Date of Filing: 12.03.2015 Date of Final Order: 06.12.2017
Sri Asish Kumar Senapati, President
This is an application u/s 12 of the C.P. Act, 1986.
One Gita Rani Paul @ Gita Paul, w/o Pranab Kr. Paul (hereinafter referred to as the Complainant) has filed this case against the MJN Hospital, Cooch Behar and two others( hereinafter referred to as the OPs) alleging medical negligence and deficiency in service. The Complainant alleged in the complaint petition that he came to the OP No.1 Hospital with a problem in his right eye and the OP No. 2 Dr. Sujit Kumar Sarkar examined and advised him for cataract operation. Accordingly, the OP No.2 fixed a date for cataract operation of the patient on 24.07.14 at 11 AM at MJN Hospital, Cooch Behar and operation was done by the OP No.2 on that day. The Op No.2 assured that the bandage of the right eye of the patient would be removed on the next day and her vision would be clear but on the next day, the patient did not see anything even after removal of her bandage on his right eye. Ultimately, the OP No.2 prescribed an ointment but the situation did not improve till 26.07.14 in spite of the fact that he was under treatment of the OP No.2 at the OP No.1 Hospital. On 26.07.14, the OP No.2 referred the patient to Siliguri Greater Lions Eye Hospital. That on receiving the referral card from MJN Hospital, the patient immediately proceeded towards Siliguri Greater Lions Eye Hospital. On 28.07.14, the patient had undergone an operation at Siliguri Greater Lions Eye Hospital under Dr. Somnath Chakraborty but the condition did not improve and the Doctor opined that it was due to defect in operation at the first time. Subsequently, the patient visited several Eye Specialists in West Bengal and other parts of India and the Doctors told her that her first operation was defective and it was not possible to regain vision in her right eye. The OPs are totally responsible for such deplorable condition of the patient. The OP No.1 was negligent in conducting the operation and there was deficiency in medical service and so the patient sustained heavy loss. The negligence and deficiency in medical service on the part of the OPs at the time of eye operation was reflected in the “Ananda Bazar Patrika” on 29.07.14 and in the “Bartaman” on 28.07.14. The patient lost her vision of right eye and was unable to do any sort of work. The OP No.2 did not take care at pre-operation and post-operation stage. The Complainant prayed for compensation of Rs.8 lakh for damage of her right eye, Rs.1,40,000/- for mental pain and agony, Rs.5,000/- for expenses of their journey and Rs.10,000/- for cost of litigation.
The OPs had contested this case by filing w/v. The OP Nos.1 and 3, namely, MJN Hospital, Cooch Behar and the Chief Medical Officer of Health, Cooch Behar filed written version on 27.07.15 inter-alia denying the material allegations made out in the complaint contending that the case is not maintainable and it is bad for defect of parties, The Complainant is not a consumer under the CP Act, 1986. The OP No.1 and 3 asserted that the Complainant appeared in the OPD of MJN Hospital on 23.07.14 and on examination, it was found that he was suffering from cataract in her right eye and it was explained to her that her vision might regain after cataract surgery, if no complication occurs. The Hospital has a secondary Eye Care Centre and small incision cataract surgery procedure was followed. The patient agreed to undergo cataract surgery and after taking precautionary measures, her cataract surgery was performed uneventfully on 24.07.14. Next day on 25.07.14, the patient did not turn up to the O.P. No.1. After removing bandage of the patient, the OP No.2 observed Clouding Anterior Chamber with exudates but no chemosis or eye hid swelling of the operated right eye. The OP No.2 also took opinion of Dr. D.B. Sarkar, who was previously attached with the Hospital. The patient was also examined by Dr. D.B. Sarkar in presence of Smt. Radha Rani Ghosh, Nursing Superintendent and Smt. Shyamali Guha, OT-Incharge and it was diagnosed as a suspected case of Iridocyclitis or developing Endophthalmitis. As per advice of Dr. D.B. Sarkar, intensive application of Eye Drops alongwith Antibiotic Injections were started and it was decided to observe that day if any improvement occurred. Thereafter, on the second post-operative day i.e. 26.07.14, OP No.2 observed that the condition of the right eye of the patient remained same and after discussion with Dr. D.B. Sarkar, the OP No.2 referred the patient to North Bengal Medical College & Hospital and a Govt. vehicle was arranged to shift the patient as a part of National Programme for Control of Blindness. After that, ADHS (Opthalmology) talked to the OP Nos.1 and 2 over phone and instructed them to shift the patient to Jalpaiguri District Hospital instead of North Bengal Medical College & Hospital as a team of Opthalmologists would be available there at that time. In spite of that the patient went to Siliguri Greater Lions Eye Hospital but Dr. Somnath Chakraborty never opined that there was some problem in the earlier operation. But he noted that the RE condition of the patient as post operative Endophthalmitis which is one of the known complications of cataract surgery. The Complainant had undergone Core Pars Plana Vitrectomy + intravitreal injection not cataract operation by Dr. S. Chakraborty at Siliguri Greater lions Eye Hospital on 28.07.14. On 30.07.14, the patient was discharged and the O.P. No.2 visited the the Complainant at her residence and she complained her blurred vision with mild pain which subsided after taking paracetamol - 650 mg . The OP No. 2 examined the patient on 31.07.14 and got information from her that Dr. Chakraborty told her that it would take time to improve her vision and talked to the Complainant over phone on 09.08.14 and 14.08.14 when the Complainant reported that she was feeling better. The MJN Hospital has a secondary Eye Care Centre and facilities to combat post operative complication like endophthnalmitis are not available there. For betterment, the patient was referred to next higher level centre i.e. North Bengal Medical College & Hospital. There is no lack of deficiency of medical service and negligence on the part of the OPs. The OP No.2 treated both at pre-operative and post-operative period recorded at OPD & Bed Head Ticket. The OP Nos.1 and 3 made all arrangements regarding supply of medicines and transport of the patient free of cost. There is no negligence on the part of the Ops. The OP No.1 and 3 prayed for dismissal of the complaint with cost.
The OP No.2 filed w/v on 27.07.15 and supported the version of OP Nos.1 and 3. He also prayed for dismissal of the complaint with cost.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any medical negligence/ deficiency in service, as alleged by the Complainant?
- Whether the Complainant is entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point Nos.1.
The Ld. Agent for the Complainant submits that the Complainant filed the complaint on 12.03.15 against the OPs. It is argued that the Complainant is a consumer under the OPs.
In reply, the Ld. Agents for the OPs submit that the Complainant is not a consumer u/s 2 (1)( d)( II) of the CP Act, 1986. . It is urged that the Complainant was admitted at OP No.1 Hospital for her cataract operation in her right eye under the care of the OP No.2 Dr. Sujit Kumar Sarkar. It is contended that the Complainant got the services of the OPs at OP No.1 Hospital free of charge and so, the services rendered to the Complainant are not included in terms of services as defined u/s 2 (1) (o) of the CP Act, 1986. They submit that service does not include the rendering of any service free of charge and the Complainant had not even alleged that service rendered to him was not free of charge. They submit that the complaint case is not maintainable as the Complainant is not a consumer under the OPs.
Admittedly, the Complainant was admitted at OP No.1 Hospital on 23.07.14 for his cataract operation in her right eye and the OP No. 2 performed cataract operation on 24.07.14. Now, the question is whether the service rendered by the OPs to the Complainant was free of charge or not or whether the Complainant falls under the category of a consumer u/s (1)(d )(II) of the CP Act, 1986. The Hon’ble Apex Court in its judgment passed in Indian Medical Association-vs- V.P. Shantha & Others in Civil Appeal No.688 of 1993 & Others reported in National Commission and SC on consumer cases at page 1569 (NS) was pleased to hold that the medical Practitioners, Govt. Hospitals/Nursing Homes and Private Hospitals/ Nursing Homes broadly fall in 3 categories :-
- Where services are rendered free of charge to everybody availing the said services;
- Where charges are required to be paid by everybody availing the services;
- Where charges are required to be paid by persons availing the services but certain categories of persons who cannot afford to pay are rendered service free of charges.
It has been held that Doctors and Hospitals who render services without any charge whatsoever to every person availing the services would not fall within the ambit of service u/s 2(1)(o) of the CP Act, 1986.
The Hon’ble Apex Court was pleased to hold that service rendered to a Patient by Medical Practitioner (except where the Doctor renders service free of charge to every patient or in a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of “service” as defined in Section 2(1)(o) of the Act.
In the present case, the Complainant availed of the services of the OP Nos.1 to 3 free of charge and there is no whisper in the complaint that the Complainant paid any charge or agreed to pay any charge for receiving the services from the OP Nos.1 to 3. Therefore, it can be safely said that the services rendered by the OP Nos. 1 to 3 do not fall under the category of service as defined u/s 2(1)(o) of the CP Act, 1986. Therefore, we have no alternative to hold that the Complainant is not a consumer of the OPs as defined u/s 2(1)(d)ii) of the CP Act, 1986. This point is thus disposed of in favour of the OPs.
Point No.2.
The Ld. Agent for the Complainant submits that cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of this Forum. In reply, the Ld. Agents for the OPs have stated nothing on this point.
Having heard the Ld. Agents of both sides and on perusal of the complaint petition and w/v, we are of the considered view that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint.
Point Nos.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant submits that the Complainant got admitted at the OP No.1 Hospital on 23.07.14 and her cataract operation in her right eye was performed by the OP No.2 on 24.07.14 at the OP No.1 Hospital but on the next day, the patient could not see anything after removal of her bandage. He argues that the patient got admitted at Siliguri Greater Lions Eye Hospital and had undergone an operation on 27.07.14 under Dr. Somnath Chakraborty but no improvement was seen and Dr. Chakraborty opined that it is a defect caused due to the first operation. He submits that the patient consulted a number of Eye Specialists in West Bengal and other parts of India and all the Doctors opined that there was defective operation done at MJN Hospital, Cooch Behar. He submits that the loss of eye sight of the Complainant was due to medical negligence on the part of the OPs as the Ops did not take proper care and caution during pre-operation and post-operation stage. He submits that Complainant is entitled to get reliefs, as prayed for.
The Ld. Agent for the OP Nos.1 to 3 submits that the Complainant was admitted at the OP No.1 Hospital on 23.07.14 and his cataract operation in her right eye was performed by the OP No.2 on 24.07.14 with possible precautions and after removal of the bandage on the next day, the Complainant complained that her vision had not regained. He further argues that the condition of the patient was observed but it was not improved for which the OP No.2 referred the patient to North Bengal Medical College & Hospital, Siliguri and the OP No.1 arranged Govt. vehicle to shift the patient and informed all concerned i.e. Director of Health Services, Addl. Director of Health Services (Opthalmology) and Chief Medical Officer of Health, Cooch Behar. He further argued that there was no negligence on the part of the Ops. He argues that on receipt of referral card the Complainant attended Dr. Somnath Chakraborty at Dr. D.B. Saakar Eye hospital Pvt. Ltd and subsequently went to Siliguri Greater lions Eye Hospital and had undergone operation on 27.07.14. It is contended that the O.P. No.2 visited the Complainant at her home on 31.07.14 and medicine was supplied to her free of cost. He further argues that Dr. Somnath Chakraborty never opined that there was any fault in earlier operation but he noted the right eye condition of the patient as Post-operative Endophthalimistis which is one of the known complications of cataract surgery. It is argued that there is no expert opinion to opine that there was any carelessness or medical negligence on the part of the OPs in treating the patient. He drew our attention to a number of decisions reported in III (2007) CPJ 146 (NC), 1(2009) CPJ 23 (NC), 1 (2009) CPJ 263 (NC) and IV (2008) CPJ 305. He has prayed for dismissal of the case with cost.
The Ld. Agent for the OP No.2 submits that there was no negligence on the part of the O.P.No.2 to treat the Complainant and he performed cataract operation in the right eye of the patient as per medically accepted norms and procedure. It is argued that the patient got the services of the OPs free of charge and so, the Complainant is not entitled to get any relief in this case. It is argued that the OP No.2 tried his level best to treat the patient with due care and caution. He has prayed for dismissal of the complaint case with cost.
We have already observed that the Complainant got the services of the OPs free of charge and the services rendered by the OPs are not within the purview of ‘’service’’ as defined u/s 2(1)(o) of the CP Act, 1986 and the Point No.1 has been decided against the Complainants.
In the circumstances, we are of the considered opinion that the Complaint Case is not maintainable and the Complainant is not entitled to get any relief in this case.
The Point Nos.3 & 4 are thus disposed of.
In the result, the complaint case fails.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby dismissed on contest against OPs without cost.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
