Presented by: -
Shri Debasish Bandyopadhyay, President.
This case has been filed by the complainant against the O.ps. for passing direction upon O.p. nos.1 to 3 to pay an amount of Rs.3,00,000/- as the cost of medical treatment and also for passing direction upon O.p. nos.1 to 3 to pay an amount of Rs.15,99,900/- as compensation to the complainant for medical negligence, deficiency of service, harassment, financial lose and mental agony and also for passing direction upon the O.p. nos.1 to 3 to pay an amount of RS.1,00,000/- to the complainant as litigation cost and also for other reliefs.
Fact of this case
Case of the complainant :
The case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that on 01/10/2017 at about 3.00 p.m. the complainant was admitted to Proforma No.5/Hospital for his medical treatment as he had been suffering from severe abdominal pain and complainant was admitted there upto 07/10/2017 for his treatment and after several medical tests at the proforma O.p. no.5/Hospital it was told to the complainant and his family members that he has been suffering from abdominal pain due to his gallbladder stone which is needed to be operated for getting relief. It is submitted that thereafter the complainant went before the O.p. no.1 for his further treatment and O.p. no.1 referred the complainant to Dr. Naba Kumar Saha and the said doctor prescribed for some medical tests and diagnosis and then the complainant once again visited at the O.p. no.1/Hospital as per advice of Dr. Naba Kumar Saha who advised for operation. It is alleged that the O.p. no.1 told the complainant for micro-surgery of the gallbladder stone the cost of which would be Rs.17,000/- and the complainant was directed to pay an advanced amount of Rs.11,100/- at the time of admission before the O.p. no.1/Hospital and then on 21/11/2017 the complainant deposited the said amount and was admitted at the O.p. no.1/Hospital and thereafter he was transferred before surgical department for treatment under the O.p. no.2. According to the case of the complainant side the operation was done on 22/11/2017 by O.p. no.2 and the complainant was taken at about 11.00 a.m. for the O.T. and after two hours the O.p. no.2 came out from the O.T. and told the family members of the complainant that micro-surgery of the complainant was failed and so O.p. no.2 has done open surgery. It is pointed out by the complainant that soon after the surgery the O.p. no.2 left the hospital and till the evening the complainant was not examined by any doctor and the bleeding from surgical area never stopped and thereafter the family members of complainant told O.p. no.1/Hospital staff for several times to make contact with the doctor but they neglected to do anything. It is further alleged that thereafter on 22/11/2017 at about 7.30 p.m. the O.p.no.2 transferred the patient before the O.p. no.3 and the O.p. no.2 also came before the O.p. no.3 and the O.p. no.3/Nursing Home Authority directed the complainant’s family members to deposit an amount of Rs.9,750/- for ICU charges and petitioner’s family members paid the same but after expiry of four hours the condition of the patient was more critical and the patient became unconscious and thereafter at about 11.30 p.m. the O.p. no.2 finding no other alternative transferred the complainant before the proforma O.p. no.4 for treatment. It is the case of the complainant side that on 23/11/2017 at the proforma O.p. no.4 one O.T. was done and they found 500ml of blood sebhepatic region, left subphrenic space and pelvis, bleeding from cystic artery stump, transacted right accessory ant sectoral duct, previously made right subcostal incision extended laterally and to midline. It is also pointed out that after prolonged treatment the complainant became stable but due to negligent Act of O.p. nos.1 to 3 the complainant has lost his ability of work at the age of 40 years and for all these reasons the complainant has prayed for passing direction to the O.p. nos.1 to 3 for payment of cost of medical treatment, compensation and litigation cost.
Defence Case :-
In this complaint case the O.p. nos.1 & 5 in spite of service of notice have not contested this case and also have not filed any w.v. AS a result of which this case is running ex-parte against O.p. nos.1 & 5.
The O.p. no.2 after entering appearance in this case has contesting this complaint case by filing written statement where the O.p. no.2 has practically denied the each and every allegations of the complainant which has been highlighted in the complaint petition. According to the case of the O.p. no.2 he is ensured with “Oriental Insurance Company Limited” through it’s professional indemnity policy no.311700/48/2017/11207 effective from 31/01/2017 to 30/01/2018 and the O.p. no.2 is a well qualified and reputed doctor with substantial good will and experience for long standing successful medical practice. It is pointed out that the complainant came to O.P.D. of O.p. no.1/Hospital on 21/11/2017 with all reports having calculus Cholecystitis for which laparoscopic cholecystectomy operation was advised and O.p. no.2 admitted the said patient for operation on 21/11/2017 and patient was taken to O.T. for the said operation but laparoscopic operation was not possible for which open surgery was conducted after taking consent of the patient party and after operation the patient was shifted to word in good post operative condition and at about 4.45 p.m. on the same day R.M.O. called O.p. no.2 over phone stating that the patient B.P. was low and there was blood collection on the drainage bag and one bottle blood requisition was done and the O.p. no.2 attended the said patient at 5.00 p.m. and noted that the patient needs operation (re-exploration) to stop bleeding and as there was no I.C.C.U. and higher facilities were available at O.p. no.1/Hospital the patient was shifted to O.p.no.3/Nursing Home after obtaining consent from the patient party at about 6.30 p.m. under the care of O.p. no.2 and treatment was started there and the patient was conscious and stable but after discussing with the patient party and Dr. Bhansali (Senior Cardiologist of O.p. no.3/Nursing Home), it was decided to shift the patient to O.p. no.4/Hospital and as such the patient was transferred from O.p. no.3/Nursing Home to O.p. no.4 and O.p. no.2 personally accompanied the patient in ambulance and admitted the patient at O.p. no.4/Hospital at about 12.40 a.m. and on admission the patient was stable and conscious. It is also stated by O.p. no.2 that after handing over the said patient to R.M.O. of O.p. no.4/Hospital the O.p. no.2 left the said hospital at about 2.00 a.m. As per case of the O.p. no.2 there was no deficiency of service and negligence on the part of the O.p. no.2 and for all these reason the O.p. no.2 has prayed before this District Commission for dismissing this complaint case with heavy cost.
O.p. no.3 and profoma O.p. no.4 are also contesting this case by filing their respective w.v. and the specific case of the O.p. nos.3 & 4 is that this complaint case which is filed by the complainant is not maintainable and this case has been filed by the complainant on flimsy ground and the complainant has no ground or locus standi for filing this case against the O.p. nos.3 & 4. According to the case of the O.p. nos.3 & 4 during this stay of the complainant the O.p. nos.3 & 4 provided all sorts of service according to norms and the complainant had only stayed at the O.p. no.3/Nursing Home only for four hours. It is also pointed out that this District Commission/Forum has no jurisdiction to try an entertain the instant complaint. It is alleged that there is no specific allegations of negligence and deficiency of service against O.p. no.3 and O.p. no.4. It is contended that after admission of the said patient at the O.p. nos.3/Nursing Home and O.p. no.4/Hospital all necessary medicines were administered. It is alleged that there is no negligence or deficiency of service on the part of the O.p. nos.3 & 4 and for all these reasons the O.p. nos.3 & 4 have prayed before this District Commission for dismissing this complaint case with heavy cost.
Points of consideration :-
On the basis of the pleadings of the parties adopted by the complainant and contesting O.ps. in this case, this District Forum/Commission for the purpose of arriving at just and proper decision and also for deciding the fate of this complaint case, is going to adopt the following points of consideration :-
- Has this District Commission any jurisdiction to try this case ?
- Whether the complainant is the consumer under the O.ps. or not?
- Whether this case is maintainable in its present form and in the eye of law or not ?
- Is there any cause of action for filing this case by the complainant in this case or not?
(v) Is there any negligence, fault and deficiency of service on the part of the O.ps. or not ?
(vi) Whether the complainant is entitled to get the order passing direction to the O.p. nos.1 to 3 to pay cost of medical treatment, compensation and litigation cost or not?.
(vii To what other relief / reliefs the complainant is entitled to get in this case?
Evidence on record
The complainant in order to prove his case has submitted evidence on affidavit and against the said evidence on affidavit the O.p. nos.2 to 4 have submitted interrogatories and complainant has given reply against the said interrogatories.
On the other hand, the O.p.nos.2 to 4 in order to disprove the case of the complainant have filed evidence on affidavit and against the said evidence on affidavit the complainant has filed interrogatories and against such interrogatories the O.p. nos.2 to 4 have given reply. Both parties also have filed documents in support of their respective cases.
Argument highlighted by Ld. Advocates of both parties
The complainant side and O.p. nos.2 to 4 have filed their separate BNA in this case. Besides filing of the B.N.A., Ld. Advocates for the complainant and O.p.nos.2 to 4 also have highlighted verbal argument and referred series of case laws. Complainant side referred the case laws (2010)5 Supreme Court cases 513, Page 513-534 and (2011)3 WBLR(CPNC) 658, Page 658 – 663. O.p. no.2 referred the case law which is reported in CIVIL APPEAL NO.1385 OF 2001 in the case of Kusum Sharma & Others vs Batra Hospital & Medical Centre & Others and the O.p. nos.3 & 4 referred the case laws AIR2018 Supreme Court page 4625.
Decision with reasons
The first four points of considerations which have been framed on the ground of jurisdiction, whether the complainant is the consumer under the O.ps. or not, whether this case is maintainable in its present form and in the eye of law and whether the complainant has any cause of action for filing this case or not are very vital issues for determination of the fate of this case and so these four points for consideration are clubbed together and taken up for discussion jointly at first.
For the purpose of deciding the fate of the above noted four points of consideration this District Commission finds that there is necessity of making scrutiny of the material of this case record and there is also urgency for scanning the evidence on record.
In this regard, it is important to note that the jurisdiction issue is a vital issue and to decide the fate of this issue, this District Commission after going through the materials of the case record finds that the complainant has been residing at Dasnagar, Howrah and O.p. nos.1 to 3 and O.p. no.5 are carrying on their business and continuing their medical centers within the District of Howrah. This factor is clearly reflecting that this District Commission has its territorial jurisdiction to try this case. In this connection this District Commission after making scrutiny of the materials of this case record finds that the total claim of the complainant is far below than that of Rs.20,00,000/- which is the highest limit of pecuniary jurisdiction of a District Forum under the Consumer Protection Act, 1986. So, it is crystal clear that this District Commission has its territorial and pecuniary jurisdiction to try this case. In view of such position, the jurisdiction issue is decided in favour of the complainant side.
Now the question is whether the complainant is a consumer under the O.ps. or not? Relating this issue this District Commission after going through the materials of the case record, finds that the complainant was medically treated at O.p. no.1/Hospital and O.p. no.3/Nursing Home and at O.p. nos.4 & 5 (Hospital) against payment of fees. It is also revealed that the O.p. no.1 and O.p. nos.3 to 5 also have taken the fees from the complainant for his medical treatment. It is also reflected from the case record that the O.p. no.2 conducted the surgical operation of complainant at O.p. no.1/Hospital and medically treated the complainant at O.p. no.3/Nursing Home after receiving fees. All these factors are clearly reflecting that the complainant is a consumer under the O.ps.
Now the question is whether this case is maintainable in its present form, fact and in the eye of law or not?
In order to decide this issue this District Commission after going through the pleadings of the parties finds that complainant was medically treated at O.p. nos.1 & 3 Hospital by O.p. no.2 and was also medically treatment at proforma O.p. nos.4 & 5 (Hospital) for his problem of Gallbladder stone which was operated by O.p. no.2 at O.p. no.1/Hospital but after the said operation there was bleeding at the operation area of the complainant for which the complainant was shifted to O.p. no.3/Nursing Home and finally at O.p. no.4/Hospital for medical treatment. It is also reflected from he evidence on record after prolonged treatment at O.p. no.4/Hospital the complainant was in stable condition but the complainant has lost his ability of working. All these factors are clearly depicting that the complainant has cause of action for filing this case against the O.ps. In this regard, it is the settled principle of law that term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in follow up care, at any point of time by treating doctors or anyone else it is always open to be considered by the Commission. This legal principle has been observed by Hon’ble Apex Court in the case of Chandra Rani Akhori and others vs. M.A. Methusethupathi (Doctor and others) and it is reported in II (2022) CPJ 51 (SC). All these factors are clearly depicting that this complaint case is maintainable in its present form and in the eye of law. Thus, the points of consideration framed over the issue of maintainability and cause of action are also decided in favour of the complainant side.
The point of consideration no.5 is related with the question as to whether there any negligence or deficiency of service on the part of the O.ps or not? The point of consideration no.6 is related with the question as to whether the complainant is entitled to get the cost of medical treatment, compensation and litigation cost from the O.ps. or not? And the point of consideration no.7 is connected with the question whether the complainant is entitled to get any other relief from the O.ps or not?
In order to decide the fate of the above noted points of consideration, this District Commission after going through the evidence on record of both parties finds that the complainant has no grievance against proforma O.p. nos.4 & 5 and the complainant has no allegation against profroma O.p. nos.4 & 5 and for that reasons this case is liable to be dismissed against profoma O.p. nos.4 & 5.
Now the question is how far the O.p. no.1 is responsible for negligence and deficiency of service in the matter of providing medical treatment to the complainant? In this regard this District Commission on close scrutiny of the evidence on record finds that the complainant has not highlighted any allegations regarding the condition of the O.T. and relating to other conditions of O.T. of O.p. no.1/Hospital. On close scrutiny of the pleading adopted by the complainant and evidence given by the complainant side this District Commission finds that the only allegations which has been raised against the O.p. no.1 is that after the surgical operation of gallbladder stone of the complainant no doctor or nursing staffs attended the complainant and in spite of repeated request the O.p. no.1 has failed to taken step to provide relief to the complainant in the matter of stoppage of bleeding of the complainant. This matter has not at all been controverted and/or contradicted by the O.p. no.1 by way of adducing cogent evidence. When this case is running ex-parte against O.p. no.1, the evidence which is given by complainant against O.p. no.1 is found trustworthy and believable. There is no reason to raise any doubt or suspicion in respect of the evidence given by complainant against O.p. no.1. Thus, it is crystal clear that there is negligence and deficiency of service on the part of the O.p. no.1/Hospital.
Now the question is how far and/or to what extent the O.p. nos.2 & 3 are found negligent in the matter of providing medical treatment and taking care of the complainant. In this regard it is admitted fact that the complainant was medically treated by O.p. no.2 at O.p. no.1/Hospital as well as at O.p. no.3/Nursing Home and there is also not any controversy that complainant was admitted to O.p. no.3/Nursing Home for four hours under the treatment of O.p. no.2. In this connection this District Commission after making scrutiny of the evidence on record and also after scanning the documents of medical treatment of the complainant finds that the O.p. nos.2 & 3 failed to stop the bleeding of the complainant after the surgical operation of gallbladder stone of the complainant. This factor is clearly indicating that there was gross negligence and deficiency of service on the part of the O.p. nos.2 & 3 in the matter of providing post operative medical care and in follow up care. This factor is clearly reflecting that the O.p. nos.2 & 3 are found negligent in the matter of proper medical treatment to the complainant for which complainant was compelled to shift or transfer to O.p. no.4/Hospital where after prolong treatment the complainant’s health condition became stable. In this connection the O.p. nos.2 & 3 highlighted the issue that there is no medical evidence of expert. In this regard it is important to note that when the negligence or deficiency of service is clearly revealed from the paper of medical treatment of the patient there is no necessity of getting any expert opinion. Moreover, it is the settled principle of law that court is the expert of all experts. The O.p. nos.2 & 3 cannot deny this matter. When there is medical negligence on the part of O.p. nos.2 & 3 in respect of providing post operative medical care and in the matter of follow up care of the complainant, both the O.p. nos.2 & 3 are responsible for medical negligence and they are liable to pay compensation.
In this connection it is important to note that the complainant side has claimed compensation of Rs.15,09,900/- from O.p. nos.1 to 3 but fact remains that there is no basis in respect of the claim of compensation by the complainant. In this regard it is the settled principle of law in determining compensation in cases of medical negligence, a balance has to be struck between demand of person claiming compensation, as also the interest of those being made liable. This legal principle has been observed by Hon’ble Apex Court and it is reported in 2024(3)Indian Civil Cases 295 (SC) is very important. But fact remains that in this instant case the complainant had to pay Rs.3,00,000/- to the O.p./Hospital Authority for his medical treatment and so he is entitled to get the said cost of medical treatment from O.p. nos.1 to 3. In this regard it is also important to note that complainant has adopted the plea that he has lost his working ability but this factor has not been controverted by the O.p. nos.1 to 3 by way of producing any satisfactory evidence. Considering all the above noted factors this District Commission finds that the complainant side is entitled to get compensation of Rs.6,00,000/- including litigation cost from the O.p. nos.1 to 3.
A cumulative consideration of the above noted discussion goes to show that the complainant has proved his case in respect of all the points of consideration framed in this case against the O.p. nos.1 to 3 but in part.
In the result,
it is accordingly,
O R D E R E D
That this Complaint Case being No.363/2018 be and the same is allowed on contest but in part against O.p. nos.1 to 3 but this case is dismissed against O.p. nos.4 & 5.
It is held that the complainant is entitled to get cost of medical treatment of Rs.3,00,000/- and compensation including litigation cost of Rs.6,00,000/- from O.p. nos.1 to 3. The O.p. nos.1 to 3 are directed to pay the said amount of Rs.9,00,000/- to the complainant equally (Rs.3,00,000/- each) within 2 months from the date of this judgment. Otherwise complainant is given liberty to execute this award as per law.
The parties of this case are entitled to get a free copy of this judgment as early as possible.
Let this judgment/final order be uploaded in the official website of this District Commission immediately.
The word file is drafted and corrected by me.
(Debasish Bandyopadhyay)
President
D.C.D.R.C., Howrah
