Ld. Advocate(s)
For complainant .. Sudipta Biswas
For OP1 & OP 2 .. Subhasis Roy
Date of Filing : 22.11.2016
Date of Disposal : 30.11.2018
: JUDGMENT & ORDER dtd. 30.11.2018 :
The case of the complainant, in brief, is that the complainant on 04.01.2016 at about 2/2.30 p.m. was waiting for a bus beside Galaidari More Bus Stop. At that time, one TATA 107, unknown number vehicle with excessive speed dashed the complainant and as a result, he sustained serious injury on his left leg. Thereafter, he was treated at Saktinagar Dist. Hospital on that date and on 05.01.2016 the doctor of Saktinagar Hospital referred him to N.R.S. Hospital, Kolkata, but he was admitted at Kaya Kalpa Sadan Nurshing Home on 05.01.2016 and was under treatment of OP No. 2, Dr. Diganta Mondal where he analyzed injury report and held operation over his left leg and he was discharged from the said Nursing Home on 14.01.2016. He paid Rs.16,000/- for the expenditure of the said Nursing Home and also paid Rs. 7,000/- as doctor’s fee but the OP did not issue any bill/voucher for the said expenditure. Due to serious pain on his left leg even after the operation he was under regular treatment of Dr. Diganta Mondal. Ultimately, Dr. Diganta Mondal referred him to R.G. Kar Medical College & Hospital. He visited R.G.Kar Medical College & Hospital on 09.06.2016, 13.06.2016, 25.07.2016 & 01.08.2016. He was treated as O.P.D. patient during his treatment. The doctor of the said Hospital and other doctors repeatedly said that he was wrongly treated by Dr. Diganta Mondal. Thereafter, on 27.10.2016 he was treated by Dr. Sajid Memon at Krishnagar who also stated that the complainant’s left leg is infected due to wrong treatment. Due to such arbitrary act of the OPs the complainant has filed the instant case praying for Rs.5,00,000/- for his wrong treatment and Rs.10,00,000/- for compensation and other reliefs.
On the other hand, the OP No. 1 & OP No. 2 jointly contested the case by filing a written version wherein they have denied the entire allegations brought by the complainant.
Their specific contention is that the complainant did not pay any amount either as doctor’s fee or charges of Nursing Home as because he availed the benefit of R.S.B.Y card though it is fact that said amount was not also disbursed from the Insurance Company. It is further submitted by the OPs that after operation the OP No.1 gave following treatment from time to time and it was detected by the OP No. 2 that the complainant had some problems so he was immediately referred to Dr. S.K. Hazra for his operation but the complainant ignored the advice of OP No. 2 and not only that when the complainant was asked for second operation by this OP No. 2, the complainant did not bother good advice of OP No. 2. So they have no negligence on their part and the case may be dismissed.
The complainant has filed some documents which are marked as Annexure – 1 to Annexure – 10.
He has also filed an examination-in-chief which is same as stated in the petition of complaint.
The complainant also adduced evidence of PW 1, 2, 3 & 4.
Both parties have filed interrogatories and replies thereto, brief notes of arguments, and case laws in support of their respective case.
Points for discussion
- Whether the complainant is a consumer under the CP Act, 1986?
- Whether there was any medical negligence on the part of the OP No. 1 as well as OP No.2.?
- Whether the complainant is entitled to get any relief /reliefs as prayed for?
Decision with reasons
Point No. 1.
The OPs specifically admitted that the entire medical expenditure was borne by the insurance company. Therefore, it can be safely said that there is a relationship of consumer and service provider between the complainant and the OP No. 1 & 2. So, the complainant is a consumer within the purview of Consumer Protection Act, 1986.
This point goes in favour of the complainant.
Point No. 2.
We have meticulously gone through the evidence of PW -1, Dr. Sajid Memon, PW – 2, the complainant himself, PW-3, Dr. Anandakishor Paul and PW 4, Amit Roy, interrogatories and replies filed by both parties and documents filed by the complainant.
Now, the question comes whether there was any medical negligence on the part of the treating Dr. Diganta Mondal ( OP 2)?
Complainant met with a traffic accident on 04.01.2016 and sustained injury in his left leg. On the same date, he was admitted to Shaktinagar District Hospital wherein he was advised to admit at N.R.S. Hospital in Kolkata but instead of going to N.R.S. Hospital he went to Kaya Kalpa Sadan Nursing Home on 05.01.2017 where Dr. Diganta Mondal i.e. OP No. 2 analyzed injury report and held operation over his left leg. During the cross-examination of PW 1 on dock by the Ld. Advocate for the OPs admitted that nailing is necessary in case of fracture of subtrochanteric femur operation and advised the patient for reoperation. DCS is a kind of plating. There are different modes of treatment like plating and nailing. The complainant visited his chamber only once i.e. on 27.10.2016. Thereafter, the complainant did not visit his chamber. It was submitted by the OP No. 2, Dr. Diganta Mondal that nailing method was applied by him.
Complainant’s allegation is that Dr. Diganta Mondal neglected his duty of medical service, is dependent only on the fact that other doctors such as Sajid Memon and doctors of R.G. Kar Hospital verbally told the complainant that first operation by Dr. Diganta Mondal was not successful. This said version of the complainant is not supported by any documentary evidence and it is well known fact that a treating doctor cannot be called as an expert doctor. Independent doctor ought to have been consulted for an expert opinion and thus it is a great lacuna on the part of the complainant. No document has been filed from the side of the complainant to prove medical negligence on the part of the Dr. Diganta Mondal.
The Hon'ble State Commission, New Delhi in the case of Inderjeet Singh Vs. Dr. P.K. Bhatia & Anr. that simply because subsequent operation was required does not prove negligence in treatment by the doctor.
Ld. Lawyer for the OP submitted a ruling reported in 2016(4) CPR 569 (NC) in the case of Garlapati Kameshwara Rao and Anr. Versus Kinnera Super Specialty Hospital wherein the Hon'ble National Commission has held that “Medical Negligence—Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, doctor cannot be held straightway liable for medical negligence—Sometimes despite their best efforts treatment of a doctor fails—That does not mean that doctor or surgeon must be held to be guilty of medical negligence unless there is some strong evidence....” But in this case there is no strong evidence from the side of the complainant to prove medical negligence on the part of both the OPs.
Ld. Advocate for the complainant placed a citation reported in 2013 14 JT 47; 2013 7 MLJ (SC) 781; 2014 1 RLW (SC) 54; 2014 1 SCC 384; 2013 7 Supreme 323; 2013 0 Supreme (SC) 986 in the case of Dr. Balram Prasad – Appellant Versus Dr. Kunal Saha & Ors. – Respondents in support of his vicarious liability of Nursing Home i.e., Kaya Kalpa Sadan Nursing Home Authority but no documentary evidence has come from the side of the complainant in support of vicarious liability of Nursing Home. So plea of vicarious liability cannot be brought against the Nursing Home.
Now, we are of the opinion that both the OPs are acquitted of all charges.
Therefore, on the basis of discussion discussed above, we have come to the conclusion that medical negligence has not been proved by the complainant beyond all reasonable shadow of doubts against the OPs.
Accordingly, this point is decided against the complainant.
Point No. 3.
On the basis of discussion as a whole, we are of the view that the complainant is not entitled to get any relief as prayed for. This point is also decided against the complainant. In the net result, the case fails.
Hence, it is
O R D E R E D,
That the instant case be and the same is dismissed on contest without any cost.
Let a plain copy of this judgment & order be furnished to the parties forthwith free of cost.