FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The facts of the case are that OP Dr. P K Kundu is the family physician of the complainants who advised the complainant No. 1 to immediately shift his sister i.e. the complainant No. 2 to Salt Lake City Medical Centre at DD-10, Sector-I, Salt Lake, Kolkata-700064 for better treatment. Accordingly, complainant No. 2 was admitted to Salt Lake City Medical Centre on 26.10.2020 with the history of breathing and sort of disorientation and she was under treatment of OP. During stay at Medical Centre a large number of medical and pathological tests were done which had no relation with the ailments of complainants No. 2 to make unlawful gains. OP was not aware of the health condition of his sister . The in structural facilities of Salt Lake City Medical Centre was found too much poor. There was no Neuro Imaging or Interventional Radiology facilities for which patient was moved to Suraksha Diagnostic for the RCT Scan of Thorax. As a result, the health condition of complainant No. 2 in rapid deterioration. On 02.11.2020 complainant No. 1 noticed an alarming red and purplish marks on the left hend and left toes of his sister. There was also swelling in the affected area. Complainant No. 2 also informed her brother that she had developed kind of loss of sensation and pain in the affected areas. On account of extreme negligence on the part of OP his sister had developed new and severe complaints. It was the duty of the OP to take proper care of his sister as she was admitted to Salt Lake City Medical Centre under his instruction. She was not given adequate treatment. OP discharged the complainant No. 2 on 10.11.2020 at around 12.57 PM. An amount of Rs. 3,38,072/- was spent for the treatment of his sister at Salt Lake City Medical Centre. There were several gangarene on the affected area of his sister. Having no other trust, his sister was taken to the chamber of Dr. K N Siddiqui who opined that his sister developed serious gangarene and he adviced to immediately undergo a Doppler test along with other pathological tests to diagnosed the disease. Doppler test was done and his sister was advised to admission at Hospital for treatment of gangarene. His sister was also referred to Dr. Sankhadeep Pramanick for opinion who confirmed that report of Dr. S A Faizal an Eminent Surgeon Patient was admitted to Woodland Multispecialty Hospital at Alipore on 12.11.2020 and her left leg, left index finger and right little finger were amputeted for which they incurred Rs. 4,67,840/-. His sister cannot move without wheel chair and she is fully dependent upon the attendant.
Being aggrieved against the medical treatment of OP, complainants have filed the instant consumer complaint and prayed total treatment cost of Rs. 10,18,347/- and compensation of Rs.80,00,000/-.
Despite service of notice, OP did not turn up to contest the case by filing WV within the statutory period as prescribed under CP Act, 2019. As such, the case runs ex parte against the OP.
In support of their case, Complainant have filed E/chief supported by an affidavits.
We have heard argument on merit. Perused the Consumer Petition including medical record and gave our thoughtful consideration.
During argument, the Ld. Advocate for the complainants reiterated the facts and their evidence. He further argued that there was no specific treatment available at Saltlake City Medical Centre. There was no Neuro Imaging or interventional Radiology facilities and patient was admitted there for better treatment as per advice of OP Dr. P K Kundu. He further argued that before admission to Salt Lake City Medical Centre Complainant No. 2 consulted with doctors attached with institute of Neurosciences, Kolkata who adviced his sister to admitted in any Hospital or Nursing Home having ICU facility to ensure that she is kept under round the clock medical treatment. He further contended that complainant No. 2 was admitted to all Asia Medical Institute, Kolkata for necessary treatment and during such period, OP advised to admit complainant No. 2 at Salt Lake Medical Centre being their family physician. He further submitted that the OP did not give proper treatment to complainant No. 2 despite notice of alarming red and purplish marks on the left hand and left toes. As a result, left leg, left index finger and right little finger of the complainant No. 2 were amputeted at Woodlands Multispecialty Hospital, Alipore. It itself amounts to deficiency in service and intention to cover up his wrong.
The Ld. Advocate placed reliance upon Maharaja Agrasen Hospital & Ors. Vs. Master Rishabh Sharma & Ors. (2020) 6 Supreme Court cases 501, Bolam Vs. Friern Hospital Management Committee (The weekly Law Reports, April 26, 1957, Dr. V ibubhai J. Patel & Anr. Vs. Thakkar Kalpesh Kumar G. & Ors. Of the Hon’ble NCDRC , Dr. T T Thomas Vs. Smt. Elisa & Ors (AIR 1987 Ker 52) and Jacob Mathew vs. State of Punjab & Anr. (2005) 6 Supreme Court cases 1.
It is apparent from the record that patient (complainant No. 2) was suffering from breathing and also lost her senses prior to treatment of Neuro Imaging & Interventional Radiology at Institute of Neurosciences, Kolkata. Medical expert of said institute advised her to get admitted in a hospital or nurshing home having ICU facility. It is also apparent from the record that patient was admitted in All Asia Medical Institute for necessary treatment and she was discharged after recovered from her complaint.
The allegations of the complainants are that OP Dr. P K Kundu being the family physician of the complainants advised complainant No. 1 to immediately shift his sister to Salt Lake City Medical Centre for better treatment and complainant No. 2 was admitted to said Medical Centre with history of breathing and sort of disorientation. Patient was under treatment of OP. Several pathological tests were done which had no relation with the ailments of the patient and the infrastructural facilities of said Medical Centre was found too much poor for which patient was moved to Suraksha Diagnostic for HRCT scan of Thorax. The treatment was not as per reasonable standard of care. There were red and purplish marks on the left hand and left toes of her sister who also loss of sensation and pain in affected areas. Ultimately, there were several gangarene on the affected area.
Patient was admitted to Woodlands Multispecialty Hospital, Alipore and her left leg, left index finger and right little finger were amputted. As a result, her sister cannot move without wheel cheer and she is fully dependent upon her attendant.
Medical negligence comprises of the following constituents:-
- a legal duty to exercise due care on the part of the medical professional;
- failure to inform the patient of the risks involved
- the patient suffers damage as a consequence of the undisclosed risk by the medical professional
- if, the risk had been disclosed, the patient would have avoided the injury;
- breach of the said duty would give rise to an actionable claim of negligence.
Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable decree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The laws requires neither the very highest nor a very low decree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient.
Lord Denning in Hucks-Vs. Cole, held that a medical practitioner would be liable only where his conduct falls below the standards of a reasonably competent practitioner in his filed. Complainant No. 2 was under treatment of OP and during stay at Salt Lake Medical Centre OP ignored of alarming red and purplish marks which developed on the limbs of the patient as symptoms of gangarene. OP did not take any step to treat such disease and over telephone saying that the dis-clouration of skin was temporary in nature and nothing to be worried about. Ultimately, patients left leg index finger and right little finger were amputeted at Woodlands Multispecialty Hospital, Alipore.
Both the complainants have filed their E/chief supported by affidavits with regard to the state of affairs. Particularly, the complainant No. 2 who was under treatment of OP discloses the trauma and pain which she had passed during the relevant period. OP did not file WV though opportunity has been given to him. Thus, the allegations stated in the complaint petition remains unchallenged. Therefore, we can safely state that on failure to file WV by the OP tantamount to the admission of the allegations stated in the complaint petition.
In our opinion, the OP has miserably failed to discharge his duties and obligations as cast upon him under the Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulations 2002 and also failed to take reasonable care of complainant No. 2. OP ought to have neglected or overlooked or ignored the apparent symptoms of gangarene of the complainant No. 2 which developed during her stay at Salt Lake City Medical Centre under the OP. Had the OP taken the preventive actions upon noticing the early evident symptoms of gangarene, the rest of the life of the complainant No. 2 would not have been miserable. It was the obligation of the OP to provide adequate information to the complainants about symptoms of gangarene but the OP neglected to appreciate the necessity of emergent treatment.
In view of the facts and circumstances of the case and discussion above coupled with the cited decisions, the consumer case deserves to be allowed in part against the OP Dr. P K Kundu and following directions are therefore, issued:-
a) OP is directed to pay Rs. 6,94,240/- (Rupees six lacs ninety four thousand two hundred forty) only to the complainant No. 2 out of Rs. 10,18,347/-.
- OP is directed to pay Rs. 1,00,000/- (Rupees one lac) only to the complainant No. 2 towards her mental agony and pain.
- OP is also directed to pay Rs. 10,000/- (Rupees ten thousand) only to the complainant No. 2 towards litigation cost.
- OP is directed to comply the order within a period 90 days from the date of order. In case the OP fails to comply the order, in that event, complainants may file Execution Application U/ss. 71 & 72 of the CP Act, 2019 against the OP.
Copy of the judgment be given to the parties as per rules. Judgment be uploaded on the website of the commission for perusal of the parties.
