Order-29.
Date-16/02/2018.
Shri Anupam Bhattacharyya, President.
The instant complaint has been filed by the Complainant u/s 12 of the CP Act praying for payment of Rs,5,83,637/- for compensations against cost incurred on of her treatment and others for harassment and for expenses for additional stay at Fortis Hospital, Anandpur plus simple interest at the rate of 7 percent p.a from 26.06.2016 till payment.
The Complainant’s case, in brief, is that the Complainant is a practicing cardiologist aged about 67 years, who had been suffering from spinal cord compression with the symptoms included numbness and weakness in the legs, loss of balance and inability to stand continuously. As per estimation sheet dated 02.06.2016 for her proposed surgery including implant cost of Rs.85,000/- is Rs.2,45,000/- The Complainant deposited Rs.5,000/- on 08.06.2016 and Rs.1,00,000/- on 16.06.2016 and was admitted at Fortis Hospital, Anandpur on17.06.2016 and date of operation was scheduled on 18.06.2016. After CT Scan, Dr. Amitava Chanda opined that at that time implant was not possible and cost come down to Rs.1,60,000/-. For preparation of operation Complainant was advised to take bath on her own despite being fully aware of the aforesaid symptoms of the Complainant. The Complainant was neither offered bed-pan nor urinal nor sponge bath by the attendants/nurses on 17.06.2016. The Complainant fell down in the bathroom while having bath on her own and caused fracture in her right femur (thigh bone). Owing to such fracture of right femur, spinal cord decompression surgery had to be postponed and Complainant undergone treatment of her right femur on 18.06.2016 and for the two major surgeries estimated cost of Rs.1,60,000/-. the bill had gone up to Rs.3,20,000/-. The hospital authority offered a partial rebate of Rs.65,000/-. The Complainant was constrained to pay a sum of Rs.2,55,037/- as a precondition of her release from the hospital. An excess sum of Rs.95,037/- over above Rs.1,60,000/- for spinal cord decompression surgery had to be borne by the Complainant by depleting her savings at this stage where there was no fault of her own. Complainant being a doctor herself by profession earns on an average a sum of Rs.25,000/- per month and at this stage she had loss of her earnings at least Rs.25,000/- X 5 months Rs. 1,25,000/-. From 26.06.2016 to 21.11.2016 she had incurred Rs.67,050/- for aayas and physiotherapist and for availing one month services of physiotherapist Rs.15,000/- and over stay at the hospital paid Rs. 4,050/- for aayas from 22.11.2016 to 29.11.22016.
Complainant has been harassed beyond all reasonable means due to gross negligence on the part of OPs and for no fault of her own and prayed before this Forum for redressal of Rs.86,100/- on account of aayas and physiotherapist, Rs.1,25,000/- for loss of earnings, Rs. 20,000/- for Medicines and equipments Compensation of Rs.2,50,000/- for mental agony, Rs.95,037/- for expenses for additional stay at Fortis Hospital, Anandpur, Rs.7,500/- for cost of legal notice etc. and a simple interest at the rate of 7 percent p.a.to be calculated on the sum of Rs.95,037/- w.e.f. 26.06.2016 till payment for negligence on the part of OPs. Complainant served legal notice dated 21.11.2015, 24.11.2016, 26.11.2016, but the OPs deliberately remained silent. Finding no other alternative complainant filed this complaint to this Forum. Hence, the complaint case.
The written version of the OPs 1, 2, 7 & 8 in brief is that they have challenged the entire allegations of complainant. They are insured with New India Assurance Co. Ltd. There is no cause of action in this case. They are not liable for payment of any claim of the Complainant and prayed for dismissal of the instant complaint. Hence, the instant written version.
The written version filed by the OPs 3 to 6, in brief, is that then OP No. 5 is a well qualified reputed doctor since 1998. They are insured with the New India Assurance Co. Ltd. for the period from 01.04.2016 to 31.03.2017. The patient herself is a doctor. She wanted to take bath in privacy like at home and refused for a sponge bath where all other 5 patients were given sponge bath on the same day. The Complainant used to take bath at home while sitting on the floor. Complainant being a doctor of the hospital, staff nurse respected her and they heeded to her wishes, the whole incident of fall happened because of the sole negligence of the patient. After stability from post operative phase of orthopedic surgery 18.06.2016 and 23.06.2016 under general anesthesia, there was no negligence, unfair trade practice or deficiency of service on their part. Complainant was suffering due to old age and osteoporotic condition of bone. The discount was given on humanitarian ground on request from the patient’s son and it should not be construed as negligence on their part. They are not responsible and prays for dismissal of the case. Hence the w.v.
Considering the pleading of both sides the following points have been raised.
Points for Decision
- Whether the case is maintainable in its present form and law?
- Whether there is any cause of action to file the case?
- Whether the case is barred by limitation?
- Whether the complainant is entitled to get the relief as prayed for?
- What other relief/reliefs the complainant is entitled to get?
Decision with Reasons
Points No.1 to 5 . All the points are taken up together for the brevity of discussion and convenience.
The instant complaint is for payment of Rs.5,83,637/- in total for compensation towards cost of treatment and for additional stay in the hospital and for other purposes.
The complainant’s main case is that she is a 67 years old Senior Cardiologist Lady Doctor suffering from spinal cord compression whose estimated cost came down to Rs.1,60,000/- and she was admitted for operation on 17-06-2016 and operation was scheduled to be held on 18-06-2016. For the negligence from the side of the OPs she fell down and sustained fracture injury in her right femur and for that the proposed operation had to postpone and the estimated expenditure increased and for that the additional stay in the hospital being increased the complainant had also to suffer loss in her professional income and other expenses.
On the other hand the OP has denied the allegation as to negligence on the part of the OP. The OP’s main case is that the incident of fall happened because of sole negligence of complainant patient. The complainant wanted to take bath in privacy like at home and refused for a sponge bath where other 5 patients were given sponge bath on the same day. The complainant was suffering due to old age and osteoporotic condition of bone. They are not responsible for the incident of fall and they are not liable to pay any compensation and prayed for dismissal of the case.
To prove the case both the parties have adduced Evidence on Affidavit and they have filed questionnaires and replies vis-à-vis along with the relevant documents in support of their respective case.
This is not a case of medical negligence.
It is clear from the materials on record adduced by both sides that there is no allegation as to negligence in the operation and post operation. There is only allegation as to negligence before operation due to the fall causing femur fracture during taking bath.
In this regard, it is the case of the OP that from the side of the OP Hospital the patient complainant was asked for sponge bath on the date of operation and the same was refused by the complainant patient who is admittedly a very senior lady doctor aged about 67 years where the other nurses used to respect her and they heeded to her wishes.
There is no denial from the side of the complainant as to the OP’s case on the point of refusal of the sponge bath by the complainant.
Be that as it may it is clear from the materials on record that this senior lady doctor was admitted for operation of her spinal cord compression with symptoms of numbness and weakness in the leg, loss of balance and inability to stand continuously.
Further, from the averment in the written version it is clear that the doctor had clear knowledge that complainant was suffering due to old age and osteoporetic condition of bone.
If that be so, then the doctor and hospital authority and the nurse should be very much cautious about this condition and in that case the question of respect and to allow her to bath without any help should not be allowed.
This is obviously a case of negligence.
It is clear that for the femur fracture the operation in question was postponed and for that treatment was delayed and cost of treatment obviously increased for the femur fracture.
In this regard, it appears that the estimated cost previously was Rs.1,60,000/- and for the total treatment including the treatment of her right femur the total bill was Rs.3,20,000/- where hospital authority offered a partial rebate of Rs.65,000/- and the complainant had to pay Rs.1,55,037/- and, as such, the complainant had to pay excess of Rs.95,037/- over the estimated cost of operation previously was fixed at Rs.1,60,000/-.
Considering the argument advanced by both sides and also considering the materials on record adduced by both sides the question of contributory negligence on the part of the complainant has cropped up.
To our mind the complainant being a Senior Lady Doctor, she ought to have very cautious at the time of bathing as well as refusal of sponge bath and for that contributory negligence we are of view that complainant is to contribute towards excess payment of Rs.95,037/- partially and to that effect we are of view that complainant is entitled to get compensation towards excess payment for Rs.50,000/-.
Regarding loss of income and other expenses towards attendants the same has not been categorically established by cogent evidence or in other words for the operation it was obvious to bear the expenses for attendant. There is no categorical demarcation or specific amount incurred towards attendant cost for femur fracture and for that we are of view that the relief claimed to that effect cannot be given to the complainant.
On the basis of above discussions as a whole, we find that all the points are disposed in favour of the complainant in part and, as such, the complainant is entitled to get compensation of Rs.50,000/- towards excess expenditure for the treatment along with litigation cost of Rs.2,000/-.
Hence,
Ordered
That the instant case No.586 of 2016 be and the same is allowed in part on contest.
OPs are directed to pay to the complainant Rs.50,000/- towards excess expenditure for the treatment along with litigation cost of Rs.2,000/-.
OPs are directed to comply the order within 30 days from the date of this order failing which the OPs are to pay fine at the rate ofRs.100/- per day delay and the amount so accumulated should be deposited to this Forum.
Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision of the C.P. Act.
