Date of Filing: 02-09-2014 Date of Final Order: 29-06-2017
Sri Gurupada Mondal, President.
This is an application u/s 12 of CP Act filed by Naresh Chandra Sarkar against Dr. Subhas Chandra Saha, the Manager, Shila Nursing Home & Diagnostics and P.K. Saha Hospital and Research Centre and the OP the Branch Manager praying for direction to pay a sum of Rs.1,00,000/- for medical negligence and deficiency of service, Rs.2,47,212/- for nursing home charges, Cooch Behar and Vellore and other expenditures, Rs.10,000/- litigation cost and Rs.50,000/- for mental pain and agony.
The case of the Complainant, in short, is that he suffered unbearable pain in his abdomen and to pass little urine and as such, he consulted with Dr. Subhas Chandra Saha, the OP No.1 on 05.05.14, who examined him and advised the family members of the Complainant for admission immediately as his condition was serious. Accordingly, as per advice of the OP No.1, he was admitted at OP No.2 Nursing Home. At the time of admission, the family members of the Complainant requested the OP to consult with specialist Doctor, if necessary. The family members of the Complainant also assured to inform of transfer for better treatment. After thorough examination of Ultra Sound, blood test, x-ray, ECG, Holter Monitor, endoscopy, colonoscopy etc, Dr. Pavel Barman, M.D. (Radiologist) detected on 07.05.14 “Medical Renal Disease Cystitis with UB debris. After seeing the report of OP No.1 administered some medicines and underwent dialysis treatment but the Complainant did not feel comfort of complete cure. Moreover, the Complainant sustained abdominal pain and to pass blood during urine and sometimes suffering with fever. Thereafter, the Complainant explained his pain and suffering for several times and the OP No.1 pacified him that the abnormality would be stopped automatically with the passage of time.
Further case of the Complainant is that his condition was deteriorating gradually and the OP No.1 examined the complainant and advised to undergo Ultrasonography of KVB (Sereening) to ascertain the function of kidneys and ultrasonography was done by Dr. Sanjeet K. Oram, M.D. (Radiologist) who detected Medical Renal Disease on 16.05.14. Mild right side Hydro-uretero-nephrosis, UB wall the evening……? Cystitis. On the same date, the OP No.1 discharged the Complainant from the Nursing Home (OP No.2) after receiving of Rs.61,670/- and prescribing some medicines but the Doctor did not issue Discharge Certificate.
Further case of the Complainant is that the Complainant and his family members finding no other alternative went to Christian Medical College (CMC), Vellore n 03.06.14 and consulted with Dr. Nitin S Kekre DNB (UROL) Department of Urology Unit II CMC, Vellore and Dr. Nitin S Kekre, DNB (UROL) and other six Doctors asked him to undergo several tests and diagnosed that the Complainant was suffering from STRICTURE URETHRA STATUS POST SUPRAPUBIC CATHETERIZATION HEMATURIA UNDER EVALUTION TYPE 2 DM – ACUTE CHRONIC CKD.
It is also alleged by the Complainant that he was admitted at CMC, Vellore under the supervision of Dr. Nitin Kekre DNB (UROL) and performed cystocopy proceed EIU on 23.06.14 and he was admitted there from 20.06.14 to 26.06.14.
Further case of the Complainant is that the OP No.1 wrongly diagnosed the disease on the basis of wrong report issued by OP No.2 and the OP No.2 had no proper facility to treat a kidney disease and the OP No.1 did not refer him for better treatment and the same was negligence and deficiency of service on the part of a Medical Practitioner. Due to such negligence and deficiency of service on the part of OP No.1 & 2, the Complainant had to suffer irreparable loss, mental pain, agony and monetory loss of Rs.1,62,212/- and Rs.85,000/- for other expenditures.
It is further alleged that the Complainant sent a letter to the OP Nio.2 on .6.08.14 with a request to supply treatment sheets including the Test reports of the Complainant. The OP No.2 received the said letter on 08.08.14 but did not pay any attention.
Alleging the above averments, the Complainant has filed this case for proper reliefs.
Summons upon the OP No.1 and 2 were duly served and they appeared before this Forum to contest this case on 13.10.14 but they did not file w/v up to 25.05.17 and the said Ops filed w/v on 26.05.17 alongwith a prayer to vacate the ex-parte hearing order and to accept the w/v. The OP No.1 and 2 also prayed for a chance to contest this case. This Forum was pleased to reject the said petition on the ground that there was no explanation of delay as to hy the w/v was not filed within stipulated period. The case was heard ex-parte against the OP No.1 and 2.
The OP No.3 in contesting this case has filed w/v denying all material allegations contending inter-alia that the instant case is not maintainable. The Complainant has no cause of action to file this case. The case is barred by the law of limitation and non-joinder and mis-joinder of necessary parties. According to OP No.3, the Complainant is not a consumer at all.
Specific case of the OP N o.3 is that OP N o.1 and 2 are covered under the professional indemnity policies for the Doctor and Medical Establishment subject to terms and conditions of the said policy. It is also alleged that the Complainant had not filed the connected Medical Papers to adjudicate this case and there is no expert opinion of medical negligence.
Further case of the OP No.3 is that the every person who used to take the Insurance Policy should obey the terms and conditions of the said policy and the OP No.1 and 2 violated the terms and conditions 10.1 of the referred insurance policy. The OP insurer had no liability to pay in respect of any act or any act committed in violation of any law or ordinance.
It is also alleged that the alleged treatment of the Complainant was not covered under the Insurance Policy taken by the OP No.1 and 2. The OP No.1 violated the terms and conditions No.9.1 and 10.1 of professional indemnity. Complainant Naresh Chandra Sarkar was treated by different Doctors at different Medical Institutions and obtained the papers for the purpose of this case. The OP No.1 violated the terms and conditions of the policy. On the basis of the aforesaid facts, the OP No.3 prays for dismissal of the case with costs.
In the light of the contention of both the parties, the following points necessarily come up for consideration to reach a just decision.
POINTS FOR CONSIDERATION
1. Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
4. Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1.
It has been alleged by the Complainant that he suffered unbearable pain in his abdomen as also pass little urine and consulted with the OP No.1 on 05.05.14 and as per advice of the OP No.1, he was admitted at OP No.2 Nursing Home. It is evident from the evidence on record that the Complainant was admitted there from 05.05.14 to 16.05.14 and Complainant paid for the same to the OP No.1 and 2. The OP No.1 and 2 gave medical services to the Complainant. Hon’ble Supreme Court has held that Medical Services including para-medical, diagnostic and surgical services come under the purview of services.
The following conditions are to be satisfied to become a consumer.
- There must be a sale transaction in between the seller and buyer.
- It must be of goods.
- It must be for a consideration.
- It must have been paid or promised or partly paid or partly promised or any other system of deferred payment.
- The user may also be a consumer where such use is made with the approval original buyer.
From the evidence on record, we find that the consumer for the purpose of services means any person, who hires or avails any services for consideration and includes any beneficiary of services other than the hires or users provided that such services are availed with the approval of the hirer. Medical services comes under the purview of services and the Complainant obtained the said services for consideration and as such the Complainant is a consumer as per provision U/S 2(1)(d) of the C.P. Act, 1986. This point is decided in favour of the Complainant.
Point No.2.
The Complainant is the resident of Cooch Behar. The O.Ps are the resident of Cooch Behar and their offices are situated within Cooch Behar district. Therefore, this Forum has territorial jurisdiction to try this case. The pecuniary jurisdiction of this Forum is of Rs.20,00,000/- but the claim of the Complainant is much less than the prescribed limit. Hence, this Forum has pecuniary as well as territorial jurisdiction to try this case. This point is decided in favour of the Complainant.
Point No.3 & 4.
Both the points are taken up together for consideration of discussion as well as the points are related with each other.
It is the case of the Complainant that he suffered unbearable pain on his abdomen and passing little urine for which he consulted with the O.P. No.1 on 05/05/2014 and as per his (O.P. No.1) advice he was admitted at the O.P. No.2, Shila Nursing Home. After his admission, ultrasound, blood test and other tests were done on 07/05/2014 and Dr. Pavel Barman, MD (Radiologist) detected – Medical Renal disease cystitis with UB debris. It is the case of the Complainant that Dr. Subhas Ch. Saha (O.P. No.1) administered medicines and undergo dialysis treatment but the Complainant did not feel comfort of complete cure. He was further suffering from abdominal pain and to pass blood in the urine and sometimes suffering with fever. According to the Complainant that the matter was explained to the O.P. No.1 who disclosed that nothing was abnormal and it would be automatically stopped due to passage of time and gave some medicines but his condition was not improved. It is also the case of the Complainant that the O.P. No.1 advised the patient to undergo ultrasonography of KUB test to ascertain the functioning the kidneys. Dr. Sanjeet Kr. Oraon, MD (Radiologist) detected – medical renal disease – mild right side – Hydro uretero – nephrosis UB wall thicking - ? Cystitis ultrasonography was done on 16/05/2014. According to the Complainant that on 16/05/2014 he was discharged from the nursing home after receiving bill of Rs.61,670/-.
It is the further case of the Complainant that after receiving the ultrasonography KUB (screening) the Complainant along with his family members rushed to C.M.C., Vellore on 03/06/2014. A medical team consisting of six members of CMC after several tests diagnosis that the Complainant was suffering from STRICTURE URETHRA STATUS POST SUPRAPUBIC CATHETERIZATION HEMATURIA UNDER EVALUTION TYPE 2 DM – ACUTE CHRONIC CKD. The Complainant was admitted at CMC, Vellore under the supervision of Dr. Nitin Kakre, DNB (URLO), who performed cystocopy proceed EIV on 23/06/2016 and he was admitted there from 20/06/2014 to 26/06/2014. According to the Complainant that Dr. S.C. Saha wrongly diagnosed the disease of the Complainant and the O.P. No.2 issued a wrong report. It is also alleged that the O.P. No.1 had no proper qualification to treat the Complainant.
Let us see how far as the Complainant has able to prove his case. It has been alleged that the Complainant was admitted at Shila Nursing Home under the O.P. No.1, Dr. Subhas Ch. Saha from 07/05/2014 to 16/05/2014. But the Complainant has failed to produce any treatment sheets and bed head ticket before this Forum. The Complainant has produced statement of account issued in favour of the Complainant by the O.P. No.2 which reveals to us that the Complainant was admitted in the O.P. No.2, nursing home from 05/05/2014 to 16/05/2014 and paid a bill of Rs.60,000/- for his admission. Therefore, it is established that the Complainant was admitted at the O.P. No.2, nursing home from 05/05/2014 to 16/05/2014. The Complainant has produced one ultrasonography report of whole abdomen and KUB. It is evident from the said reports that the O.P No.1 referred the Complainant for ultrasonography of whole abdomen and KUB (screening) on 07/05/2014 and 16/05/2014. The said ultrasonography was done at the O.P. No.2, nursing home and diagnostics. From the unchallenged evidence of the Complainant along with two ultrasound reports and statement of the account of the Complainant issued ny the O.P. No.2, nursing home, we hold that Dr. Subhas Ch. Saha treated the patient i.e. the Complainant from 05/05/2014 to 16/05/2014.
The Complainant has alleged that he was not supplied with the bed head ticket, admission sheet, all treatment sheets including the test reports. We find from the ‘Annexur-D’ that the Complainant sent a letter to Dr. S.C. Saha with a request supply the copy of Admission Sheet, BHT, whole treatment sheets and test reports of Naresh Ch. Sarkar, who was admitted at the O.P. No.2, nursing home for the period from 05/05/2014 to 16/05/2014. The O.P. No.1 received the said letter on 08/08/2014. But we find from the evidence on record that the O.P. No.1 did not supply the said Admission Sheet, BHT, test reports and all treatment sheets. On the other hand, the O.P. No.1 after appearing in this case, filed a petition and asking the Complainant to file documents regarding treatment of Naresh Ch. Sarkar, the Complainant. The O.P. No.1 is a doctor and the O.P. No.2 is the Nursing Home. Clause 3.1 regarding maintenance of medical records issued by West Bengal Medical Council that every doctor registered with the West Bengal Medical Council, should maintain his medical records pertaining to his patients for a period of three years. If any request is made for medical records either by the patients/authorized Agent/West Bengal Medical Council or Legal Authorities involved, the same may be duly acknowledged and documents should be issued within 72 Hrs. The O.P. No.1 received the said letter of request of the Complainant to supply the medical documents but the O.P. No.1 did not supply the same. Moreover, the O.P. No.1 wants to shift the liability upon the Complainant. Such type of conduct of the O.P. No.1 amounts to unfair trade practice as well as deficiency of service. The O.P. No.1 cannot evade from his liability to supply the said treatment sheets, medical reports and BHT.
The Complainant has failed to produce the treatment sheets, BHT and the medical reports before this Forum. The O.P. No.1 did not supply the above documents to the Complainant inspite of request by the Complainant. In such circumstances it is very much difficult to prove the negligence of the doctor, O.P. No.1. This Forum has to depend upon the documents as produced by the Complainant. It is well established that the Complainant was admitted in the nursing home i.e. the O.P. No.2 under the care of Dr. Subhas Ch. Saha with a history of abdomen pain with little pass of urine. There is no documents before this Forum, what service the O.P. No.1 rendered to the Complainant. Now two ultrasonography reports and statement of the account of expenditure of the O.P. No.2, nursing home, are available. At the same time the Complainant has filed the Discharge Summary of the Complainant issued by CMC, Vellore, where the Complainant was last treated. The documents issued by the O.P. No.2 shows ultrasonography of whole abdomen and ultrasonography of KUB were done at the O.P. No.2, nursing home and Dr. S.C. Saha, the O.P. No.1 referred for ultrasonography of whole abdomen and ultrasonography of KUB. As per the statement of account of the Complainant issued by the O.P. No.2 shows that the patient/Complainant was given Dialysis and for such Dialysis he paid Rs.14,720/-. As per the documents placed by the Complainant, it reveals to us that the Complainant was suffering from kidney problem for which he was admitted in the Nursing Home under the care of Dr. S.C. Saha, who has qualification of MBBS, MD, MRCP, FRCP, FCCP and FICA. Dr. S.C. Saha is neither a Nephrologist nor an Urologist. From the statement of account of expenditures (Annexure-C), it reveals to us that the patient/Complainant was given Dialysis and for that reason he was charged of Rs.14,720/-. There is nothing mentioned in the said Annexure how many days the Complainant/patient was given Dialysis. Considering the charges taken for dialysis, we have hold that the patient was given Dialysis for several occasions. It is evident from the ‘Annexure-C’ that Dr. Vishal Golay (Nephro) visited the patient for one day, but the patient was admitted in the O.P. No.2, nursing home for 12 days i.e. from 05/05/2014 to 16/05/2014. The condition of the patient was not improved during the said period as it reveals from the USG, KUB report of the Complainant. The O.P. No.1 himself knew that the Complainant was suffering from kidney disease but the Nephrologist visited him for one day and Rs.600/- was charged. R.M.O visited 11 days and Rs.2,200/- was charged for this.
As such we are constrained to hold that the O.P. No.1 had no proper qualification to treat the Complainant, but he treated the Complainant in several occasions. The help of the Nephrologist was not taken at the time of giving Dialysis to the patient/Complainant. If a doctor having no proper qualification practicing treatment of kidney disease, then such practice of the doctor amounts to deficiency of service. In this case, the O.P. No.1 had no proper qualification to treat a patient of kidney disease for several days, then his service is deficiency of service and as such the Complainant is entitled to get relief as prayed for.
Both the points are decided in favour of the Complainant.
Hence,
Ordered,
That the present Case No. CC/59/2014 be and the same is allowed in Ex-parte against the O.P. No.1 & 2 and dismissed on contest against the O.P. No.3 with cost of Rs.10,000/-.
The O.P. No.1 & 2 are hereby directed to pay a sum of Rs.1,00,000/- for medical negligence and deficiency of service, Rs.1,60,000/- for Nursing Home & Hospital charges and Rs.25,000/- for causing mental pain & agony and harassment.
The O.P. No.1 & 2 are also directed to pay the aforesaid sum jointly and/or severally within 30 days from this date, failing which the O.Ps shall have to pay Rs.50/- for each day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
Dictated and corrected by me.
