Date of Filing : 30.07.2013. Date of Final Order : 25.03.2014
The Case of the petitioner Smt. Jhuma Goswami, in brief, is that on 05.03.2012 she went to Dr. Debrata Bhattacharga (Proforma Opposite Party) for Consultation in respect of her Eye-Problem. The Doctor examined her and referred her to Dr. Supratick Banerjee and Dr. A.K. Singh for Endo DCR ( Dacryocystorhinostomy) Rt. vide Xerox of Prescription- (Annexure- A).
Accordingly, on 24.09.2012 he met the Opposite Party Nos.1 & 2 above for Endo DCR on 28.09.2012 she was admitted at “Anandalok Hospital and Neurosciences Centre”, under supervision of aforesaid two doctors of Siliguri and undergrone treatment till 29.09.2012 at the said Nursing Home. In the Discharge Certificate (Annexure- B), she was advised to report to Dr. S. Bhattacharya (Proforma O.P) for syringing.
After the D.C.R of her right eye there was no improvement; but was feeling pain and swelling inside corner of her right eye together with excessive tearing for which she reported to Dr. Banerjee and Dr. Singh who explained and stated that automatically it will stop with the passage of time and prescribed some medicines. Thereafter, she went to Dr. Bhatacharaya for Syringing on several occasions and Dr.Bhattacharaya, on the prescription, noted “Syringing Rt. NLP-partially blocked (Annexure-C) Prescription of Dr. Bhattacharaya.
On 01.11.2012, Dr Bhattacharaya issued a letter to Dr. Banerjee and Dr. Singh stating “This patient Jhuma Gaswami had undergone Endo DCR operation Rt. But it seems that her Narolacrimal passage is blocked. Repeated Syringing was done but the Passage was found to be blocked. As Such I requested you to kindly consider re-intervention”. The Complainant claimed the said letter as evidence of not maintaining preoperative and post operative case in respect of ENDO DCR (Dacryo cystorhinostomy) operation Rt. (Annexure – D ) Xerox of letter by Dr. Bhattacharaya.
The Complainant has alleged and agitated negligence and Carelessness of Dr. S. Banerjee and Dr. A.K. Singh in respect of said operation for improper steps, resulting to pain and swelling on her right eye together with tearing and for which she suffered mental pain and agony. She alleged negligence and deficiency in service to her by the aforesaid two Medical Practioners of Siliguri; but earmarked Dr. D. Bhattcharaya as Proforma Opposite Party. The aforesaid two doctors of Siliguri have been alleged to have unnecessarily harassed her due to lack of ordinary care and skill amounting to medical negligence in respect of the said operation. She claimed expense of Rs. 50,000/-(appx.) for her treatment at Siliguri vide- annexure-“E”.
Cause of action claimed w. e. f. 01.03.2012 to the operation period & post- operation period. She has claimed (1) Rs,1,00,000/- for deficiency in service and medical negligence, (2) Rs.2,00,000/- for post-operative complications, (3) Rs. 50,000/- for nursing home charges and misc. expenditure, (4) Rs. 10,000/- litigation cost and Rs.50,000/- for mental pain, agony and harassment besides, besides other relief(s) on the point of equity. The Petition of Complaint has been filed on affidavit (before Notary Public) enclosing xerox copies some documents marking ‘A’ to ‘E’.
She has also filed Agent-nama dated 26.07.2013, appointing Mr. Rabindra Dey, (Ld. Advocate) as her Agent for conducting the case.
Based on such petition of complainant DF Case No.80/2013 has been registered & after hearing, on the point of admission, Notice was issued upon the Opposite Parties fixing 22.08.2013 for S/R and Appearance.
On 22.08.2013, on behalf of Opposite Party No.2 Dr. A.K. Singh, who appointed Ld. Three Advocates namely (1) Shri Partha Pratim Sengupta, (2) Shri Shymalesh Biksh Ghosh, and (3) Shri Shymal Kr. Roy, as his Agents and Ld. Advocate Mr. Shymalesh Bikash Ghosh appeared and filed a petition for time to file W/V. The Notice upon the Opposite Party No.1 remained un-served, Notice sent to Opposite Party No.3 was returned by Process Server with note of refusal. As such the Proceedings against Proforma Opposite Party No.3 was taken up in Ex-parte Hearing and 09.09.2013 was fixed for S/R and appearance of Opposite Party No.1 and W/V by Opposite Party No. 2. On 09.09.2013 there was “Cease Work” of Ld. Advocates on the death of a Ld. Advocate and 30.09.2013 was fixed for Appearance / Written Version.
On the said date the Ld. Advocate filed a petition (said to be written version) of Opposite Party No.2 addressed to the President, D.C.D.R.F. Cooch Behar, after supply the Copy, to the Ld. Advocate Mr. Rabindra Dey for the Complainant. The Opposite Party No.1 Dr. Supratik Bandhopadhya, has appointing Ld. Advocates (1) Shri Debasis Roy Karmakar & (2) Shri Dhrubajyoti Karmakar, who appeared before this Forum and filed a petition for time to file W/V which was allowed, fixing 24.10.2013 for filing W/V by Opposite Party No.1. On that date the Ld. Agent of Opposite Party No.2 filed a petition for time, on the ground that the conducting advocate is out of station for two weeks and hence it is not possible to conduct hearing Arguments. Surprisingly, the date was for filing W/V by Opposite Party No.1, then wherefrom the matter of Argument came. Sri Debalok Sarkar, Ld. Advocate filed a petition on behalf of Opposite Party No.1 Dr. Supratik Bandhopadhaya, for time to file W/V. On 04.11.2013 the W/V of Opposite Party No.1, Dr. S. Bandhopadhaya has been filed by his Ld. Advocate, without service of copy to the Complainant. On 22.11.2013 all the parties, in contest, took time on various grounds to file Evidence on Affidavit.
On 02.12.2013 Evidence on Affidavit of Dr. Supratik Bandhopadhaya, Opposite Party No.1 and Evidence on Affidavit of Opposite Party No.2 have been filed; but the evidence of the Complainant has not been filed and a prayer has been submitted for time. However, the Forum fixed 24.12.2013 for hearing of Argument with liberty to file Evidence on affidavit by the Complainant and Written Argument, if any, by the Parties two days prior to 24.12.2013. On 24.12.2013 both sides Ld. Agents prayed for time for argument and 21.01.2014 was fixed for the purpose. On 21.01.2014 the Evidence-in- Chief by the Complainant has been filed on affidavit, after supplying the copy to the Ld. Advocate of Opposite Party no.1. The Ld. Advocate for the Opposite Party No.2 appeared but submitted nothing and as the Ld. Advocate for the Opposite Party No.1 filed an adjournment petition praying for time for argument. 13.02.2014 was fixed for argument. On that date the Ld. Advocates for the parties appeared and argument was heard in full, when for the Complainant Ld. Advocate filed 11 Sheets of Original Documents, in respect of treatment of the Complainant, under a “Firisti” which have been marked Exhibits 1 to 7,8,8/1,9 and 10 for identification.
It is pertinent to mention that the Proforma Opposite Party Dr. Debabrata Bhattacharaya, Eye-Specialist, who is the King-Pin of the episode in respect of referring the Complainant to Opposite Party No.1 and 2 at Siliguri has refused to receive the Notice and this Forum treated the said refusal as good service and treated him as an Ex-Parte. Thus, the Case of the Complainant, though banked upon Dr. Debabrata Bhattacharaya, whom the Complainant made Proforma Opposite Party, cannot be treated as such, mere a Proforma Opposite Party; but his involvement in respect of his reference to two documents by specific names of two doctors of Siliguri and without referring the patient (Complainant) to any Govt. Hospital calls for treating him as accomplice of the two doctors of Siliguri. Then who will prove the Prescription and opinion/request letter issued by him. However, on the other hand the Opposite Party No.1 and 2 could defend their case by W/V, Evidence; but failed to challenge authenticity and veracity of his opinion to decide the negligence/deficiency in service of Opposite Party No.1 and 2. Neither the Complainant nor the Opposite Parties and /or their Ld. Advocates conducted the case in favour of their respective parties had drawn attention of this Forum for steps to produce Dr. D. Bhattacharaya as a witness of this case, by deleting his name as the Proforma Opposite Party and calling him in the dock to adduce evidence in the case as a witness. In that case the two Opposite Parties could assail on contradicted point/points, if any, in their contention by Cross- Examination which is not specifically barred by law in the C.P. Act, 1986, rather Section 13(4)(i) provides the scope. Further, Section 3 of the Act speaks: Act not in derogation of any other law-The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Now, let us go through the written, evidence of the complainant and the documents filed. It appears that the evidence is almost replica of the complaint in brief and hence, it does not require to discuss again, to avoid duplication of work, as has been discussed in the initial stage; but it requires scanning and scrutiny with the original documents, filed and mark Exhibit- 1 to 7, 8, 8/1, 9 and 10. The main dispute in complaint and evidence of the complainant is that there lacks in proper steps by the Opposite Party No.1 and 2 both at pre and post-operation period and for which negligence of the Opposite Parties No.1 and 2 has been agitated as the ground of deficiency in service to the patient/complainant and for which she had suffered pain and swelling in the inside corner of her right eye, always remained watery eyes and excessive tearing. The Complainant banked upon the referred letter of request Exhibit-10 to the extent that “This patient Jhuma Gaswami has undergone ENDO DCR Opn(Rt) but it seems that her nose Lacrinal passage is blocked. Repeated Syringing was done but the passage was found to be blocked. As such I request you to kindly consider re-intervention”.This letter dated 01.11.2012 relates to, as addressed to Dr. Supratik Banerjee (Eye) and Dr. A.K. Singh (Ent).
There is no allegation in respect of operation i.e. the complainant has not claimed defective operation, rather claimed pre and post operative deficiency in service. Thus, reasonably we may look forward to the point that at the event of deficiency at the time of operation of the Right Eye of the Complainant/Patient, if there was no defect in the mode of operation and/or application of medicine and apparatus, then how and why the Naro Lacrinal Passege was detected by the referee doctor D. Bhattacharaya, as it appears from his letter and the prescription dated 02.10.2012 wherein it has been noted syringing Rt. NLP- Patent (02.10.2012),Syringing partially Rt. NLP- Blocked (12.10.2012) and Syringing of Lt. NLP- Partially blocked (19.10.2012).
Further, let us took at the Discharged Certificate issued by the “Anandalok Hospital and Neurosciences Centr,” Siliguri dated 29.09.2012, wherein present features appears as “watering (R) eyes” and important clinical findings “DNS left grade 1= (R) ITH discharge from (R) puncture.
Advice on discharge speaks of direction to patient to Dr. S. Banerjee for “syringing …….Right eyes twice a week.” From the prescription of Dr. A.K. Singh Exhibit-4 it appears that he has referred the letter for syringing on the date the patient attended him on 09.10.2012, 15.10.2012 and 26.10.2012 wherein he has referred to Dr. Supratik Banerjee to report & also to Dr. Goutam Basu, as it appears from the reverse page of the Prescription of Dr. A.K. Singh. Whereas, it appears from the front of the prescription that patient/complainant attended Dr. A.K Singh (M.S) consultant ENT and Head Neck Surgery of the Anandalok Hospital and Neuroscience Center and ex-associate Professor ENT and Head Neck Surgery, SMIMS as on 25.09.2012.
It is pertinent further to mention that Dr. A.K. Singh has got no Degree as Eye Surgeon and /or Eye-Specialist; but he participated in the O.T. which amounts to the criteria of deficiency in respect of his efficiency in service as there appears no presence of an eye surgeon in the O.T. Whereas, Eye-Surgeon is a special Degree. It is required. He has participated in the operation, not being an eye surgeon. We find one Prescription as document against Dr. Supratik Banerjee on record to have treated the patient on 24.09.2012. It is seen from exhibit No.3 wherein the note dated 29.09.2012 speaks right ENDO DCR done and referred to Dr. Bhattacharaya for weekly syringing. Then question arises how Dr. A.K. Singh has, not being an Eye Surgeon, put his remark on 15.10.2012 as to right eye partially blocked, if so what treatment/reference he has made is not transparent.
In respect of Bills, as to expenditure in respect of the operation dated 18.09.20123 and 29.09.2012 the amount states at Rs. 12,000/- + Rs. 500/- on the paid receipt vide exhibits-6,7,8,8/1. It also appears from the sole prescription of Dr. S. Banerjee dated 9.10.2012 that the patient/complainant needs syringing at least two days/in a week for one month and referred to Dr. D. Bhattacharjee. So, from the discussion above it is crystal clear that all the three doctors are more or less liable for deficiency in service and negligence in treatment of the complainant/ petitioner.
Similarly Exhibit-10 i.e. the letter of Dr. Bhattacharaya dated 01.11.2012 when filed before this Forum can reasonably be constituted that the letter was not placed/ deposited to the addressees one Dr. Supratik Banerjee and/or to Doctor A.K. Singh by the patient/complainant which explicitly speaks carelessness/negligence on her part and cannot be ignored. Besides, she has also not followed the advice of syringing properly and timely also cannot be ruled out from the materials on record.
Now, let us look into the W/V and Evidence of the Opposite Party No.1 and of the Opposite Party No.2, to arrive at a reasonable presumption as to have taken in defense by the Opposite Parties.
The O.P No.1 in his W/V has admitted the matters on record but denied that he had negligence in treatment and deficiency in service on his part. He has alleged that the patient has flouted the advice of the attending doctors on every aspect and at her whims, followed the advice and as such embarrassed her sufferings for which the doctors cannot be held responsible/liable. The vital point assailed is the Jurisdiction of this Forum because both the O.P Nos.1 & 2 are residing and/or carrying their profession at Siliguri and they have no business/profession at Cooch Behar hence, the instant case is beyond the Jurisdiction of this Forum. It appears that he has put his version for himself as well as for the O.P No. 2 also. He however has admitted treatment of the complainant at Siliguri. He has stated that “No allegation is made or no relief is claimed against the O.P. No.3. ”He has however denied that Dr. Debabrata Bhattacharjee referred the complainant to them at Siliguri, rather she went to them at her own accord and they prior to such operation all the pre-operative checkup, tests were done on 24.09.12 and the operation (Endo DCR) was done with due care and skill to the knowledge of the O.P.No.1 &2.
On the other hand the O.P.No.2 in his written version has stated almost alike matters and has added that as per advice in the letter dated 01.11.12 of the O.P. No. 3 to meet the for re-intervention she did not comply it on the contrary has preferred this case before the Forum. He has further asserted that the operation called endoscopic D.C.R involves opening of the diseased, blocked naso-lacrimal canal and creation of a new drainage system via the nasal cavity. The success rate of this operation varies between54% to84%, which means that in certain group of patients, the opening made during the operation gets blocked again. In most instances, the recurrent blockage of the canal after operation result from lack of proper cleaning of the operated field and lack of regular and frequent syringing during healing period of the surgical wound. In case of recurrent blockage re-intervention is required.
The Evidence of the O.P.No.1, as it appear, the complainant last met him on 26.10.12 and no further. He has stated almost alike matters as assailed in his W/V. He has stated that due to the personal hygiene i.e. lack of regular cleaning of the noses as advised and not following post-operative advice for syringing twice a week, she had recurrence of symptoms of such blockage. He has admitted that Dr. Supratik Banerjee and himself had performed the said operation. He has finally prayed for dismissed the instant case with cost.
The Documents adduced in this case for the Complainant marked as Exhibits:-
- The Prescription of Mrs. Jhuma Goswami aged 27 years dated 07-03-2012 issued by Dr. D.Bhattacharya marked Exbt.-1,
- Patient Identity Card of Mrs Jhuma Goswami aged 22 years dated 24-09-2012 issued by Siliguri Greater Lions Hospital marked Exbt.-2,
- The Prescription Mrs. Jhuma Goswami aged 22 years dated 24-09-2012 issued by Siliguri Greater Lions Hospital marked Exbt.-3,
- The Prescription Mrs. Jhuma Goswami aged 22 years dated 25-09-2012 issued by Dr. A.K. Singh of Anandaloke Hospital & Neurosciences Centre, Siliguri marked Exbt.-4
- The Discharge Certificate of Mrs. Jhuma Goswami aged 22 years dated 29-09-2012, issued by Anandaloke Hospital & Neurosciences Centre, Siliguri marked Exbt.-5,
- The Clearance Certificate of Mrs. Jhuma Goswami aged 28 years dated 29-09-2012, issued by Anandaloke Hospital & Neurosciences Centre, Siliguri marked Exbt.-6,
- Amount paid to Anandaloke Hospital & Neurosciences Centre, Siliguri dated29-09-12 in respect of Mrs. Jhuma Goswami aged 28 years marked Exbt.-7
- The Pharmacy Invoice of Anandaloke Medical Stores dated 29-09-2012 in respect of Mr. Jhuma Goswami marked Exbt.-8 ,8/1.
- The Prescription of Mrs. Jhuma Goswami aged 22 years dated 02-10-2012 issued by Dr. D. Bhattacharya marked Exbt.-9,
- The Letter of Dr. D. Bhattacharya dated 01-11-2012 addressed to Dr. Supratik Banerjee(Eye) & Dr. A.K. Singh(ENT) in respect of patient Pt Jhuma Goswami marked Exbt.-10.
POINTS FOR CONSIDERATION
- Whether the Petitioner is a “Consumer” & the Petition is a “Complaint” under the C.P.Act, 1986?
- Whether this DCDRF, Cooch Behar has Territorial/Pecuniary Jurisdiction to entertain the case?
- Whether there arose any cause of action within the jurisdiction of this Forum?
- Whether the Opposite Parties contributed negligence/deficiency in service to the complainant in respect of her treatment?
- Whether the complainant is entitled to get relief(s)/compensation as prayed for?
- Whether the O.Ps jointly and/or is/are severally liable to compensate the complainant for their acts/omissions in rendering service to the complainant? If not why not?
DECISION WITH REASONS
Point No. 1,2 & 3:-
From the discussion hereinbefore, in respect of the complaint, the written versions, evidence of both sides together with the documents marked Exhibits and the arguments put forward by the Ld. Advocates for their respective parties we have no reason to come to decision the points No 1,2 & 3 that the petitioner Mrs. Jhuma Goswami is a Consumer and she is a complainant of the instant case specially when a part of cause of action arose within the jurisdiction of this Forum from the documents vide Exhibits-1,3 &9, contributed by the O.P No.3 in terms of the various provisions of the C.P. Act.
Point No. 4:-
It is transparent from the Written Versions/Evidences on affidavit of the O.P. Nos. 1 & 2, though claimed to have no negligence and/or deficiency in service they, failed to produce/adduce any substantive evidence to satisfy the Forum in substantiating in their defence, hence reasonably the Opposite Parties contributed negligence/deficiency in service, though not so viable, to the complainant in respect of her treatment including the so called Proforma Opposite Party.
Point No. 5 & 6:-
In respect of this point we are not inclined to accept the contention of the complainant in toe-toe, as she has failed to substantiate her expenses by relevant & admissible supporting documents, in terms of her claim. So, she is entitled to get the reasonable expenses and compensation to the extent she has suffered damage /loss and not beyond as this Forum is neither a Jackpot nor a lottery Centre to get the amount of entire expenses of treatment of a patient by filing a case at the cost of the medical practitioners/Clinics/Nursing Homes/Hospitals, though in the instant case the O.Ps jointly and/or is/are severally liable to compensate the complainant for their acts/omissions in rendering service to the complainant. If not why not point, hence does not hold good.
ORDER
Therefore, it is ordered that the complaint be and the same succeeds in part. The O.P.Nos.1 Dr. Supratik Banerjee, 2. Dr. Akoijam Kennedy Singh, 3. Dr. Debabrata Bhattecharaya are, in the instant case, jointly and/or is/are severally liable to compensate the complainant for their acts/omissions in rendering service to her in respect of her treatment.
Accordingly, the Opposite parties herein above are directed to pay(1) Rs.6,000/-towards litigation costs, (2) Rs. 15,000/- towards medical expenses, (3) Rs. 15,000/-for mental/physical pain/agony considering the age and other related factors and no further as she could not prove/substantiate the extent of damage of her eyes due to such negligence/deficiency in service of the Ops, within 45 days from the date of this Final Order, to the complainant Mrs. Jhuma Goswami, failure of which the Opposite Parties jointly and/or severally shall pay at the rate of Rs.120/-for each day’s delay, if any, by depositing the same in the State Consumer Welfare Fund, on expiry of the aforesaid period and till the entire payment is made.
Let plain copy of this order be supplied to the concerned parties /Ld. Advocates under proper Acknowledgement by hand/by Register Post with A/D to the parties concerned forthwith free of cost, for information& necessary action.
Dictated and corrected by me.
President President
District Consumer Disputes District Consume Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar.
Member Member
District Consumer Disputes District Consume Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar.
