Tripura

West Tripura

CC/14/58

Sri Naresh Chandra Datta. - Complainant(s)

Versus

ILS Hospitals and others. - Opp.Party(s)

Mr.R.Datta,Mr.R.Das

17 Feb 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

    CASE NO:  CC-  58 of 2014

        Naresh Chandra Datta,
         S/O- Monoranjan Datta,
         Bagafa, P.S. Santir Bazar,
         South Tripura.                    ........Complainant.
    
                 ______VERSUS______

1. ILS Hospitals,
Under the Supervision of G.P.T. Groups,
DD-6, Salt Lake City(Near City Centre),
Kolkata- 700064.

2. Dr. Om Tantia,
The Director of ILS Agartala Hospital,
Agartala, Capital Complex Area,
P.O. Kunjaban, P.S.- New Capital Complex,
West Tripura.

3. Dr. Aruna Tantia,
The Joint Director of ILS Agartala Hospital,
Agartala, Capital Complex Area,
New Captial Complex,
West Tripura.

    4. Dr. Nirmalya Bagchi,
Doctor at ILS Hospitals,
Agartala, Capital Complex Area,
New Capital Complex,
West Tripura.                 .........Opposite Parties. 
            
                    __________PRESENT__________

 SRI A. PAL,
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. Dr. G. DEBNATH
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHR. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

For the Complainant        : Sri Rupak Das,
                      Sri Ratan Datta,     
                       Advocates.

For the Opposite Parties        : Sri Sankar Bhattacharjee,
                      Sri Tanmoy Chakraborty, 
                      Advocates.

        JUDGMENT  DELIVERED  ON:  17.02.16

J U D G M E N T

         This case was filed by one Naresh Chandra Datta alleging about deficiency of service and unfair  trade practice by the ILS Hospital authority and its Dr. Nirmalya Bagchi. The case of the petitioner  in short is that the petitioner was suffering from severe pain in lower abdomen since 2013. Being attracted by the advertisement of the ILS Hospital the petitioner  with high expectation and hope went to that hospital and was checked by Dr. Nirmalya Bagchi, Laproscopic surgeon of that hospital. Some tests were done and medicines prescribed but the pain not subsided. So, again he went to the ILS hospital and his operation was advised. Accordingly operation was done by the laproscopic surgeon, Nirmalya Bagchi but it was not successful. And then advised him to meet Dr. N. Mondal, Urosurgeon. Ultimately the petitioner went to Apollo Hospital, Chennai. There he spent Rs.76,074/-+ Rs. 24,714/- for travelling he spent Rs.6000/- . The huge expenditure he had to bear for  negligence of the ILS hospital therefore he pray for giving direction to the O.P. to pay Rs.2,35,295/-.

2.        Opposite party ILS Hospital appeared, filed W.S. denying the claim. It is stated that the case is not maintainable in its present form. O.P. was not negligent. There was no deficiency of service at all. Petitioner was properly treated and operation was to some extent successful. Stone was dismantled. During the process some stone remained which might pass through urine as some broken piece remains and further surgical  intervention was necessary. Such happening is possible in laproscopic operation. There was no negligence at all.   
        
3.        On the basis of assertion denial made by the parties following points cropped up for determination?
        (I) Whether the petitioner suffered due to medical negligence of the O.Ps?
        (II) Whether the petitioner is entitled to get compensation as claimed because of the deficiency of service of the Opposite parties?
    
4.        Petitioner side produced original copies of the reports, discharge certificate, copies of prescription, copies of various bills, Original copies of flight booking which are exhibited and marked as Exhibit – 1, 2, 3, 4, 5 and 6. Petitioner side also examined one witness i.e., the petitioner himself, Naresh Chandra Datta and another Rajyeshwar Mahajan.

5.        Opposite party on the other hand produced the statement of affidavit of 2 witness one Dr. Nirmalya Bagchi and another Santosh Kumar Pandey, Senior Manager (Finance) of the ILS Hospital. 

6.        On the basis all these evidence we shall now determine the points.

    FDINGINS  AND  DECISION  &  REASONS FOR  DECESSION:-
7.        We have gone through the discharge summary report of the ILS Hospital. From the X-Ray report it was detected that smaller stone approximately 10 mm size calculus found in the ureteric wall. Dr. Nirmalya Bagchi issued the prescription on 11.07.13. Date of admission shown on 02.08.13, date of surgery on the same day and discharge also on the same day. Consultant was Nirmalya Bagchi. Patient admitted for cystoscopy for DJ stent removal. Surgeon was Dr. Nirmalya Bagchi. All these are admitted fact and supported by discharge summary of prescription and other reports. Cash memo, vouchers produced and there is no denial that in the ILS Hospital the petitioner spent Rs.78,504/-. Dr. Nirmalya Bagchi, surgeon in his evidence stated that the relatives of the patient requested to discharge him from the hospital for financial problem. Accordingly he was discharged on 28.06.13. complainant again came with abdomen pain. He then advised the complainant to undergo DJ stent removal of left urectric stone. Complainant and his relatives were explained about process. Accordingly stenting under spinal anesthesia was performed. The large stone was fragmented according to the procedure and removed. On 02.07.13 Petitioner was discharged with medical advice. On 11.07.13 he was advised to get himself admitted. Accordingly he was admitted but the doctor was on leave. So, he was immediately released. He also stated that the management decided to refer all uroglogical cases to concerned super specialist Dr. Mondal except emergency life saving procedure process. Accordingly he was referred to Dr. N. Mondal. From the evidence and its witness it is clear that the hospital authority decided to refer all the urological case to super specialist Dr. N. Mondal except emergency life saving procedure. This was introduced on 01.12.13.  The hospital authority did not take this decision before that date when the petitioner attended the hospital and was operated on 29.06.13. In the cross examination Dr. Nirmalya bagchi admitted that he was not Urologist. The stone size was  10mm. If it was 5 mm size then it was possible to pass out through urine provided that it is soft stone. He did not clarify whether it can be fragmented  for passing through urine. The D.W.2, Santosh Kr. Pandey  could not say of the availability  of Dr. Mondal in 1st December, 2013. Dr. Mondal was a urologist and have the speciality to attend the complainant suffering from urological problem. Subsequently the complainant was treated in the Apollo Hospital, Chennai and Dr. Arun Kr. Balkrishnan, Urologist operated it and removed the stone. The  bill of the Apollo Hospital produced to support it. Details process followed there not produced. Through the operation in the ILS Hospital admittedly the stone was not removed. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.  There is ample scope of genuine difference of opinion and doctor is not negligent merely because his conclusion differs from that of other professional man. Petitioner side referred the decision of National Forum published in 2014 STPL 4281. In that case it was observed that the smaller stone fragmented will pass out by urine which is not sometimes recognized by the patient. The large stone fragmented will descend to the ureter and will eventually pass out through urine. Opposite party referred the decision of National Forum published in 2015 STPL 731 NC . In that case National Forum viewed that just because a persons suffers bad out come from medical treatment does not mean that they have automatic right to sue for compensation. The decision of the National Commission in 1st Appeal No. 114  2009 is referred by the complainant side. There ILS Hospital authority  was the respondent. In that case ILS Hospital authority arranged the examination by ENT specialist and the petitioner had to go to Kolkata medical research institute. State Commission therefore held that appellants did not exercise the reasonable degree of care and caution in the treatment of the respondent which amounts to medical negligence and deficiency of service. So, in such a case reasonable care is to be taken to prove that they have no negligence. The professional may be held liable on two findings, either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable  competence in given case, the skill which he did posses. This view is laid down by the Supreme Court 2005 Vol. 6 SCC 1 Jaccob Mathew Vrs. State of Punjab. 
        
8.        It is settled law that in determining the deficiency in medical service if representation is made by doctor that he is specialist and ultimately turned that he is not, deficient in medical service will be presumed. The General surgeon  can not perform the cholecystectomy and the hospital authority ultimately had to advise the surgery through urologist Mr. Mondal. We are to decide the matter on surgical competency rather than surgical expertise. May be doctor Bagchi  had the surgical expertise but might not be competency like the urosurgeon. In this instant case ultimately  the patient was referred to urologist then he went to Chennai There  an urosurgeon performed the surgery and stone removed. There was some delay in performing the surgery but they did not cause much harm to the petitioner. In a case of medical negligence it is to be proved that by the act of the doctor or organization the patient suffered and due to their negligence the patient had to spent a lot. In this case the complainant was in need to operation by Urosurgeon. He had to operate and it was properly done at Chennai. For this operation and expenditure ILS Hospital authority had no role at all and also not responsible. So the treatment cost at Chennai should not be paid by the ILS unnecessarily who arranged the treatment in their hospital when urosurgeon was not available. The stone size was more than 10 mm large size could not be fragmented by doctor  through laproscopy, the process adopted but it was done through general surgeon doctor Bagchi through laproscopy. Finally hospital authority understood that mistake was done. So matter was referred to urosurgeon, Dr. Mondal. This process adopted by the hospital authority is medical negligence, improper, unfair trade practice and deficiency of service.  It was not a emergency case. It was not done for life saving. The ILS authority could inform its inability as Urosurgeon was not available but unnecessarily arranged laproscopic operation  & caused inconvenience pain to the petitioner. This is unfair trade practice by ILS Hospital authority. So, the expenditure in the ILS Hospital was unnecessary, not for proper treatment but for unfair trade practice. ILS Hospital authority therefore is to refund the amount that was taken from the petitioner. ILS also will have to pay 20,000/- to the petitioner for deficiency of service and compensation and Rs.5000/- for cost of litigation. Both the points are decided accordingly in favour of the petitioner. 

9.        In view of our above findings over the two points this case is disposed. As per our decision the ILS Hospital authority is directed to refund the expenditure amount in the ILS Hospital Rs.78,504/- to the petitioner Rs.20,000/- for medical negligence and deficiency of service, Rs.5,000/- for cost of litigation. The ILS Hospital authority is to pay total Rs. 1,03,504/-(One lakh Three Thousand Five Hundred Four) to the petitioner. The amount is to be paid with in 2(two) months. If not paid it will carry interest 9% per annum.
    
                Announced.

SRI A. PAL
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 
SMT. DR. G. DEBNATH,
MEMBER,
 DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.    SHRI. B. BHATTACHARYA,
MEMBER,
 DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.