of the claim application are not admitted and the petitioner is put to the strict proof of all such statements as stated in those paras by valid documentary evidence. According to ops ,it is a fact  that patient Sabita Shee went to Dr. SoumikSaha on 13.03.2018 for treatment of thyroid gland problem and neck swelling after examination, the patient was diagnosed with thyroid swelling and also advised her to prepare USG of neck and FANC test of thyroid and other tests. There after O.P. No.1 had perused the all the report opined for operation of thyroid. The operation was performed on 23.03.2018 perfectly according to medical protocol and patient was stable, no wound, infection or mouth infection was present. The patient was discharged on 27.03.2018 in a stable condition. The O.P. No.1 advised the complainant for Histopathology/Cytopathology report of the operated thyroid specimen. Accordingly, the complainant went to Dr. Tribedi & Roy Diagnostic Laboratory for Histopathology/ Cytopathology report which was placed to O.P. No.1 and perused the report which shows papillary carcinoma (malignant cell) was present at left lobe of thyroid gland annexture-1 that report (Histopathology/Cytopathology report) was suppressed by the complainant. The O.P. No.1 referred the patient to higher centre for treatment of cancer thyroid. The patient never came up for follow up check up. The Nursing Home had provided very good service and homely atmosphere and there is no negligence in their service. There was no negligence of treatment or wrong treatment done by O.P. No.1 . The amount stated in para-19 was false, imaginary and excessive. The complaint is baseless, misconceived, harassing devoid of merit not maintainable and is liable to be dismissed.

               After careful consideration of the evidences presented and arguments made and presented in written form ,the following issues are framed  for consideration.

1. Whether the complainant is consumer under the CP Act 2019 and whether the complaint is maintainable against the ops ?

2. Whether the patient Ms. Sabita Shee was given treatment as per protocol and guidelines without any deficiency or negligence ?

3. What is the compensation to be given to the complainant ?To what other reliefs the complainant is entitled ?

Decision with reasons

In Re:. Issue No. 1

             Here in the instant case complainant is the husband of Smt. Sabita Shee , the victim patient consumer . Now ,the question arises as to whether a husband can file complaint on behalf of his wife consumer, since alive  ;the answer would be ‘no’ in terms of section 2(5) of the C P Act 2019.SmtSabita is not a party complainant in this case. She has not filed any evidence on affidavit in this case too. The complainant has got no locus standi to file the instant case on behalf of his wife consumer under the provision of said act. As such the case is not maintainable in its present form and in  law.

In Re: Issues no- 2

In course of arguments, the counsel for the complainants has made the of following submissions. Duty of care of a doctor starts from the time he/she accepts the patient for treatment. Had the Ops been careful and cautious, and had they followed the basic guidelines and medical norms, and had the Ops adopted the appropriate line of treatment, the life of Complainant might not be put under serious threat and his nose might not be left in such an open condition with almost regular bleeding and she would have been able to recover and to take solid foods, instead of his present “living-dead” condition. The gross medical negligence and deficiency in service of the Ops not only put the life of the Complainant under threat, but also caused a serious mental agony to the Complainant, and till date a sum of Rs. 5 lakhs(approx) have already been spent by the Complainant for the cause of wrong and misdirected line of treatment given by the Ops. The op-1 did not advise the patient for further check up with date in the discharge summary. He did not refer the patient in time. He delayed the same by neglecting to examine the HE  report in time. He manufactured a prescription ,which was supposed to remain in the custody of the patient and submitted it to cover up his negligent act. Therefore ,it is submitted that the complainant is entitled to get the reliefs as prayed for.

Per Contra: The Ld Advocate for the ops has advanced his argument stating that the operation was performed on 23.03.2018 perfectly according to medical protocol and patient was stable, no wound, infection or mouth infection was present. The patient was discharged on 27.03.2018 in a stable condition. The O.P. No.1 advised the complainant for Histopathology/Cytopathology report of the operated thyroid specimen. Accordingly, the complainant went to Dr. Tribedi & Roy Diagnostic Laboratory for Histopathology/ Cytopathology report which was placed to O.P. No.1 and perused the report which shows papillary carcinoma (malignant cell) was present at left lobe of thyroid gland annexture-1 that report (Histopathology/Cytopathology report) was suppressed by the complainant. The O.P. No.1 referred the patient to higher centre for treatment of cancer of thyroid. The patient never came up for follow up check up. The Nursing Home had provided very good service and homely atmosphere and there is no negligence in their service. There was no negligence of treatment or wrong treatment  done by O.P. No.1 .  The complaint is baseless, misconceived, harassing devoid of merit not maintainable and is liable to be dismissed

We have given thoughtful consideration to the rival submissions of the Ld Counsel for the parties in the light of the evaluated evidence on record. The case at hand may be analyzed in the touchstone of reasonable care, knowledge and skill in treatment of patients by the doctors.

Now, it appears that the complainant has not averred in the complaint specifically which part of the treatment was wrong or it was done without due care and beyond medical protocol. He has not been able to prove any negligence in treatment or any wrong treatment performed by the op-1 at all. It appears from the Annexure-A .the HISTOPATHOLOGY /CYTOPATHOLOGY report was prepared only on 04.04.2018. It is the case of the complainant that the patient  was taken to the OP No.1 again, but this time the OP No.1 showed his complete sorry face and expressed verbally that he cannot do any further treatment or operation to the patient and advised to the complainant to take the patient at any better centre. Here, the complainant has not stated any specific date  on which the patient consulted the doctor after discharge or with the HISTOPATHOLOGY /CYTOPATHOLOGY report. There is no evidence  led by the complainant actually on which date the report was collected by him or by the ops. There is no clinching evidence on  record actually who was supposed to collect the report . After discharge the patient does not remain under he control of the doctor who treated him or her. It is true that there was no scope to visit the doctor before availability of the HISTOPATHOLOGY/CYTOPATHOLOGY REPORT. So we do not find any gross negligence on the part of the op-1 for not advising the next date for visit pending HISTOPATHOLOGY /CYTOPATHOLOGY report because the next of visit was totally dependent on the availability and collection of the HISTOPATHOLOGY /CYTOPATHOLOGY report ; it has not been stated or proved by the complainant that the liability of collection of report was upon the  ops . It is also not evident as to when and who collected the HISTOPATHOLOGY /CYTOPATHOLOGY repot. So, on which date the patient was be referred to Medical college was totally dependent upon said aspects . Here in this case complainant asserts that  patient was referred by the doctor only on 20.04.2018 and according to op-1  he issued a Prescription by referring the patient on 09.04.18. In this regard it is the contention of the complainant that the op-1 has manufactured the document. So it is the burden of the complainant to prove the said allegation. It can not be ignored that Nowadays Photocopy of the prescription is kept from the end of the Nursing Home, the document/ prescription dated 09.04.2018 filed by the op-1 is a photocopy ; so without proof no body should be branded with  manufacturer of document for the purpose of the case. .Even if it  is  accepted that the op-1 referred the patient on 20.04.2018 it has not been explained or proved with whom the HISTOPATHOLOGY /CYTOPATHOLOGY report was after .04.04.2018.There is no evidence that the doctors of ESIC-P,GIMSR, ESIC Hospital at Joka, Kolkata-104 where she was admitted on firstly on 07.05.2018 for a total Thyroidectomy and discharged on 9.05.2018 and again on 18.12.2018 till 24.12.2018 and Appollo Hospital at Chennai   opined that op-1 performed wrong treatment. Rather it appears that she was admitted in  ESIC-P,GIMSR, ESIC Hospital at Joka, Kolkata-104  firstly on 07.05.2018 for a total Thyroidectomy and discharged on 19.05.2018 and again on 18.12.2018 till 24.12.2018  for problems as’ vocal cord Abduction Palsy’ and Tracheotomy [putting separate tube in the neck from outside for breathing]. During her first admission there  she was found to have ‘No malignant cell’. Suddenly, the malignancy was detected and the patient was referred to a cancer hospital for radiotherapy and other treatment. The Complainant took his wife at Appollo Hospital at Chennai, where she was under treatment of the specialist doctors for treatment of Papilary Carcinoma. So it can not be held that despite having detection of‘ ‘ malignant cell’ or of Papilary Carcinoma the op-1 did the surgery. The op-1 conducted the treatment according to his due diligence and skill.

In Martin F.D.’ Souza vs. Mohd. Ishfaq on 17 February, 2009 Hon’ble Supreme Court observed

“112.  It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is,”

 In Kusum Sharma vs Batra Hospitals Hon’ble Supreme Court held

“89. While deciding whether the medical professional is guilty of medical negligence following well known principles must be in view:-

Negligence is not breach of a duty exercised by omission to do something which is a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable  degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonable competent practitioner in his field.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. 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. 

        In Dr. Deepak Kumar Satsangi vs. Sanjeevaan Medical Research. In this case after quoting exhaustively from Jacob Mathew case, Kusum Sharma case, Kusum Sharma case and Martin F.D. Souza the Hon’ble National Consumer Disputes Redressal Commission held that “in view of Supreme Court holding that court can not be an expert in such cases and the opinion regarding medical negligence given by an independent Board shall have more credibility” and dismissed the complaint of medical negligence as not established.

 In the case on hand no expert medical board opinion has been obtained. So, mere allegation of the complainant without expert opinion the ops can not be held liable for mischief of negligence.

With regard to the professional negligence, it is now well settled that a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have processed or, he did not exercise, with reasonable competence in the given case the skill which he did not possess. It is equally well settled that the standard to be applied for judging whether the person charged has been negligent or not’ would be that of an ordinary person exercising skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.” In the instant case the op-1  possessed the requisite skill ; he  exercised his skill with reasonable competence which he possessed.  Moreover, there is no specific or cogent evidence of unhygienic, dirty and unhealthy atmosphere being maintained by op-2 ; mere allegations can not be taken as gospel truth, there should be reliable evidence to that effect which is lacking in this case. In totality of our observations, it is evident that the complainant has failed to prove any element of negligence or deficiency of service on the part of the ops in this case.

In Re:. Issue No.3

In view of our observations with regard to foregoing issues ,the complainant is not entitled to get any relief as prayed for in this case

All the issues are decided against the complainant accordingly.

Thus, the case fails.

Hence, it is

O R D E R E D

That CC/191 of 2020 be and the same is dismissed on contest. No order as to costs is passed.

Let a copy of the judgment be supplied to each of the parties free of cost