In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, Kolkata-700087.
CDF/Unit-I/Case No.76/2006
1) Pradip Kumar Sanyal,
10/1, A Rustomjee Street,. Ballygunge, Calcutta-19. ---------- Complainant
---Versus---
1) Dr. Vishnu Kumar Bhartia,
Advance Medical & Research Institute,
P-4 & 5 C.I.T. Scheme, Block-A
Gariahat Road, Kolkata-29.
2) Dr. Diptendu Das,
Advance Medical & Research Institute,
P-4 & 5 C.I.T. Scheme, Block-A,
Gariahat Road, Kolkata-29.
3) Advance Medical & Research Institute,
P-4 & 5 C.I.T. Scheme, Block-A,
Gariahat Road, Kolkata-29.
3) West Bengal Medical Council,
7, Loyns Range, Calcutta-1. ---------- Opposite Parties
Present : Sri Sankar Nath Das, President.
Dr. Subir Kumar Chaudhuri ,Member
Smt. Sharmi Basu ,Member
Order No. 47 Dated 24/01/2013.
The case of the complainant in short is that during May, 2004 the complainant felt severe pain in his lower abdominal region and as such consulted Prof. B.P. Maji who referred the complainant to the o.p. no.1 doctor for better medical treatment at the o.p. no.3 hospital.
The complainant accordingly went to o.p. no.1 doctor on 2.11.04 who on physical examination came to conclusion that the complainant was suffering from ‘Hernia’ and as such surgery was required in his lower abdomen accordingly advised for admission at o.p. no.3 hospital on 15.11.04 and had fixed surgery on 16.11.04. The o.p. no.1 doctor further advised certain test to be carried out by the complainant.
The complainant further stated that before the operation routine HIV, HbSAg and HCV and various other tests of the complainant were done and in all the tests it came that the complainant had no infection whatsoever.
The complainant further stated on 16.11.04 his surgery was carried out at the operation theatre of the o.p. no.3 by the o.p. no.1 doctor. It is stated that the complainant underwent a surgery under General Anaesthesia for treatment of the hernia. At the time of operation prolene mesh was used for correcting the problem of the complainant. The operation was successful and he was discharged on 18.11.04.
The complainant stated that the operation theatre and the instrument used therein during the operation at the o.p. no.3 hospital on 16.11.04 was not sterilized properly and as such the complainant was infected deadly with hepatitis B virus during the operation. The complainant states that the hepatitis B virus which was infected at the time of the operation was Dormant at the time of discharge and as such it was not detected at the time of discharge of the complainant.
Sometime in April, 2005 the complainant noticed his urine which yellow in colour and the complainant had also developed problems in the neck and as such the complainant went to his family physician for treatment who advised for testing Serum bilirubin, SGPT and HbSAg.
And the complainant underwent all the tests as was prescribed and the report suggested that the complainant was suffering from Jaundice and as such he was treated for the same.
Thereafter, the complainant consulted Dr. Sarika Kedia at o.p. no.3 hospital. On 6.5.06 the complainant was advised to undergo HAVIGM, HEVIgm, HBSAg, etc. tests by Dr. Kedia. The complainant underwent all such test and the test report suggested that the complainant was suffering from hepatitis B infection.
The complainant further stated that Dr. Kedia in his prescription have indicated that there is a chance of the infection of hepatitis B at the time of surgery of hernia.
Further case of the complainant is that the cause of action of the present complaint arose on 16.11.04 at the time of surgery by the o.p. no.1 doctor at the o.p. no.3 hospital. Hence the case was filed by complainant with the prayer contained in the petition of complaint.
O.p. nos.1, 2 and 3 had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them in the petition of complaint and prayed for dismissal of the case. O.p. no.4 did not appear in this case and matter was heard ex parte as against o.p. no.4.
Ld. lawyer of o.p. no.1 in the course of argument submitted that the petition of complaint has got no basis at all and the instant case is liable to be rejected.
Decision with reasons:
We have gone through the entire materials on record meticulously and we find that the specific case of the complainant in short is that complainant was suffering from hernia and o.p. no.1 after examination of the complainant on 2.11.04 advised admission in o.p. no.3 hospital on 15.11.04 and 15.11.04 was fixed for surgery and his hernia operation took place on 16.11.04 by o.p. no.1 in o.p. no.3 hospital and complainant was discharged on 18.11.04.
Further case of the complainant as it appears from the record is that in the month of April, 2005 complainant noticed his urine which was yellowish in colour and he consulted Dr. Satish Chandra Ghosh, the family physician and underwent various tests and the report suggested that the complainant was suffering from jaundice and thereafter for abundant precaution complainant consulted Dr. Sarika Kedia of o.p. no.3 hospital and on 6.5.05 complainant was advised to undergo HAVIGM, HEVLGM, HBSAG etc. test by Dr. Kedia and the said test reports suggested that the complainant was suffering from Hepatitis B infection.
It has been alleged by the complainant in para 8 of the petition of complaint that the operation theatre and the instruments used therein during the operation at o.p. no.3 hospital on 16.11.04 by o.,p. no.1 was hot sterilized properly and as such, complainant was infected with Hepatitis B virus during the operation undertaken by o.p. no.1.
From annex-F attached with the petition of complaint i.e. the prescription of Dr. Sarika Kedia dt.6.5.05 to whom the complainant consulted for his infection of Hepatitis B and nowhere in the said prescription there is any mention to the effect that complainant suffered from Hepatitis B infection caused for user of non sterilized instruments at the time of operation in the operation theatre of o.p. no.3 hospital done by o.p. no.1 and besides this prescription there is no other medical report from any expert at all lying with the record in support of the allegation agitated by the complainant in respect of infection of Hepatitis B sustained by the complainant due to non sterilization of the instruments used at the time of the surgery at operation theatre of o.p. no.3 hospital.
Complainant in his cross examination on dock vide dt.17.7.08 stated that “I shall call for doctor expert as witness”, but no such expert doctor has been examined in this regard on behalf of complainant to substantiate his allegation contained in the petition.
Be that as it may on perusal of the entire materials on record we do not find any evidence documentary or oral in support of the contention of the complainant as has been alleged in the petition of complaint acceptable to this forum. More precisely to say there is no evidence at all to the effect that the infection of Hepatitis B caused to the complainant owing to the alleged user of non sterilized instruments at the time of operation in o.p. no.3 hospital done by o.p. no.1.
That apart, it is the specific averment of the complainant as we find from para 14 of the petition of complaint wherein complainant stated that Dr. Kedia in his prescription had indicated that there is a chance of infection of Hepatitis B at the time of surgery of hernia. But in the prescription dt.6.5.05 of Dr. Kedia there is no whisper in this regard at all. It is settled principle of law that suspicion, however strong it may be, cannot take the place of proof and here we would like to mention that para 14 of the petition of complaint, complainant has avered that there is a chance of the infection of Hepatitis B at the time of surgery of hernia and as such averment of the complainant has got no basis at all as we find on perusal of the prescription of Dr. Kedia dt.6.5.05 or any other papers lying with the record.
In view of the findings above and on careful scrutiny of the entire materials on record we do not find even an iota of evidence in support of the allegations contained in the petition of complaint lodged by the complainant and as such, we are constrained to hold that the complainant has miserably failed to substantiate and prove his allegations as contained in the petition of complaint.
In result, the case of the complainant fails.
Hence, ordered,
That the instant case bearing no.CDF, Unit-I, Case No.76 of 2006 is dismissed on contest against the o.p. nos.1, 2 and 3 without cost and ex parte against the o.p. no.4 without cost.
Supply certified copy of this order to the parties free of cost.
