Dated : 06 Dec 2022

HON’BLE SUDIP NIYOGI             PRESIDENT

FACTS

            In short, the complainant filed this complaint alleging medical negligence against the OP. On 24.11.2019 in the morning, complainant who was 52 years old, accompanied by her son, went to the office of the OP to get her ears examined. Dr. Hasuli Das (audiologist) after examination of her ears, gave a report and submitted a quotation of Rs.14,390/- for a hearing aid machine including six pieces of battery and complainant made full payment of the said amount during that date. Said Dr. Hasuli Das (audiologist) examined her right ear thoroughly and found machine was smaller than the ear hole and not fitting properly. Then she put white chemical/ear mould inside her right ear hole to take the accurate size of the ear hole but it got so hard and stuck inside her right ear. She failed to remove the same. Thereafter, she was taken to Ruby hospital and Desun hospital but no ENT Doctor was available there. Then she was taken to Genesis hospital, there one Dr. Sonali Jana treated her but only 40% of the said material could be removed and she prescribed for consultation with ENT doctor as the same was in a critical condition. On the next day i.e. on 25.11.2019, she was taken into Dr. Soumitra Ghosh, who tried to remove the said material from her ear but only a part of that could be removed.

            Later, she was also taken to Amri hospital, but finally to Genesis hospital where said Dr. Soumitra Ghosh by conducting operation removed the remaining object from her ear on 26.11.2019. It is alleged that complainant suffered a lot of injury to her eardrum and it leaked. She further alleged that though said Dr. Hasuli Das and the OP promised to do everything for her ear treatment, but they did not keep their words.

              It is further claimed that after coming back home, complainant had a lot of problem and still suffered from ear pain and hearing problem and the machine did not fit in her ear and unable to use the said machine. She did not get the batteries as per the commitment of the OP. Complainant also alleged that wrong chemical was used by the Audiologist.

            Complainant, in this case prayed for refund of the amount she paid to the Opposite Party for the hearing aid machine and also compensation of Rs.75,00,000/- and cost of litigation.

            OP contested this case by filing a written version and adducing evidence. In the written version, the allegation of negligence was denied. According to them, the audiologist took necessary steps, so that, the hear-aid machine could be appropriately fitted in her ears and during the process a small particular of the mould was stuck in her narrow ear canal, which occurred accidentally. According to the OP, they took all the steps and ultimately at Genesis hospital, the particles was removed under general anaesthesia they denied having any negligence on their part as alleged by the complainant.

            Both the parties filed their evidence, documents and also exchanged questionnaires and replies thereto.

POINT FOR CONSIDERATION

Whether the complainant is entitled to get any compensation in this case?

FINDINGS

The complainant is found to have filed this case alleging medical negligence against the Opposite Party. Before delving into a detailed discussion, let us see the settled principle relating to allegation of medical negligence. First of all, in such a case, the onus to prove medical negligence largely lies on the complainant and the onus can be discharged only by way of cogent evidence [Ref: 2018 (2) CPR 296 (NC)]. Medical practitioner  is not to be held liable simply because things went wrong from mischance or misadventure or through any error of judgment in choosing one reasonable course of treatment in preference to another [Ref: 2022 (2) CPR 237 (SC)]. Again a mere accident is not evidence of negligence [Ref: 2022 (3) CPR 36 (NC)].

            Now, on going through the materials on record, we find several admitted facts which are as follows:-

The complainant had visited the Opposite Party for getting solution of her hearing problem on 24/11/2019. The audiologist Dr. Hasuli Das on examining her submitted a report where she diagnosed that both the ears of the complainant have Moderately severe degree of CONDUCTIVE hearing loss. Complainant purchased one hearing aid machine for Rs.14,390/- from the Opposite Party. Thereafter, said Dr. Hasuli Das took steps and prepared ear mould in order to see that the hearing aid machine could be fitted properly in her ear but during the process, a small particle of ear mould got stuck in her narrow ear canal and could not be removed. However, on 26/11/2019, the said particle was finally removed at Genesis Hospital by Dr. Soumitra Ghosh under general anaesthesia. For removal of the said particle from her ear, all the initiatives were promptly taken by the Opposite Party and the entire expenses of treatment and final removal of the particle were borne also by the Opposite Party.

            With all these facts having been admitted by the parties, we find the complainant alleged that wrong chemical was used and injected into her ear by said Dr. Hasuli Das.

            The materials on record revealed that in order to get the particle of ear mould removed from the ear of the complainant, she was taken to several hospitals but specialist was not found at several of such places and then at Genesis Hospital, the particle was removed finally. Naturally, the complainant had to suffer harassment to a certain extent, no doubt.

            Now, the most pertinent question is whether the said sufferings of the complainant was the consequence of the negligent act on the part of said Dr. Hasuli Das as alleged by her. According to Opposite Party, getting a small particle of mould into the ear occurred accidentally. It is contended that the ear moulds are usually best for hearing loss across the speech spectrum and are frequently used for people with several profound hearing loss. The mould used was made of silicon which is a softer material.

            The complainant in her reply to the questionnaire, particularly to Question No. 5 of the Opposite Party admitted unequivocally that the said incident of getting the mould stuck into her ear was accidental. She did not claim it to be the result of negligent act on the part of said Dr. Hasuli Das. We further find in the discharge summary issued by the Genesis Hospital that bilateral subtotal perforation noted due to chronic suppurative otitis media. No injury was found to the external auditory canal. Be it noted here chronic suppurative otitis media is a stage of ear disease in which there is an ongoing chronic infection of the middle ear without an intact tympanic membranes. This disease is a chronic inflammation of the middle ear and mastoid cavity. In this connection, Ld. Advocate appearing for the Opposite Party submitted that there was a small hole in the right ear of the complainant and a setting stuck of the said particle might be the result of such hole.

            Complainant is found to have given a probable cause for the said incident by alleging that wrong chemical was used in the ear mould by said Dr. Hasuli Das for taking measurement which she failed to establish here.

Regarding the other allegations as to the hearing aid machine not being fitted into her ear and thus, became unusable by her or that the batteries were not supplied to her as per commitment etc. as made in her petition of complaint, the complainant could not establish them. She failed to produce any paper, whatsoever, regarding these allegations showing that she had taken up all these matters with the Opposite Party after she got the hearing aid machine in November, 2019. So, these allegations, we think, were made for the purpose of making allegation only against the Opposite Party.

            Thus, having gone through the materials on record and following our discussion as made above we hold that the complainant has failed to establish her case for getting relief as prayed for.

            Therefore, the instant case is liable to be dismissed.

Accordingly,     it     is

ORDERED

That the instant case be and the same is dismissed on contest.

             No order as to cost.

Dictated and corrected by me.