Consumer Complaint No.84 of 2016
Date of filing: 12.05.2016 Date of disposal: 28.7.2016
Complainant: Sri Adhiraj Roy, Qtr. No. 4D/7, S. N. Bose Road, B-Zone, PS: Arabinda, Durgapur – 713 205, District: Burdwan.
-V E R S U S-
Opposite Party: 1. Branch-in-Charge, Durgapur Branch, Forties Hospital Information Centre, 64, Moulana Azad Sarani, City Centre, Durgapur – 713 216, District: Burdwan.
2. The Director, Forties Hospital & Kidney Institute, 111A, Rash Behari Avenue, Kolkata – 700 029.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Satyabrata Home, Autho. Representative.
Appeared for the Opposite Party: None.
J U D G E M E N T
Introduction:
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging medical negligence against the OPs as due to lack of proper care the Complainant-patient had to suffer physical pain along with monetary loss for a prolonged period.
Brief fact:
The brief fact of the case of the Complainant is that in the month of April 2012 he visited the OP-2 with acute lower abdominal pain and urinary track problem. The Complainant was checked up by the attending doctor on duty of the OP-2 and after several clinical tests and investigations by the OP-2 the Complainant was advised for surgery and accordingly he underwent urological surgery of right Ureteroscopy, RGP DJ Stenting on 25.04.2012 under the care and supervision of Dr. Shivaji Basu of the OP-2. The Complainant got discharge on 26.04.2012 after post surgical check up and after making payment of the entire hospital bill amount. At the time of discharge the Complainant was not supplied with the copies of the hospital bills, indoor treatment papers and other treatment related documents, not only that during his subsequent visits for follow up inspite of repeated requests those documents were not handed over by the OP-2. The Complainant again visited the OPD of the OP-2 on different dates i.e. between 30.04.2012 to 30.06.2012 for reporting of his physical condition along with routine medical checkup as per post-SWL. The Complainant was advised by the attending doctor of the OP-2 to report on the next date for medical checkup along with X-ray of abdomen. On 19.07.2012 when the Complainant felt acute pain in his lower abdomen with urinary problem and severe weakness he went for X-ray as per advice of the OP-2 to a local laboratory, namely, Mediscan, Durgapur and visited the OPD of the OP-2 along with the said X-ray report on 21.07.2012. For removal of right DJ stent flexi URS etc. which is evident from the discharge summary dated 30.07.2012 issued by the OP-2 and at that time also he paid the entire hospital bills. Subsequently the Complainant felt similar type of pain in his lower abdomen with severe weakness and accordingly visited the Department of Urology of the OP-2 on 05.03.2013 wherein he explained his physical problem in detail to the attending doctor of the OP-2, who after going through all the post surgery history/treatment papers examined the Complainant physically and simply prescribed few medicines along with an advice to him to report again with X-ray/USG, investigation reports on the next visit. The Complainant further felt similar type of pain in his lower abdomen along with severe weakness on 10.11.2014 but at that point of time due to financial stringency he could not approach before the OP-2 as it is a highly expensive centre, rather he rushed to the nearest State Govt. Hospital (SD Hospital) at Bidhannagar, Durgapur-12. The attending doctor of the said Govt. Hospital after physical examination had stated that the Complainant had to carry out some clinical tests/investigations and accordingly he was advised for X-ray KUB. The Complainant got discharge from the Govt. Hospital on 12.11.2014 with an advice to report to the Burdwan Medical College & Hospital, Burdwan for further investigation and treatment. Due to adverse and deteriorating health condition it was quite inconvenient for the Complainant to approach before the BMCH with a view to avail of further treatment therefrom as BMCH is situated far away from his residence at Durgapur. So he visited the Mission Hospital, Durgapur on 26.11.2014 along with all post-surgical and medical treatment papers for a counter opinion. He was also in need of best advice in the matter of further course of treatment which became very necessary due to his physical problem. The attending doctor of OPD, Mission Hospital after going through all the medical papers/treatment history and examining the Complainant physically, advised for X-ray KUB along with other clinical tests for further course of treatment. It is revealed from the X-ray KUB done by the Complainant at the Mission Hospital, Durgapur that the DJ stent which was implanted in course of urological surgery of right Ureteroscopy RGP DJ Stenting on 25.04.2012 at the OP-2 and which was subsequently removed as per the discharge summary report dated 30.07.2012 issued by the OP-2, the D J Stent is still existing at the procedure site. Accordingly the Complainant was advised to undergo for further surgery with a view to remove of the DJ Stent and to get rid of chronic health disorder which made the Complainant almost handicapped and incapable to earn and maintain his livelihood. The Complainant was accordingly got admission at the Mission Hospital, Durgapur on 07.12.2014 and got discharge therefrom on 09.12.2014 after removal of retained DJ Stent through Cystoscopy on 08.12.2014. For this operation the Complainant had to bear a sum of Rs. 30,000=00 including the hospital bills along with incidental charges and he had to collect the said amount to save his live from further deterioration. As the detection of negligence and irregularities on the part of the OP-2 arose on 26.11.2014 when the Complainant got knowledge from the X-ray KUB report that the DJ stent is still lying at the operation site and within two years from the date of cause of action as this complaint is initiated by him hence, the complaint cannot be termed as barred by limitation in view of the Section 24A of the C.P. Act, 1986. It is further submitted by the Complainant that upon detection of medical negligence/irregularities and deficiency in service of the OP-2 the Complainant approached before the OP-2 & 3 for redressal of his grievance on several occasions, but no response was received from it and for this reason he also approached before the Assistant Director, Department of Consumer Affairs, Govt. of West Bengal, Kolkata (South) Regional Office at 11A, Mirza Ghalib Street, Kolkata -87. The said authority issued a notice to the OP-2 on 02.02.2015 directing to attend the hearing/tripartite meeting on 18.02.2015 with a view to resolve the dispute through mediation, but none was present on behalf of the OP-2 and accordingly the above-mentioned authority informed the Complainant on 19.02.2015 about the outcome of the process of mediation by issuing an official letter. The Complainant has also approached before the Registrar, the West Bengal Medical Council, Kolkata over the alleged professional misconduct arising out of gross medical negligence and deficiency in service on the part of the OP-2 along with the concerned doctors of the said hospital requesting therein for a departmental enquiry about such allegation along with disciplinary action against the hospital and doctors. As the grievance of the Complainant had not been redressed hence he has approached before this Ld. Forum by filing this complaint praying for direction upon the OP-2 for making payment of Rs. 1, 03,000=00 to him towards medical expenses incurred by him with a view to avail of wrong and negligent treatment at the OP-2 along with an interest @10% p.a. on the above-mentioned amount till realization, to pay a sum of Rs. 3,31,400=00 to him by the OP-2 as compensation due deficiency in service arising out of gross medical negligence, loss of earning, harassment and mental agony and litigation cost of Rs. 30,000=00.
After admission of the complaint notices were issued to the OPs through this Ld. Forum through speed post with A/D on 25.05.2016 and accordingly the record was fixed for S.R. and appearance on 17.06.2016. On 17.06.2016 the postal track record revealed that the OP-1 & 2 have duly received the notices but since then the OPs did not turn up before this Ld. Forum with a view to contest the complaint either orally or by filing written version, hence the case is running ex parte against the OP-1 & 2. On the date of final argument none was present on behalf of the OPs and we took up the hearing of argument from the Authorised Representative of the Complainant. On behalf of the Complainant Sri Satyabrata Home being a relative of him had advanced his argument. Proper authorization letter is lying on the record.
Points to be decided:-
1. Whether the Complainant is a consumer or not?
2. Whether this complaint is maintainable from the territorial and pecuniary points of jurisdiction?
3. Whether this complaint is maintainable before this Ld. Forum as the treating doctor has not been made a party in this proceeding?
4. Whether there is any medical negligence on behalf of the OPs?
5. Whether the Complainant is entitled to get any relief as sought for?
Decision with reasons:-
Point No. 1:
Admittedly the Complainant went at the OP-2 for getting treatment wherein the Complainant underwent surgical intervention and got discharge therefrom. The Complainant has paid the entire bill amount to the OP-2. Subsequently the Complainant had to visit the OP-2 on several occasions and he had to get admission further at the OP-2 for removal of the DJ stent, implanted at the time of surgery and during discharge he also paid the entire bill amount to the OP-2. As the OP-2 is a service provider and the Complainant hired the medical service from the OP-2 being a consumer, hence the Complainant can easily be termed as consumer.
Point No. 2:
Admittedly the Complainant got admission at the OP-2 situated in Kolkata, wherein he underwent for surgical intervention; stent was implanted, subsequently removed (as per discharge certificate) at the OP-2 in Kolkata. But later on the medical negligence as well as deficiency in service of the OP-2 has been detected at the Mission Hospital, Durgapur which is situated within the territorial jurisdiction of this Ld. Forum and hence as part of cause of action has arisen within the territorial jurisdiction of this Ld. Forum, the complaint is maintainable u/S. 11 (2)(c) of the C.P. Act, 1986 before this Ld. Forum from the territorial jurisdiction point of view. From the prayer portion it is evident that the Complainant has sought for giving direction to the OPs for making payment of the treatment cost along with compensation to him which is not exceeding the pecuniary jurisdiction of this Ld. Forum. Therefore, the complaint is very well maintainable from the point of pecuniary jurisdiction.
Point No. 3:
At the very outset of the argument the Complainant was asked as to why the treating has not been made a necessary party in this proceeding. In reply the Complainant has stated that as he paid the entire consideration money to the OP-2, hence making the treating doctor/s as necessary party/ies is not mandatory in view of the C.P. Act, 1986 as well as the settled principle of law. We got much substance in his argument because in the judgment of Smt. Savita Garg Vs. The Director, National Heart Institute, decided on 12.10.2004, reported in 2004 (8) Supreme 58 the Hon’ble Supreme Court has held that where consumer complaint alleging medical negligence is filed against medical hospital/institute where the patient was treated, complaint could not be dismisses summarily on ground of non-joining of treating doctor as necessary party. From the subject matter of the said case it is evident that the husband of the Complainant –Smt. Savita Garg got admission in the OP Hospital, wherein the patient died. Thereafter the Complainant lodged this complaint before the Hon’ble NCDRC against the Hospital only claiming a sum of Rs. 45, 00,000=00 due to medical negligence, deficiency in service etc. The Hon’ble National Commission upon hearing the said complaint was pleased to dismiss the complaint on the ground of non-joinder of necessary parties because the treating doctors of the deceased had not been made parties in that complaint. Thereafter the Complainant –widow of the deceased approached before the Hon’ble Supreme Court wherein Their Lordships have mentioned in the paragraph 6 of the said judgment which runs as follows:
6. “It is the common experience that when a patient goes to a private clinic, he goes by the reputation of the clinic and with the hope that proper care will be taken by the hospital authorities. It is not possible for the patient to know that which doctor will treat him. When a patient is admitted to a private clinic/hospital it is hospital/clinic, which engaged the doctors for treatment. In the present case, the appellant husband was admitted to the best of the hospital and it is not possible for the appellant to find out that who is the best doctor and who is not. Normally, the private clinics go by the reputation and people look forward for best treatment when they are run, commercially. It is the responsibility of the clinic that they must provide best of the services when they charge for the services rendered by them. In case it is found that service rendered by the clinic/hospital as the case may be, is not up to the mark and it involves some negligence on their part, for which the patients suffer, then they are bound to reimburse them. They charge fee for the services rendered by them and they are supposed to bestow the best care………………………….. The question is therefore, whether in the absence of the treating doctor could the original petition be dismissed on the ground of non-joinder of necessary party……………..” In paragraph 9 of the said judgment it is mentioned that ‘therefore, according to the procedure laid down by the rules a complainant has to give the name, description and address of the opposite party or opposite parties so far as they can be ascertained.’ In paragraph 11 it is mentioned by Their Lordships as follows:
11. The consumer forum is primarily meant to provide better protection in the interest of the consumers and not to short circuit the matter or to defeat the claim on technical grounds. Reverting back to the facts of the present case whether non-joinder of the treating doctor, nursing staff can result into dismissal of the claim petition. As a matter of fact, when patient is admitted to a highly commercial hospital like the present institute, a thorough check up of the patient is done by the hospital authorities, it is institute which selects after the examination of the patient that he suffers from what malady and who is the best doctor who can attend, except when the patient or the family members desires to be treated by a particular doctor or the surgeon as the case may be. Normally, the private hospital have a panel of doctors in various specialties and it is they who chooses who is to be called. It is very difficult for the patient to give any detail that which doctor treated the patient and the doctor was negligent or the nursing staff was negligent. It is very difficult for such patient or his relatives to implead them as parties in the claim petition. It will be an impossible task and if the claim is to be defeated on that ground it will virtually be frustrating the provisions of the Act leaving the claimant high and dry. We cannot place such a heavy burden on the patient or the family members/relatives to implead all those doctors who have treated the patient or the nursing staff to be impleaded as party. It will be a difficult task for the patient or his relatives to undertake this searching enquiry from the hospital and sometimes hospital may not cooperate. It may give such details and sometimes may not give the details. Therefore, the expression ‘so far as they can be ascertained’, makes it clear that the framers of the rules realized that it will be very difficult specially in the case of medical profession to pin point that who is responsible for non-providing proper and efficient service which give rise to the cause for filing a complaint……………………………………………………………………………………………………. The patients once they are admitted to such hospitals it is the responsibility of the said hospital or the medical institutions to satisfy that all possible care was taken and no negligence was involved in attending the patient. The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the hospital to provide the best service and if it is not, then hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff, as the case may be, was not impleaded, therefore, the claim should be rejected on the basis of non-joinder of necessary parties. In fact once a claim petition is filed and the claimant is successfully discharged the initial burned that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated the patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing the doctor who treated the patient in defence to substantiate their allegation that there was no negligence……………………………………………………………………………………………………
The burden is greater on the institution/hospital than that of the claimant………………………………………………………………………………………………………’ In the said case the Hon’ble Supreme Court was pleased to remand back the case to the Hon’ble National Commission for hearing on merit.
Upon careful perusal of the above-mentioned dictum of the Hon’ble Supreme Court we are of the opinion that the above-mentioned judgment is very much applicable in the case in hand because in the instant case also the Complainant did not make the treating doctor/doctors as a party. It is also true that inspite of receipt of notice the OP-2 choose not to appear. Having regard to the above-mentioned observation of the Hon’ble Apex Court we are to say that inspite of non-joinder of the treating doctor as a necessary party in this proceeding, we have no authority to dismiss the complaint on that score. Therefore, the complaint is very much maintainable before this Ld. Forum and the point no-3 is decided in favour of the Complainant.
Point No. 4:
Now we are to decide the most important and vital point as to whether there is any medical negligence or not on behalf of the OPs. Prima facie it is necessary to mention that admittedly the Complainant never approached before the OP-1-Branch-in-Charge, Durgapur Branch, Forties Hospital Information Center, 64, Moulana Azad Sarani, City Centre, Durgapur – 713 216, District: Burdwan for any treatment. As a branch office of the OP-2 i.e. the Director, Forties Hospital, 111A, Rash Behari Avenue, Kolkata -29 the OP-1 has been made a necessary party to this proceeding. Within the four corners of the complaint as no allegation has been made out by the Complainant against the OP-1 and no relief sought for against it, hence the complaint be dismissed against the OP-1 without any cost.
We have noticed that the Complainant approached before the OP-2 on the month of April 2012 with acute lower abdominal pain and urinary track problem, wherein he was checked up by the attending doctor on duty. Several clinical tests and investigations were made and at last the Complainant was advised for surgery. Accordingly he got admission at the OP-2 and underwent urological surgery of right Ureteroscopy RGP, DJ Stenting was implanted on 25.04.2012 under the care and supervision of Dr. Shivaji Basu of the OP-2. The Complainant got discharge therefrom on 26.04.2012. Annexture ‘A’ denotes that during discharge the Complainant was advised for rest, recording of temperature, plenty of fluids orally, some medicines and he was told to come before the OP-2 after getting X-ray of abdomen. He was also told by the doctor to keep contact in case of any problem. Thereafter the complainant went for post-surgery check up at the OP-2 on several occasions i.e. between 30.04.2012 to 30.06.2012. On 19.07.2012 as the Complainant felt acute pain in his lower abdomen with urinary problem and severe weakness he done the X-ray as per advice of the OP-2 from a local laboratory and visited the OPD of the OP-2 along with the said X-ray report on 21.07.2012. The Complainant again got admission at the OP-2 after thorough examination and investigation on 29.07.2012 for removal of Right DJ Stent, FLEXI URS etc. The discharge summary issued by the OP-2 dated 30.07.2012 reveals Right DJ Stent removal + Flexi URS+ HOLMIUM LASER LITHOTRIPSY done under general anesthesia on 29.07.2012. Under the heading of ‘operation notes’ it is written Cystoscopy- Urethra normal-Prostrate normal -Urinary bladder normal -Urine output normal – DJ removed under vision. Removal of stent was also done by Dr. Shivaji Basu. But from the reverse page of the discharge summary dated 26.04.2012 it is evident that on 26.04.2012 there is a signature of another doctor, namely, Dr. Subrata Mukherjee. Subsequently the Complainant again felt similar type of pain in his lower abdomen along with severe weakness and accordingly visited the Department of Urology of the OP-2 on 05.03.2013. He explained his problem in detail to the attending doctor of the hospital who after going through the post-surgery treatment papers and examining the Complainant physically simply prescribed some medicines and advised him to report again with X-ray/USG, investigation reports on the next visit. From Annexure ‘C’ it is evident that on 05.03.2013 the Complainant was examined by Dr. Santosh Kumar Maharaj. Thereafter the Complainant again felt similar type of pain in his lower abdomen with severe weakness on 10.11.2014. At this time he could not approach at the OP-1 due to his financial stringency as the OP-1 is a highly expensive treatment centre, so he rushed to the nearest State Govt. (SD Hospital) at Bidhannagar, Durgapur. After physical examination the attending doctor of the Govt. Hospital directed the Complainant to get admission immediately and thereafter certain clinical test/investigations along with X-ray KUB was also done. The Complainant got discharge on 12.11.2014 from the Govt. Hospital and the said Hospital advised to report the Complainant to the BMCH, Burdwan for further investigation and treatment. But the Complainant did not approach at the BMCH, Burdwan due to his adverse health condition and lack of suitable escort, not only that he could not move at that point of time conveniently and for this reason he went to the Mission Hospital, Durgapur, which is very near of his residence on 26.11.2014 along with all the medical papers and documents for a counter opinion. He reported his physical problem therein. The attending doctor of OPD, Mission Hospital had carefully gone through the entire treatment related papers (including surgery and post-surgery) and examined the Complainant physically. He was advised for X-ray KUB and other clinical tests by the said doctor. Accordingly X-ray KUB was done by the Complainant and from the said X-ray report it is revealed that the DJ Stent which was implanted during Urological surgery of right Ureteroscopy, RGP on 25.04.2012 at OP-2, the same is still lying therein. But the discharge summary dated 30.07.2012 issued by the OP-2 revealed that after operation on 25.04.2012 the DJ Stent was accordingly removed at the OP-2 on 29.07.2012 and after its removal the Complainant got discharge from the OP-2 on 30.07.2012. The allegation of the Complainant is that admittedly he got admission at the OP-2 for removal of DJ Stent, implanted in course of his surgery on 25.04.2012 at the OP-2 and the discharge summary dated 30.07.2012 shows that the DJ Stent was removed. But as the pain in his abdomen had not been subsided in spite of removal of DJ Stent, he approached before the Mission Hospital wherein it was detected that though the discharge certificate of the OP-2 dated 30.07.2012 reveals that DJ Stent was removed, but actually it was not at all removed and the same was lying at the operated site. According to the Complainant due to such existence of a foreign body he had to suffer severe abdominal pain and weakness for a prolonged period and to get rid of his pain he had to rush before the OP-2 on several occasions, but to no effect. According to the Complainant as this action proves the palpable medical negligence of the OP-2, hence he is entitled to get relief as sought for.
Accordingly patient got admission at the Mission Hospital, Durgapur on 07.12.2014 for removal of the DJ Stent and for this purpose further surgery was needed. After the removal of the DJ Stent through Cystoscopy on 08.12.2014 the Complainant got discharge on 09.12.2014. The document shows that Complainant had to bear expenses to the tune of Rs. 30,000=00 towards the hospital bill along with other incidental charges for his operation at the Mission Hospital, Durgapur. The Annexure ‘E/1’ issued by the Mission Hospital shows that the Stent was retained during that period. Annexure ‘E/3’ i.e. discharge summary of the Mission Hospital reveals that Stent removed. Therefore, it is clear to us form the discharge certificates issued by the OP-2, as well as, the Mission Hospital, entire treatment related papers of the Complainant that though the Complainant got admission at the OP-2 on 29.07.2012 for removal of the DJ Stent (Right) as per advice of the doctor of the OP-2 and in this connection he had to incur expenses and paid the same accordingly to the OP-2. But actually the operating doctor of the OP-2 had miserably failed to remove the Right DJ Stent, which was implanted during the course of surgery of right Ureteroscopy, RGP on 25.04.2012. We have noticed that no document has been issued by the OP-2 stating that the DJ Stent could not be removed by it. According to the Complainant as the DJ Stent was existing at the operation site he had to bear unbearable pain for a prolonged period and according to him such type of inaction and treatment can be termed as medical negligence on behalf of the OP-2. Admittedly, it is noticed by us when the Complainant could not bear his unbearable abdominal pain he had to rush to the Mission Hospital wherein for the first time it was detected through the X-ray KUB that the Stent is still exist and thereafter only the Complainant was advised to get admission at the Mission Hospital by the treating doctor for further surgery for removal of the DJ Stent. Uneventfully the Stent was removed by the surgeon of the Mission Hospital on 07.12.2014 and after such removal the Complainant got rid of his chronic health disorder. In our view to prove this type of medical negligence the expert opinion is not necessary because the document shows that there is medical negligence on behalf of the OP-2 because though in the discharge certificate of the OP-2 it was mentioned that DJ Stent was removed but subsequently the X-ray report shows that the Stent was not at all removed and the same was removed at the Mission Hospital on 07.12.2014.
The Complainant has prayed for direction upon the OP-2 to make payment to him a sum of Rs. 1,03,000=00 towards medical expenses, incurred by him for availing wrong and negligent medical treatment at the OP-2 along with interest @10% p.a., Rs. 3,31,400=00 as compensation due to medical negligence and deficiency in service on behalf of the OP-2 along with loss of his earning, harassment and mental agony, he also sought for litigation cost to the tune of Rs. 30,000=00. From the Annexure ‘G/14’ it is evident to us that admittedly he got admission at the OP-2 for removal of DJ Stent which was implanted during his operation and for removal of DJ Stent he had to incur medical expenses to the tune of Rs. 14,359=00 and the said amount was paid by him to the OP-2 accordingly. Annexure ‘G/15’ reveals the detailed breakup of the said amount towards the medical expenditure borne by him at the OP-2. In respect of such payment we are to say that though the complainant paid the said mount to the OP-2 for removal of the DJ Stent and after operation for removal he was under the impression that removal was done successfully. But subsequently as his abdominal pain did not subside and weakness was growing day by day, he had to approach before the nearest hospital i.e. Mission Hospital wherein he got knowledge for the first time through detection by the Mission Hospital that actually the DJ Stent was not removed on 29.7.2012 at the OP-2. Not only that as the same was lying as a foreign body in his abdomen, he was suffering from severe ailments and physical weakness. As the document proves that the OP-2 had miserably failed to remove the implanted DJ Stent from his abdomen on 29.7.12, hence in our considered view the OP-2 is not at all entitled to get the said amount of Rs. 14,359=00 from the complainant and accordingly the OP-2 is under obligation to refund the said amount to the complainant as soon as possible. Regarding prayer of making payment of compensation to the tune of Rs. 3, 31,400=00 by the OP-2 we are of the opinion that undoubtedly due to medical negligence, deficiency in service and lack of care of the OP-2 the complainant had to suffer physical problem, weakness, serious pain for a prolonged period and in this way he had to suffer not only physical pain but also harassment and metal agony. The complainant had to run from pillar to post to get relief from severe pain and weakness. It is seen by us that he approached on several occasions at the OP-2 but the OP-2 extended medical treatment to him in a very casual manner prescribing certain medicines and advising for X-ray. The OP-2 did not bother to take possible care to him that as to why the patient is suffering from acute pain and weakness inspite of removal of the DJ Stent. There is no iota of evidence in the medical document issued by the Op-2 regarding the result of the X-ray in the prescription. Such inaction and negligent treatment towards the patient/complainant certainly an example of medical negligence and deficiency in service. It is also true that to get rid of his physical disorder the complainant had to approach several hospitals and medical centers and for which he incurred some medical expenses, travelling expenses etc. Therefore, in our view it will meet the justice if we direct the OP-2 to make payment a sum of Rs. 1, 50,000=00 to the complainant as compensation due to mental, physical agony and harassment along with medical negligence and deficiency in service on behalf of the OP-2. As the complainant has approached before this ld. Forum by filing this complaint and in this way he had incurred some expenses towards litigation cost. As his grievance had not been redressed by the OP-2 before coming to the court of law, the OP-2 is also liable to make payment litigation cost to the complainant to the tune of Rs. 3,000=00.
Under the definition of negligence it is mentioned that ‘Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.’(Law of Torts, Ratanlal & Dhirajlal, 26th edition, 2010, page-474). In Halsbury’s Laws of England (5th Edition, vol-78) stated the nature of negligence liability as under:-
‘Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all.’
In Jacob Mathew vs. State of Punjab & Another (2005) 6 SCC 1, a three Judges Bench of the Hon’ble Supreme Court discussed the law of negligence under Tort Law, in extenso. It has been observed that negligence becomes actionable on account of injury resulting from the act of omission amounting to negligence attributable to the person sued. It was held in the paragraph no-11 that essential components of negligence, as recognized, are three- ‘duty’, ‘breach’ and ‘resulting damage’, that is to say:-
“(1) the existence of a duty to take care, which is owed by the defendant to the complainant;
(2) the failure to attain that standard care, prescribed by the law, thereby committing a breach of such duty; and
(3) damage, which is both casually connected with such breach and recognized by the law, has been suffered by the Complainant.
If the claimant satisfies the court on the evidence that these ingredients are made out, the defendant should be held liable in negligence.”
In the instant complaint the Complainant has successfully satisfied us on evidence that the abovementioned ingredients are present, hence we are of the view that there was obviously medical negligence and deficiency in service on the part of the OP-2.
In the paragraph no-18 of the Jacob’s case (Supra) it has been held that ‘………….. a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence…………. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did not possess………. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.’
In the case in hand the treating doctor of the OP-2 assured the patient that the implanted DJ stent has been removed successfully, but actually the same was not done and the real picture is that the stent was removed by another doctor at the Mission Hospital at a later stage and during that period the Complainant had to suffer from severe mental, physical and financial problem. Therefore it is clear to us from the record and available documents that the OP-2 had acted just contrary to the Law of this land. Therefore the OP-2 can be held negligent.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint be dismissed ex parte without any cost against the OP-1 and allowed ex parte with cost against the OP-2. The OP-2 is directed to refund a sum of Rs. 14, 359=00 (Rs. Fourteen thousand three hundred fifty nine) only paid by the Complainant on 29.07.2012 for removal of the DJ Stent along with interest @6% p.a. from the date of payment i.e. 29.07.2012 till realization to the Complainant within a period of 45 (forty five) days from the date of passing of this judgment. The OP-2 is further directed to make payment a sum of Rs. 1, 50,000=00 (Rs.One lac fifty thousand) only to the complainant as compensation due to mental, physical agony and harassment along with medical negligence and deficiency in service and litigation cost of Rs. 3, 000=00 (Rs. Three thousand) only within a period of 45 (forty five) days from the date of this judgment. In default the Complainant will be at liberty to put the entire decree in execution as per provisions of Law.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
