Ld Advocates for the complainant and OP are present. Judgement is pronounced in open Commission in 5 pages 3 separate sheet of papers.

BY - SRI ASISH DEB, PRESIDENT

The brief facts leading to this  complaint are that Smt. Kabita Bera is representing  her husband Shasanka Bera ,who is in very serious condition and now he is bed ridden. He is a permanent resident of  the above address and a poor bonafide consumer under  Dr. Subhajit  Tripathi,   Dr. S.K. Chakraborty & Dr. T.K. Maity are the Doctors of the above noted address. The complainant’s husband Shasanka Bera has been suffering from high fever and cough since 22.10.2017.The complainant went with her husband Shasanka Bera to Dr. Subhajit Tripathi’s chamber at Secure Medicial Hall for treatment on 22.10.2017. Doctor examined and advised some test and some test and some medicines. As per direction the complainant took him for test an Analysis (advance pathology & Consultation Centre) on 22.10.2017. On 25.10.2017 Dr. S.K. Chakraborty & Dr. T.K. Maity gave the report with original diseases in FNAC from Right Cervical Lymph Node which smears show high cellularity with focal areas of caseation impregnated with epitheloid cells, many are degenerated with macrophages in a high lymphocytic background. The complainant went to Dr. Subjhajit Tripathi chamber on 27.10.2017 with test report. After seeing that report the Dr. Subhajit Tripathi found the original diseases and ADVICEOD FOR T.B TREATMENT ON GOVT. HOSPITAL FOR BETTER TREATMENT. The complainant went with her husband in Govt. Hospital for T.B treatment. After treatment the patient condition did  not get stable. The complainant went to Dr. Subhajit Tripathi chamber on 12.11.2017 and said about patient present serious condition. After hearing he said the patient will slowly cure completely. The patient condition was continuously deteriorated. After seeing this serious condition the complainant went to Dr. Subhajit Tripathi chamber on 23.02.2018. Doctor examined said patient and referred to any cancer hospital, however the complainant took the patient to the SAROJ GUPTA CANCER CENTRE AND RESEARCH INSTITUTE, MAHATMAA GANDHI ROAD, THAKURPUKUR, KOLKATA-700063 ON 28.02.2018. The medical test and biopsy report on 28.02.2018 (histopathology Cytopathology report) done at SAROJ GUPTA CANCER CENTRE AND RESEARCH INSTITUTE  confirmed the DIFFUSE LARGE B CELL, LYMPHOMA, GCT TYPE WITH EXPRESSION OF BOTH BOCL12&C-MYC”. Camo therapy  treatment  is going on to the patient still now. Had Dr. S.K. Chakraborty & Dr. T.K. Maity been careful and cautious and had they followed the basic guidelines the symptoms would have been  noticed at very early stage and had the O.P  adopted the appropriate line of treatment the life of the patient might not be put under serious condition. Had Dr. S.K. Chakraborty & Dr. T.K. Maity adopted the appropriate line of diagnosis the life of the patient might not be put under serious condition. The cause of action of this case started on 25.10.2017 i.e. from the date of preparation of erroneous test report by Dr. S.K. Chakraborty & Dr. T.K. Maity and it continued till 28.02.2018 i.e. till the erroneous treatment done by O.P  Dr. Subhajit Tripathi. The gross medical negligence and deficiency in service of O.P. not only put the life of the patient under threat but also cause a serious mental agony to her whole family including the complainant and till date a sum 3 lacks (Approx) has already been spent by the complainant for the cause of wrong and misdirected line of treatment and report given by the  doctors. Therefore, the complainant hereby prefers this complain before ld. Commission along with the prayer for directing the op to Pay a sum of Rs. 9,90,000(Nine lacks ninety thousand only) + interest upto date from the date 25.10.2017 towards compensation + Litigation cost Rs.1,00,000/- total Rs. 10,00,000/- (Ten lakh only).

        It is worthy to be noted that the complainant filed this case against three Doctors namely, Dr. Subhajit Tripathi, Dr. S,.K. Chakraborty and Dr. T.K. Maity .Having received notices all the 3 Doctors appeared and resisted the claim of the complainant by submitting separate three sets of written versions. In course of running trial of this case Dr. S.K. Chakrabartty and Dr. T.K. Maity died. On the prayer of the complainant the name of Dr. T.K. Maity and Dr. S.K. Chakrabartty were expunged from the cause title of the complaint vide order dt. 17.11.2022 and 07.03.2024 respectively. Finally, Dr. Subhajit Tripathi , the remaining OP contested the case.

        In his written version Dr. Subhajit Tripathi, OP has stated interalia; that the case is not maintainable in facts and in law, hence, it is liable to be dismissed. The complainant has no cause of action to file the instant complaint, so it is liable to be dismissed. The O.P. has no knowledge about the statements made in para No. 1, 3 by the complainant. The O.P admitted that the statements made in para no. 4 of the written complainant and after examining the same advised for some test of FNAC and some medicine on 22.10.2017. As per advise of the O.P the patient party made test in a laboratory namely “Analysis(Advance pathology & Consultation Centre)” as per their choice. The patient party on 27,.10.2017 came before the chamber of the O.P with FNAC report the report reflecting with impression that “the Cytomorphologic features are suggestive of Granulomatous Lymphadinitis(Koch’s)”which means that the patient was suffering for TB symptoms. TB  also known as Koch’s means the name who discover the TB bacteria. It is admitted that the patient was referred by the OP No. 1 to a Govt. Hospital for TB treatment because no private treatment is present in India now. The patient again came to the OP  for further treatment on 23.02.2018 and after examining the patient advised him for fresh FNAC test and on examine the report dated 25.02.2018 of SREE AUROBINDA, Padumbasan Tamluk, it was  found that “cervical lymph node (Rt) suggestive of Lymph proliferative Disorder. As a result the OP advised the patient to go to any cancer hospital without delay. Thereafter the OP has no knowledge about the condition of the patient because the patient did not come further for treatment. The O.P did not make any erroneous treatment on the basis of FNAC report. The OP  denied the statements made in para 12, 13, 14 by the complainant. It is stated that the patient came to the OP with cervical lymphadenopathy and examining the same advised for FNAC test. On next visit after perusal of FNAC report it is found that the patient was suffering “tuberculous granulomatous disease. As per RNTCP rule of Indiana Government the OP send the patient to nearest health centre for direct supervision and treatment of TB. So the OP never treated the patient for TB and did not provide any medicine for TB. It is found in the RNTCP TB identity card of Sasanka Bera “Microbiologically confirmed” the patient was carrying Granulomatusd Lymphadenitis means TB and treatment was done from 06.11.2017 to 28.02.2018 at Government Health Centre and expert doctor was there for particular such type of disease. Thereafter the patient came before the OP and says that he is under treatment of anti-TB drugs but no result he has also develop Axillary/Inguinal Lymphodenopathy the OP advised for further FNAC test. And after perusing the report it is found that lymph reticular ds-positive(one kind of cancer of lymph node) and the OP asked to contact oncologist immediately for cancer treatment. The doctor will see the result of the investigation/report and he will treat accordingly and advised for proper treatment.  The OP has treated the patient according to the FNAC report of cervical lympho node. Therefore the OP has taken action according to the report available at earliest possible. The suggestion of the OP was to Re-examination of the Slide (FNAC) from any expert (Chosen by the Forum). The patient being misguided has brought by this case without any sufficient cause moreover all precautions all ethics and norms have been properly maintained and it rendering the service and no negligence on the part of the OP No.1 and the patient did not follow up any advice further after being treated by Koch. The allegation as made in the complaint has no proof and will be evident of the medical report. Being harassed, the OP  demands costs of Rs. 1,00,000/-

Upon pleadings of the parties ,the following points for determination are framed.

Points for determination are:

     1. Is the case maintainable in its present form and in law?               

     2. Is the complainant entitled to the relief(s) as sought   for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully assessed the evidence on record keeping in mind the facts put forth by the rival parties and anxiously considered the arguments of the Ld Advocates for the parties.

The complainant has got the onus to prove her case as per law.  On evaluation of the material on record, it appears that the complainant went with her husband Shasanka Bera to Dr. Subhajit Tripathi’s chamber at Secure Medicial Hall for treatment on 22.10.2017. Doctor examined and advised some test and some medicines. As per direction the complainant took him for test. Dr. S.K. Chakraborty & Dr. T.K. Maity examined and provided the Diagnostic Reports. It is the allegation of the complainant that  Dr. S.K. Chakraborty & Dr. T.K. Maity did not adopt the appropriate line of diagnosis ; resultantly  life of the patient was put under serious condition. It is further allegation of the complainant that Dr. Subhajit Tripathi consulted those reports and continued with wrong treatment . In course of trial those Dr. S.K. Chakraborty & Dr. T.K. Maity died , their names have been expunged from the cause title of the complaint on the prayer of the complainant as no actionable claim remained against them.

 Now , the grievances of the complainant remains against  Dr. Subhajit Tripathi only. It is evident that the complainant has failed to allege specifically or adduce cogent evidence as to how  there was a breach of duty of care with respect to his treatment on the part of Dr. Tripathi . It appears that the OP did not treat the patient for TB and did not provide any medicine for TB. It was  found in the RNTCP TB identity card of Sasanka Bera “Microbiologically confirmed” the patient was carrying Granulomatusd Lymphadenitis means TB and treatment was done from 06.11.2017 to 28.02.2018 at Government Health Centre and expert doctor was there for particular such type of disease. Thereafter the patient came before the OP. ; the OP advised for further FNAC test. And after perusing the report it is found that lymph reticular ds-positive (one kind of cancer of lymph node) and the OP asked to contact oncologist immediately for cancer treatment. The OP has treated the patient according to the FNAC report of cervical lympho node. Therefore, the OP has taken action according to the report available at earliest possible. Doctor owes a duty of care in deciding what  treatment  to give and merely choosing an alternative course of action does not create a presumption as to dereliction of duty any absence of any cogent proof to the contrary.  The evidence of Dr Ashoke Kumar maity ,BMOH , GARHMOYNA,BPHC, the pw-2  has not been able to establish that there was any negligence  or lack of  duty of proper care on the part of  Dr. Tripathy. The documents produced for evaluation do not show any omission in the manner of treatment undertaken by Dr. Tripathy. In all, the complainant has failed to prove the elements of Deficiency of Service against Dr .Subhajit Tripathy.

Another aspect of the case is that Smt. Kabita Bera is representing  her husband Shasanka Bera who is in very serious condition and now he is bed ridden as averred. She has filed this case in representative capacity ; but she has not filed any Power of Attorney to that effect. She herself is not the consumer. She does not fall in the purview of definition of Complainant either under section- 2( 2)(b) of the C P Act 1986 ( since repealed ) or under section- 2(5) of the C P Act ,2019. On that score the instant case is also not maintainable in its present form and in law. In totality of our above observation, the complainant is not entitled to get any relief in this case.

Accordingly both the points for determination are decided against the complainant. The case is liable to be dismissed.

Hence, it is

O R D E R E D

That the CC/152 of 2018 be and the same is dismissed on contest against the OP. No order as to costs is passed.

Let a copy of the judgment be supplied to each of the complainant and the OP free of cost.