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.
The Complaint case, in brief, is as follows :
One Bijoy Sarkar filed this case against OP No.1 MJN Hospital, Cooch Behar and two others for medical negligence and deficiency in service and after death of Bijoy Sarkar, (1) Smt. Arati Sarkar, W/O Late Bijoy Sarkar,(2) Pulak Sarkar, S/O Late Bijoy Sarkar and (3) Puja Sarkar D/O Lt. Bijoy Sarkar have been substituted in place Bijoy Sarkar vide order dated 08.02.16. The original Complainant Bijoy Sarkar alleged in the complaint petition that he came to the OP No.1 Hospital with a problem in his eye and the O.P. No.2, Dr. Sujit Kumar Sarkar examined his eye 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 a.m. 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 next day and his vision would be clear but on the next day, the patient did not see anything even after removal of his 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 but due to some emergency, the patient was bound to enter into Jalpaiguri Sadar Hospital where the Doctor took his admission and he was there till 30.07.14. The Doctor at Jalpaiguri District Hospital opined that the condition of the right eye of the patient was very serious though Dr. Sisir Mandal and Dr. Sushanta Roy (both Eye Specialists) treated the patient up to 30.07.14. Thereafter, the vision of the patient was improved a little bit and the patient returned home at Cooch Behar but on the same night, he was seriously ill and was feeling pain in his right eye. On 31.07.14 the patient came to MJN Hospital and met the OP No.2 who advised him to go to the chamber of Dr. D.B. Sarkar on 02.08.14 to meet one Dr. Somnath Chakraborty. On 02.08.14, the OP No.2 accompanied the patient to the chamber of Dr. D.B. Sarkar in his personal car and discussed with Dr. D.B. Sarkar when Dr. Chakraborty opined that there was some problems in the earlier operation and the subsequent operation was required to overcome the problem. He referred the patient to Siliguri Greater Lions Eye Hospital for treatment. On 03.08.14, the patient had undergone an operation at Siliguri Greater Lions Eye Hospital under Dr. Somnath Chakraborty but the condition did not improve. Subsequently, the patient visited several Eye Specialists in West Bengal and other parts of India and the Doctors told him that his first operation was defective and it was not possible to regain vision in his 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 lack of 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 his 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 his 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 No.1 and 3 viz. 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 patient Bijoy Sarkar appeared in the OPD of MJN Hospital on 23.07.14 and on examination, it was found that he was suffering from cataract in his right eye and it was explained to him that his 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, his 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 was 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 (OP thalmology) talked to the OP Nos.1 & 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. The patient got admitted at Jalpaiguri District Hospital under care of Dr. Sisir Mondal and a team of Opthalmologists headed by Dr. Goutam Bhaduri examined the patient on 27.07.14 and advised to treat conservatively as a case of Uvetis which is a part of Iridocyclist. So, there was no lack of care, diligence and proper service. On 30.07.14, the patient was discharged as his condition was improved and he was shifted to his home by Govt. vehicle along with prescribed medicines supplied free of cost. There was no evidence of attendance of the patient at MJN Hospital on 31.07.14, rather the Patient told the OP No.2 over phone in the morning that he had pain since last night and his blood sugar detected 380 at Jalpaiguri District Hospital. The OP No.2 advised him to come to MJN Hospital but of no result. The patient came at the private clinic of OP No.2 on 01.08.14 noon and reported that his blood sugar level was 280 mg/dl measured by one glucometer at his village. The matter was discussed with Dr. Bhaduri who talked to Dr. Somnath Chakraborty, Viteoretinal Surgeon of Siliguri Greater Lions Eye Hospital. The patient was also examined by Dr. Chakraborty on 02.08.14 at around 10 AM at Dr. D.B. Sarkar Eye Hospital Pvt. Ltd. free of cost. The patient was examined by Dr. Chakraborty in presence of the OP No.2 who diagnosed as post-operative Endophthalmitis. On the same day, the patient was shifted to Siliguri Greater Lions Eye Hospital by the Govt. sponsored vehicle. Dr. Chakraborty also opined that post-operative Endophthalmitis is one of the known complications of cataract surgery. It is not necessarily a infectious process. The acute form generally develops within 2-5 days of cataract surgery or within 6 weeks of surgery. Incidence of acute endophathalmitis following cataract surgery varies between 0.072% to 0.13% in several study published. In India, the present incidence is 1 in 200 to 1 in 1000. Prevention and elimination of post operative endophthalmitis is a consent goal of every Ophthalmic Surgeon. 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. After shifting the patient on 02.08.14 to Siliguri Greater Lions Eye Hospital for core PPV + Intravitreal Injections, the patient was under treatment of Dr. Somnath Chakraborty till 20.09.14. The patient attended the OPD of MJN Hospital on 10.09.14 and on examination, it was found that his right eye was quite, clear cornea, decent red IOL, clear view in aphakic zone. On 20.09.14 i.e. 2nd post-operative check up at Dr. B.B. Sarkar’s Eye Hosital by Dr. S. Chakraborty, the patient had uncontrolled blood sugar and slight corneal oedema was noticed. The patient was advised medicines and also to consult physician for control of diabetes. On 26.09.14, the OP No.2 and Dr. D.B. Sarkar re-examined the patient and found that the patient had uncontrolled diabetes, very little descemet fold in cornea, decentred IOL, Nasal RD, Silicon Oil in posterior cavity and IOP-8 mm of Hg. No infection was there and remarked as poor visual prognosis in right eye and for satisfaction of the patient, they recommended re-examination by vitreooretinal surgeon at Higher Institute like Disha Eye Hospital & Research Centre, Barrackpore or Regional Institute of Ophthalmology, Kolkata. 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 & 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/are the Complainant/complainants Consumer/consumers 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/Complainants is/are entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point Nos.1.
The Ld. Agent for the Complainants submits that one Bijoy Sarkar filed the complaint on 12.03.15 and subsequently, after his death, the present Complainants, being the legal heirs of the original Complainant, have been substituted. It is argued that the Complainants are legal heirs of the original consumer and accordingly, they are Complainants in terms of Section 2 (1)(b)(IV) of the CP Act, 1986. It is further urged that the Bijoy Sarkar was a consumer under the OPs.
In reply, the Ld. Agents for the OPs submitted that Bijoy Sarkar was not a consumer u/s 2 (1)( d)( II) of the CP Act, 1986 and the present petitioners cannot be termed as Complainants. It was urged that Bijoy Sarkar was admitted at the OP No.1 Hospital for his cataract operation in his right eye under the care of the OP No.2 Dr. Sujit Kumar Sarkar. It is contended that Bijoy Sarkar got the services of the OPs at OP No.1 Hospital free of charge and so, the services rendered to Bijoy Sarkar is not included in terms of ‘service’ 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 Bijoy Sarkar had not even alleged that service rendered to him was not free of charge. They submit that the complaint case is not maintainable as Bijoy Sarkar was not a consumer under the OPs.
Admittedly, one Bijoy Sarkar was admitted at the OP No.1 Hospital on 23.07.14 for his cataract operation in his 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 Bijoy Sarkar was free of charge or not or whether Bijoy Sarkar 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 original Complainant Bijoy Sarkar availed of the services of the OP Nos.1 to 3 free of charge and there is no whisper in the complaint that Bijoy Sarkar or the present Complainants paid any charge or agreed to pay any charges for receiving the service for Bijoy Sarkar from the OP Nos.1 to 3. Therefore, it can be safely said that the service rendered by the OP Nos. 1 to 3 to Bijoy Sarkar does not fall under the category of service as defined u/s 2(1)(o) of the CP Act, 1986. Therefore, we have no alternative but to hold that Bijoy Sarkar or the present Complainants is/are not consumer/s 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 Complainants submits that cause of action of this case 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 Complainants submit that Bijoy Sarkar, since deceased, got admitted at the OP No.1 Hospital on 23.07.14 and his cataract operation in his 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 his bandage. He argues that the OP No.1 immediately referred the patient to Siliguri Greater Lions Eye Hospital and on their way, the patient was bound to enter into Jalpaiguri Sadar Hospital on 26.07.14 and he was there till 30.07.14. It is argued that the patient returned home at Cooch Behar but on the same night, he became seriously ill and felt severe pain in his right eye and ultimately, came to the OP No.2 at the OP No.1 Hospital. He further argues that the OP No.2 in his personal car brought the patient from MJN Hospital to the chamber of Dr. D.B. Sarkar and discussed with Dr. Somnath Chakraborty, who opined that there were some problems in the earlier operation, and subsequent operation was required to overcome the problem. He contends that on 03.08.14, the patient had gone to Siliguri Greater Lions Eye Hospital and was admitted under Dr. Somnath Chakraborty and cataract operation was done on 04.08.14. It is submitted that Dr. Chakraborty opined that there was a defect caused due to first operation and subsequently, 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 Bijoy Sarkar 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 Complainants are entitled to get reliefs, as prayed for.
The Ld. Agent for the OP Nos.1 to 3 submits that the patient namely, Bijoy Sarkar was admitted at the OP No.1 Hospital on 23.07.14 and his cataract operation in his 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 OP No.2 observed Clouding Anterior Chamber with exudates but no chemosis oreye hid swelling of the operated right eye and the condition was discussed with Dr. D.B. Sarkar, Opthalmologist, who was previously attached with the MJN Hospital. 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 contends that OP No.1 talked with Addl. Director of Health Services (Opthalmology) over phone, who instructed the OP No.1 and 2 to shift the patient to the Jalplaiguri District Hospital instead of North Bengal Medical College & Hospital as a team of Opthalmologists would be available there. He submits that the patient got admitted at Jalplaiguri Sadar Hospital under the care of Dr. Sushanta Roy and Dr. Sisir Mandal and the team headed by Dr. Goutam Bhaduri examined the patient on 27.07.14 and advised to treat conservatively as a case of Uvetis which is a part of Iridocyclist. He further argued that there was no negligence on the part of the Ops and ultimately, the matter was discussed with Dr. Bhaduri who talked to Dr. Somnath Chakraborty, Vitreoretinal Surgeon of Siliguri Greater Lions Eye Hospital and the patient was shifted to Siliguri Greater Lions Eye Hospital by a Govt. sponsored vehicle and the total expenditure in respect of the treatment of the patient was borne by the Ops. 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 his part to treat the patient Bijoy Sarkar 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, Complainants are not entitled to get any relief in this case. It is argued that the OP No.1 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 Bijoy Sarkar 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 Complainant Case is not maintainable and the Complainants are not entitled to get any relief in this case.
The Point Nos.3 & 4 are thus decided against the Complainants.
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 O.Ps 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.
