DATE OF FILING                    :     07-08-2013.

DATE OF S/R                            :      25-09-2013.

DATE OF FINAL ORDER      :     05-09-2014.  

1.         Monmohan Ghosh,

57/1, Kali Banerejee Lane,

P.S. & District – Howrah.

2.         Howrah  District  Consumer Protection Society,

a  registered voluntary  Consumer Association,

7, Baran  Chandra Das  Road,

Howrah – 711 101. --------------------------------------------------- COMPLAINANTS.

-          Versus   -

1.         Howrah Assembly,

24/1, Kali Kundu Lane,

Howrah – 711101.

2.         Howrah Lions Hospital,

9, Nityadhan Mukheerjee Road,

Howrah – 711 101.

3.         Dr. Shiladitya Mukherjee,

            MBBS   DO Sector – 1, CD-182, Salt Lake City

            near City Centre, Salt Lake Point School,

            Kolkata – 700 064.

4.         Dr. Ranjan Chowdhury,

            MBBS ( Cal ), DO (Cal ), MFCO ( Delhi ),

            180, Jodhpur Park,

Kolkata – 700 068.-------------------------------------------------OPPOSITE PARTIES.

                                                P    R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.               The instant case was filed by complainant U/S 12 of the C.P. Act, 1986 wherein the complainant has  prayed for compensation of Rs. 15 lakhs for deficiency in service in medical treatment for faulty operation in the right eye of the complainant no. 1 together with interest @ 18% p.a. from the date of operation till full realization and to pay litigation costs. 

2.               The complainant no. 1 as per the arrangement of o.p. no. 1  was admitted in the o.p. no. 2 hospital  for   undergoing his right  eye cataract  operation by paying a package cost of Rs. 5,000/-. After the operation, he started feeling severe pain on his operated eye. He was administered medicine by the o.p. no. 3 doctor who conducted the operation on 08-02-2013. As the pain did not subside he again visited the o.p. no. 2 hospital with severe pain and the o.p. no. 3  doctor prescribed the medicine by telephone as he was not available on that date. Again he was readmitted in the o.p. no. 2 hospital on 13-02-2013 as the pain continued. Now the o.p. no. 3 referred the complainant no. 1 to o.p. no. 4 doctor on the next day i.e., 14-02-2013. After examination the o.p. no. 4 doctor  sent the complainant to Implant House Laser & Diagnostic Centre at 40A Beck Bagan Row, Kolkata – 17, and on the same date he was taken back to o.p. no. 2  hospital by ambulance. As there was no sign of remission the o.p. no. 4 doctor advised him to consult any other doctor of any other hospital and was released on personal bond. Subsequently the complainant no. 1 was taken to Sankara Netralaya 147, Mukundapur EM Byepass, Kolkata – 99. Dr. S.S. Pal in his case summery opined faulty operation by the previous doctor ( Annexure G ) and conducted further operation. The complainant had to incur an expenditure to the tune of  Rs. 30,000/-. Hence the case.     

3.                  The o.p. no. 1 in their written version denied the material allegations and

contended interalia that they committed no deficiency in service as it was a free eye operation camp conducted at their behest.

4.                  The o.p. no. 2 in their written version contended interalia that they tried at their

level best to give necessary treatment and relief to the complainant no. 1 and they were ignorant about the subsequent development of the patient; that identical eye operation camps are organized every year; that they did not commit any deficiency in service.

5.                  The o.p. no. 3 in his written version denied all the material allegations and

contended interalia that he visits o.p. no. 2 hospital on  Wednesday  and Friday and receives a very paltry honorarium of Rs. 200/- each day ; that he received no operation charge from the complainant ; on the request of the o.p. no. 2 he conducted the operation and no question of deficiency in service does arise ; that the complainant himself is responsible for any infection for lack of care.  

6.                  O.p. no. 4 in his written version stated that he did not conduct the operation

and only advised the patient for his vision test and for better treatment by any other hospital ; he did not commit any deficiency in service or medical negligence.

7.                  Upon pleadings of  parties two points arose for determination :

i)          Is there any deficiency in service on the part of the O.Ps.  ?

ii)                  Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

8.                  Both the points are  taken up together for consideration. As per advice of the

o.p. no. 2 the complainant was admitted to the hospital on 08-02-2013 for cataract operation on his right eye and deposited Rs. 5,000/- as the package. After  operation on the  same afternoon he started feeling acute pain on her operated eye. On 10-02-2013 he was discharged from the hospital.  

9.                           The o.p. no. 3 conducted the operation. On telephone, he prescribed certain medicine. As the pain continued, the complainant was readmitted in the o.p. no. 2 hospital under the same doctor o.p. no. 3. He prescribed long list of medicines and ultimately referred him to o.p. no. 4 doctor who after examining advised him to Implant House Laser and  Diagnostic Centre at 40A, Beck Bagan Row, Kolkata – 17.

10.                       After undergoing vision examination in the said centre, the complainant came back to the o.p. no. 2 hospital by o.p. no. 2’s ambulance assisted by their staff. Now the o.p. no. 4 advised the complainant to go to any hospital for better treatment.

11.                       The complainant was thereafter taken to  Sankar Netralaya at Mukundapur EM Byepass, Kolkata – 99, and was admitted their immediately for gross medical negligence.

12.                       Annexure  G is the case summary prepared by Dr.  S.S. Pal on examination of the complainant. It reflects severe conjunctival congestion with corneal abscess formation; papillary membrane found in the axis ; endopthalmitis with corneal involvement in the right eye detected.  The complainant was accordingly  operated and the complainant had to stay there till 23-02-2014 and to incur expenses to the tune of Rs. 30,000/-. Now the patient has been experiencing steady recovery.

13.                       It hs been agitated by the o.ps. that the complainant’s right eye developed endopthalmitis for sheer negligence  of the complainant. He did not take proper care to avoid infection. So the o.ps. cannot be held responsible. O.ps. further argued that the doctors did not receive any charge for operation and as such there cannot be any case of medical negligence.

14.                       In deciding the issue of medical negligence on the part of the o.p. no. 3 as alleged, we are not unmindful of the guidelines as prescribed by the Hon’ble Apex  Court in good many cases that the attending doctor  i) is possessed of skill and knowledge for that purpose ; ii) he owes a duty of care in deciding whether to undertake the case ; iii) a duty of care in deciding what treatment to give ; iv) a duty of care in the administration of that treatment.

15.                       In the Medical Association  Vs. V.P. Santha Hon’ble Apex  Court set at rest the dispute over the periphery of damage claim by pronouncing that patients aggrieved by any deficiency in treatment from both private clinics and Government Hospitals, are entitled to seek damages under the  C.P. Act, 1986 if the doctors receive charge for treatment or consultation etc.

16.                       In the instant case the complainant deposited Rs. 5,000/- as package charge for his right eye cataract operation to the o.p. no. 2 hospital ( Annexure – B ). As soon as it is proved that the charge whatever be its quantum, was received, the o.p. no. 3 doctor  cannot have any respite from the rigours of law. The o.p. no. 2 and 3 are now naturally framed within the ambit of the land mark judgment of the Hon’ble Apex  Court as reported in AIR 1996  S.C. 550 as the service rendered by the o.p. no. 2 and 3 is covered by Section 2(1)(o)  of the  C.P. Act, 1986.

17.                       With respect to the negligence on the part of the o.p. nos. 2 & 3 we are of the view that the attack of endopthalmitis on the operated eye ( right eye ) of the complainant cannot be ascribed to the lack of care by the complainant himself, rather it was the ultimate result of the recklessness of the doctor o.p. no. 3. We are not raising any suspicion on the competency and skill of the o.p. no. 3 doctor. In spite of his required skill, negligence was committed for the hot haste adopted by him for conducting several cataract operation in a row on the same date. That  medical negligence was committed while operating the complainant is evident from the subsequent events as discussed above. With his troubled eye he had to loiter from pillar to post seeking redress.  What better instance of medical negligence can be than this?  Eye is our most precious organ. If the same is rendered visionless for faulty operation conducted by o.p. no. 3 doctor, he is to be held responsible for such negligence.

           We are, therefore, of the views that this is a fit case where the prayer of the complainant shall be allowed. Both the points are accordingly disposed of.           

      Hence,

O     R     D      E      R      E        D

      That the C. C. Case No.  270 of 2013 ( HDF 270 of 2013 )  be  and the same is allowed on contest with  costs as   against  the O.P. nos. 2 & 3 and dismissed on contest without costs as against the o.p. nos. 1 & 4.   

      The O.P. nos. 2 & 3  jointly or severally do pay a sum of Rs. 2 lakhs to the complainant as compensation for causing medical negligence, pan and prolonged harassment within  30 days from the date of this order

      The o.p. nos. 2 & 3 do further  pay jointly or severally Rs. 5,000/- to the complainant as litigation costs.

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

  (    T.K. Bhattacharya  )                                              

  President,  C.D.R.F.,Howrah.