HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER
This Complaint u/s 17(1)(a)(i) of the Consumer Protection Act, 1986 has been filed by the Complainant alleging medical negligence against the OPs with prayer for reliefs of Rs. 20,000/- for monetary loss, Rs. 30,00,000/- for physical pain, Rs. 40,00,000/- for mental sufferings and Rs. 20,000/- for cost of the proceedings.
Brief facts of the case, as emanating from the materials on records, are that the Complainant got admitted to the OP No. 1-Hospital on 29.3.2012 at 4.08 P.M., allegedly after waiting from 3.30 P.M., under the treatment of the OP No. 2-Doctor with complaint of ‘Pain right upper abdomen’, which was finally diagnosed as ‘Cholelithiasis’, and after admission ‘under GA laparoscopic cholecystectomy’ was done on 30.3.2012, as revealed from the ‘Discharge Summary’ dated 1.4.2012, but the abdominal pain and fever allegedly did not subside, and the fever and abdominal pain having not subsided the Complainant re-visited the OP No. 2-Doctor on 5.4.2012 when the OP No. 2-Doctor suspecting ‘viral’ fever, prescribed ‘Calpol 1 gm. QDS’, i.e. 4000 mg. per day, as revealed from the prescription dated 5.4.2012. It is also alleged that this prescribed dose of Calpol, i.e. Paracetamol, is excessive and such excessive dose of Paracetamol may cause ‘significant liver damage’. Even after taking the prescribed medicine when the abdominal pain and fever of the Complainant did not decrease, the Complainant again visited the OP No. 2-Doctor on 7.4.2012 when the OP No. 2-Doctor after examining the Complainant referred the Complainant to another doctor, being Dr. B.Sarkar, of the OP No. 1-Hospital. Thereafter, the OP No. 1-Hospital collected the histo-pathological report dated 4.4.2012 which reported “Received cut open gall bladder measuring 9x3x0.8 cm”, implying thereby that the Gall Bladder was removed. As per advice of Dr. B.Sarkar the Complainant got admitted to the OP No. 1-Hospital again on 8.4.2012 when the patient was treated allegedly for ‘Typhoid’ although the ‘Discharge Summary’ dated 12.4.2012 reveals the diagnosis as ‘Enteric fever’. Meanwhile, the Complainant was supplied with USG Report dated 7.4.2012 reported ‘Gall Bladder : Normally distended. Wall appears normal. No obvious calculus is seen’, implying thereby that the Gall Bladder was intact even after Cholecystectomy done on 30.3.2012 as alleged. With this factual background, the Complainant has moved this Commission with the instant Complaint.
The Ld. Advocate for the Complainant submits that even after Cholecystectomy on 30.3.2012, on the basis of the USG report dated 24.3.2012 of N.G.Medicare & Calcutta Hope Infertility Clinic, Kolkata – 700029 reporting presence of Calculus in Gall Bladder (in lumen), the second USG report dated 7.4.2012 of the OP No. 1-Hospital reported “GALL BLADDER : Normally distended. Wall appears normal. No obvious calculus is seen.” The USG Report dated 7.4.2012 in respect of presence of Gall Bladder clearly indicates absence of proper and diligent care on the part of the OP No. 1-Hospital when Cholecystectomy was done.
The Ld. Advocate adds that the OP No. 1-Hospital did not record the temperature on regular basis, which also points to the deficiency in service on the part of the OP No. 1-Hospital.
The Ld. Advocate continues that after admission of the Complainant for the second time, the Complainant was treated for ‘Typhoid’ although the ‘Serology Report’ of N.G.Medicare & Calcutta Hope Infertility Clinic, Kolkata – 700029 reports ‘Widal Test’ as ‘negative’, and that such improper treatment on the part of the OP No. 1-Hospital indicates deficiency in service on the part of the concerned doctor as well as of the OP No. 1-Hospital.
The Ld. Advocate adds that the OP No. 2-Doctor prescribed ‘Calpol 1 mg. QDS’, i.e. 4000 mg. per day, which is excessive and may damage the liver.
The Ld. Advocate also submits that the Complainant contacted the treating doctor, i.e. OP No. 2, when the necessity arose, but the OP No. 2-Doctor did not render due and proper service to the Complainant and such lapses on the part of the OP No. 2-Doctor constitutes deficiency in service on the part of the OP No. 2-Doctor as well of the OP No. 1-Hospital.
The Ld. Advocate concludes that in view of the aforesaid submission, it is clear that there was deficiency in service on the part of both the OP No. 2-Doctor and the OP No. 1-Hospital and hence, the Complaint should be allowed and the reliefs as prayed for be awarded.
On the other hand, the Ld. Advocate for the OP Nos. 1 to 4, repelling the submission of the Ld. Advocate for the Complainant, submits that the removal of Gall Bladder by means of Cholecystectomy by the OP No. 2-Doctor was uneventful and successful as is evident from the report of Histo-pathology dated 4.4.2012 of Super Religare Laboratories Ltd., Kolkata – 700017 to the effect “Received cut open gall bladder measuring 9 x 3 x 0.8 cm.”.
The Ld. Advocate adds that hence, the report of USG dated 7.4.2012 in respect of the Gall Bladder is nothing but an inadvertent typographical mistake and for such typographical mistake the Complainant did not suffer from the angle of treatment.
The Ld. Advocate also submits that the ‘clinical chart’ of the OP No. 1-Hospital for the period from 29.3.2012 to 12.4.2012, as available on records, clearly exhibit that the temperature of the Complainant was scrupulously monitored.
The Ld. Advocate continues that after admission of the Complainant on 8.4.2012 with complaint of fever, the Complainant was given ‘empirical treatment’ to arrest the temperature suspecting ‘enteric fever’ without mentioning ‘Typhoid’ pending the test report as per standard practice and such ‘empirical treatment’ resulted in fall of temperature.
The Ld. Advocate adds that the dose of ‘1 gm. of Calpol QDS’, i.e. 4000 mg. per day, as prescribed by the OP No. 2-Doctor, is within the medical limit, as is evident from the Publication in the website The Ld. Advocate also submits that the Complainant did not follow the advice of the treating doctor as is evident from not doing the tests as per advice by the OP No. 2-Doctor on 5.4.2012 when the Complainant was admitted further, which indicates negligence on the part of the Complainant.
The Ld. Advocate further submits that the expert-opinion on affidavit by Dr. Ramesh Agarwala with 27 years experience in Laparoscopy and Gastrointestinal surgery, as available on records, indicates that “Gall Bladder was removed and the enteric fever or urinary tract infection are both unrelated to the surgical complications”.
The Ld. Advocate also submits that Dr. B.Sarkar, being the treating doctor, having not been made a party to the Complaint Case, the case suffers from non-joinder of party.
The Ld. Advocate concludes that the above submission and expert-opinion clearly indicate that there is no medical negligence on the part of the OP No. 2-Doctor and the OP No. 1-Hospital as well as the OP No. 3 and the OP No. 4.
In support of such submission, the Ld. Advocate refers to the following decisions of the Hon’ble National Commission:
- Tarlok Chand Mattu Vs. Vasal Hospital & Ors., decided on 31.1.2017 in Revision Petition No. 2369 of 2016.
- Ashok Kumar roy Vs. Oriental Insurance Co. Ltd. & Ors., decided on 28.7.2009 in Original Petition No. 440 of 2002.
- Bajaj Allianz Insurance Co. Ltd. Vs. Ranjit Kumar Sarkar, decided on 9.12.2012 in Revision Petition No. 2246 of 2012 and First Appeal No. 36/2011.
- Real Ispat and Power Limited Vs. Oriental Insurance Co. Ltd. & Ors., decided on 28.7.2016 in Revision Petition No. 1653 of 2015.
- Tushar Maternity and Surgical Nursing Home Vs. Dhanashri Dhananjay Savardekar & Ors., decided on 5.4.2016 in First Appeal No. 791 of 2015.
- Mandar Jadhav Vs. Riya & Ors., decided on 15.2.2017 in Cosumer Case No. 109 of 2011.
Heard both the sides appearing, considered their respective submission and perused the materials on records.
A brief perusal of the materials on records shows that the Complainant has not been able to establish with cogent evidence including expert-opinion that the OP No. 2-Doctor had not rendered the necessary treatment as per standards of normal medical protocol and that the OP No. 2-Doctor had not diagnosed the disease properly and that the OP No. 2-Doctor and the OP No. 1-Hospital did not render proper and diligent care which ought to have been rendered to the Complainant. In this context, reliance is placed on the decisions of the Hon’ble National Commission in Garlapati Kameshwara Rao & Anr. Vs. Pinnera Superspeciality Hospital, reported in 2016 (4) CPR 569 (NC) and Usha Lakshman & Ors. Vs. Dr. N.Chandrasekhar & Anr., reported in 2016 (1) CPR 794 (NC), wherein it was decided that the Complainant has to adduce expert-evidence on the basis of which it can be presumed that the OPs were deficient in providing treatment, which is lacking in the case on hand.
As regards the report about the Gall Bladder in the USG Report dated 7.4.2012, it is clear that there was an inadvertent typographical mistake in respect of the report of the Gall Bladder and for such typographical mistake there was no deficiency in treatment of the Complainant.
The aforesaid facts, submission of the Ld. Advocate for the OP Nos. 1 to 4 rebutting all the allegations with cogent evidence including expert-opinion and discussion lead to the conclusion that no negligence can be attributed to the OPs and hence, the Complaint is dismissed. No order as to costs.
