Order No. 27 dt. 05/10/2018
The case of the complainant in brief is that the complainant was suffering from a check tumor on the left side of his face and for his better treatment he came to Kolkata for his complete cure of his sufferings. The complainant heard the name of o.p. no.1 reputed medical treatment centre in the city of Kolkata and he contacted from Bangladesh and arranged for an appointment with o.p. no.2 Dr. Debasish Banerjee. After examination the said doctor noticed check swelling at 3.5 cm diameter and he was advised to undergo CT Scan of head and neck along with FNAC test. The complainant underwent such treatment and the test was done at the left side of the face. He further underwent CT Scan examination on 9.6.14 and from the report it appeared that nodular lesion of size 25x23x27 mm and pre auricular region abutting masseter muscle. The complainant thereafter was advised by o.p. no.2 to undergo some tests to extort money from the complainant. After observing all the medical reports o.p. no.2 advised the complainant for operation of the gland and advised him to get admitted under the o.p. no. 1 hospital for carrying out the operation. The complainant thereafter got admission in the said hospital on 11.6.14 and he was discharged on 14.6.14 after observing that the operation was successful. On 2.6.14 in the histopathology report obtained from o.p. no.1 it was observed that single nodular piece of tissue measures 1.3 cm in length cut section grey while lobular area. Multiple sections taken and entire tissues embedded. The complainant followed the advice of o.p. no.2 and subsequently o.p. no.2 referred the complainant to another doctor Madhuchanda Kar for better treatment. The complainant for the purpose of treatment under o.p. no.2 had already spent Rs.50,000/-. Thereafter the complainant left India and went to his native place at Dhaka, Bangladesh and consulted Dr. Belayat Hossain Siddiqiee. The complainant thereafter went to Tata Medical Centre and admitted there on 13.8.14 and operation was performed on him on 14.8.14 and he was discharged on 19.8.14. During the treatment there it was written that the gland dissected off tragus and tragal pointer identified. Dissection done till trunk of the facial nerve was identified. Nerve retraction done with loop and deep lobe dissected and removed. The complainant incurred an expenditure of rs.75,000/- at Tata Medical Centre. It was further stated that o.p. no.2 is a general surgeon and not an oncologist and due to wrong treatment and operation done by o.p. no.2 at o.p. no.1 hospital the complainant has become permanently disabled and the complainant has suffered for which the complainant filed this case praying for direction upon the o.ps. for compensation of Rs.8 lakhs and litigation cost.
In spite of receipt of notice the o.p. no.1 did not contest this case by filing w/v and as such, the case has proceeded ex parte against them.
The o.p. no.2 contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that o.p. no.2 is an experienced doctor and he completed his MBBS in the year 1984 and had done MS from PGIMER, Chandigarh and has also obtained FRCS. The complainant is a foreign national and he consulted one Dr. J.C. Saha in Dhaka on 7.10.13 for presence of lump on the left check since 2 ½ months who also advised for FNAC test. Thereafter the complainant visited o.p. no.2 and after certain tests including histopathological examination of the tumor provisionally he was diagnosed for parotid tumor for which the complainant had to take admission at o.p. no.1 hospital. After the operation the complainant was asked to visit o.p. no.1 hospital for further medical management. The complainant visited the hospital on 25.6.14 and on perusal of HPE report asked the complainant to visit Dr. Madhchanda Kar, one of the leading oncologists in Kolkata for further treatment. Thereafter the complainant never consulted to o.p. no.2. The o.p. no.2 treated the said patient as accepted medical protocol. It was further stated that the complainant visited India with the marking of visa as ‘T’ i.e. for the purpose of travelling not for medical treatment and being a foreign national he has no right to file the case against the doctor without having the proper visa and the complainant being an illegal immigrant availed the medical service and he has no locus standi to seek any remedy in an Indian court of law. On the basis of the said fact it was stated that the complainant had no right to file the case against the doctor. It was further emphasized by o.p. no.2 that the operation performed was not for cure, but to obtain a biopsy in order to determine the type of tumor whether cancerous or not. As neither the CT Scan nor FNAC of the said patient was performed for cure, but for establishing diagnosis. Having regard to the facts and circumstances of the case o.p. no.2 stated that Dr. Madhuchanda Kar advised the complainant for further surgery not for the failure of the earlier surgery, but because the earlier surgery established the diagnosis of cancer. In view of the said fact o.p. no.2 prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant was treated by o.p. no.2?
- Whether there was any medical negligence on the part of o.p. no.2 for providing treatment to the complainant?
- Whether there was any deficiency in service on the part of o.ps.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant was suffering from a check tumor on the left side of his face and for his better treatment he came to Kolkata for his complete cure of his sufferings. The complainant heard the name of o.p. no.1 reputed medical treatment centre in the city of Kolkata and he contacted from Bangladesh and arranged for an appointment with o.p. no.2 Dr. Debasish Banerjee. After examination the said doctor noticed check swelling at 3.5 cm diameter and he was advised to undergo CT Scan of head and neck along with FNAC test. The complainant underwent such treatment on that date and the test was done at the left side of the face. He further underwent CT Scan examination on 9.6.14 and from the report it appeared that nodular lesion of size 25x23x27 mm and pre auricular region abutting masseter muscle. The complainant thereafter was advised by o.p. no.2 to undergo some tests to extort money from the complainant. After observing all the medical reports o.p. no.2 advised the complainant for operation of the gland and advised him to get admitted under the o.p. no. hospital for carrying out the operation. The complainant thereafter got admission in the said hospital on 11.6.14 and he was discharged on 14.6.14 after observing that the operation was successful. On 2.6.14 in the histopathology report obtained from o.p. no.1 it was observed that single nodular piece of tissue measures 1.3 cm in length. Cut section grey while lobular area. Multiple sections taken and entire tissues embedded. The complainant followed the advice of o.p. no.2 and subsequently o.p. no.2 referred the complainant to another doctor Madhuchanda Kar for better treatment. The complainant for the purpose of treatment under o.p. no.2 had already spent Rs.50,000/-. Thereafter the complainant left India and went to his native place at Dhaka, Bangladesh and consulted Dr. Belayat Hossain Siddiqiee. The complainant thereafter went to Tata Medical Centre and admitted there on 13.8.14 and operation was performed on him on 14.8.14 and he was discharged on 19.8.14. During the treatment there it was written that the gland dissected off tragus and tragal pointer identified. Dissection done till trunk of the facial nerve was identified. Nerve retraction done with loop and deep lobe dissected and removed. The complainant incurred an expenditure of rs.75,000/- at Tata Medical Centre. It was further stated that o.p. no.2 is a general surgeon and not an oncologist and due to wrong treatment and operation done by o.p. no.2 at o.p. no.1 hospital the complainant has become permanently disabled and the complainant has suffered for which the complainant filed this case praying for direction upon the o.ps. for compensation of Rs.8 lakhs and litigation cost.
Ld. lawyer for the o.p. no.2 argued that o.p. no.2 is an experienced doctor and he completed his MBBS in the year 1984 and had done MS from PGIMER, Chandigarh and has also obtained FRCS. The complainant is a foreign national and he consulted one Dr. J.C. Saha in Dhaka on 7.10.13 for presence of lump on the left check since 2 ½ months who also advised for FNAC test. Thereafter the complainant visited o.p. no.2 and after certain tests including histopathological examination of the tumor provisionally he was diagnosed for parotid tumor for which the complainant had to take admission at o.p. no.1 hospital. After the operation the complainant was asked to visit o.p. no.1 hospital for further medical management. The complainant visited the hospital on 25.6.14 and on perusal of HPE report asked the complainant to visit Dr. Madhchanda Kar, one of the leading oncologists in Kolkata for further treatment. Thereafter the complainant never consulted to o.p. no.2. The o.p. no.2 treated the said patient as accepted medical protocol. It was further stated that the complainant visited India with the marking of visa as ‘T’ i.e. for the purpose of travelling not for medical treatment and being a foreign national he has no right to file the case against the doctor without having the proper visa and the complainant being an illegal immigrant availed the medical service and he has no locus standi to seek any remedy in an Indian court of law. On the basis of the said fact it was stated that the complainant had no right to file the case against the doctor. It was further emphasized by o.p. no.2 that the operation performed was not for cure, but to obtain a biopsy in order to determine the type of tumor whether cancerous or not. As neither the CT Scan nor FNAC of the said patient was performed for cure, but for establishing diagnosis. Having regard to the facts and circumstances of the case o.p. no.2 stated that Dr. Madhuchanda Kar advised the complainant for further surgery not for the failure of the earlier surgery, but because the earlier surgery established the diagnosis of cancer. In view of the said fact o.p. no.2 prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant is a foreign national and he is a resident of Bangladesh. He visited India with the visa ‘T’ i.e. with travelling visa, but he availed the medical service in India without having any medical visa issued by Govt. of India. Ld. lawyer for the complainant has emphasized that o.p. no.2 had no medical capacity to render medical treatment to the complainant who was admittedly suffering from cancer. It is found from the materials on record that the complainant visited o.p. no.1 hospital and made contact with o.p. no.2, prior to that the complainant was examined by one Dr. J.C. Saha of Dhaka who advised the complainant for FNAC test (fine needle aspiration cytology, which is a diagnostic procedure used to investigate lumps or messes ivnder the skin) of the lump under and the said treatment was availed of by the complainant on 7.10.13. After the lapse of several months the complainant consulted o.p. no.2 on 9.6.14 and the complainant was provisionally diagnosed for parotid tumor and advised for parotidectomy for which the complainant required admission to o.p. no.1 hospital. Accordingly the complainant was admitted in the said hospital on 11.6.14 and he was discharged on 14.6.14 for excision of left side parotid tumor under GA. The specimen was further sent for histopathological examination and on perusal of the report it was found that mucoepidermoid carcinoma intermediate grade and the complainant was asked for visiting the OPD on 25.6.14 and the complainant was explained regarding his illness and asked the complainant for consultation of Dr. Madhuchanda Kar and after visiting the said doctor she opined for some operations, but in the mean time the complainant went to his native place and consulted Dr. Belayat Hossain Siddiqiee. The prescription of the said doctor has been annexed with the complaint petition wherefrom it is found that in case of further treatment and the removal of the cancerous growth as found in the said report the said doctor also opined that there may be some disfiguration of the face. Thereafter the complainant went to Tata Medical Centre and underwent treatment. It appears from the medical report submitted by the complainant that Tata Medical Centre rendered the medical treatment and in the history of the said treatment sheet it was specifically stated that the patient underwent excision of left parotid tumor under GA done on 12.6.14. Ld. lawyer for the o.p. no. 2 stated that for the purpose of diagnosis of biopsy in the affected part of the complainant he was admitted there, but from the medical papers it appears that underwent operation on 12.6.14 and on examination it was revealed that there was linear scar over left check that surrounding induration and after perusal of the medical papers provided by the complainant he was treated at Tata Medical Centre whereby the complainant underwent another operation. In the notes given by Tata Medical Centre it was categorically stated that dissection done trunk of facial nerve was identified. Trunk traced till division. Division traced and super facial part of gland dissected off the nerve. The said observation of Tata Medical Centre established the fact that the cancerous growth in the said affected part penetrated to a great extent and swelling on the affected part was noticed by the complainant for the last six years and when it became aggravated he consulted o.p. no.2 and he tried to ascertain the said affected part after doing operation on the affected part and whenever he came to the conclusion that the cancerous growth was noticed in the said affected he referred the complainant to Dr. Madhuchanda Kar. So far as the allegation made by the complainant is concerned that o.p. no.2 had no medical expertise to do such operation, but from the profile of the said doctor we find that he did his MS degree in surgery from PGIMER, Chandigarh and thereafter he went to London for doing FRCS. The o.p. no.2 has not claimed that he is an oncologist and after ascertaining the cancerous growth in the said tumor he referred the complainant / patient to a reputed oncologist. Subsequently it appears from the evidence on record that the complainant went to Tata Medical Centre and underwent operation. The cancerous growth on the said affected part had penetrated to such an extent for which extensive operation was done in Tata Medical Centre resulting in disfiguration of the face. On perusal of the medical papers of Tata Medical Centre submitted by the complainant it was never disclosed that due to wrong operation provided by o.p. no.2 the complainant had to suffer which caused any permanent loss on the left check for which the complainant has faced embarrassment. Being a foreign national and without obtaining permission from the High Commission of Bangladesh for redressal of the grievance he cannot seek any relief before this Forum. Having regard to the facts and circumstances of the case we hold that o.p. no.2 as per manual of surgery rendered initial treatment to the complainant as per the norms provided in the said manual of surgery. Accordingly, we hold that the case filed by the complainant has got no merit and the complainant will not be entitled to get any relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.247/2015 is dismissed ex parte against the o.p. no.1 and dismissed on contest against the o.p. no.2 without cost.
