DATE OF FILING : 22.04.2015.
DATE OF S/R : 06.07.2015.
DATE OF ORDER : 11.04.2018.
Smt. Keya Mondal,
wife of Sri Jayanta Mondal,
resident of Manickpur, P.O. Delta Mill, P.S. Sankrail,
District Howrah. . ….………….………………………….……..…… COMPLAINANT.
1. Managing Director,
Indus Nursing Home Private Limited,
Andul Road, Podra, District Howrah,
PIN 711109.
2. Dr. R. N. Roy,
Medical Officer,
Indus Nursing Home Private Ltd.,
Andul Road, Podrah, District Howrah,
PIN 711109.
3. The Chief Medical Officer of Health,
Howrah, P.O. & District Howrah,
PIN 711101. ….…………………………………………OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri Abdul Kuddus.
Hon’ble Member : Shri Sajal Kanti Jana.
Hon’ble Member : Smt. Banani Mohanta ( Ganguli ).
F I N A L O R D E R
Facts of the case of the complainant, in short, is that the complainant admitted in o.p. no. 1 nursing home on 29.7.2014 for treatment of her Hernia as per advice of o.p. no. 2 Dr. R.N. Roy, Medical Officer. Her Hermonaply operation was done on 29.7.2014 by o.p. no. 2, doctor, at the o.p. no. 1 nursing home and she was discharged from the said nursing home on 01.8.2014.
This complainant had to pay Rs. 26,000/- for her operation charges and Rs. 40,000/- was paid for medicine in total Rs. 66,000/- was expended.
The complainant had to expend to the tune of Rs. 1,50.000/- for her operation and other medicine charges etc. during the period 29.07.2014 to 01.08.2014 for her treatment.
Complainant was not recovered and she was suffering from pain. Thereafter this complainant went to Dr. R.N. Roy, o.p. no. 2, and narrated the same to their then o.p. no. 2 admitted that the operation done was not successful due to some negligence on his part and on the part o.p. no. 1 and he advised complainant for further operation for her ventral hernia.
After some time this complainant was suffering from acute pain again then she had to go to Dr. M.L. Saha of Medicine Research and Diagnostic Pvt. Ltd., for her treatment. Dr. M.L. Saha advised her for operation for her ventral hernia and this complainant had to expend Rs. 1 lakh for her second time operation.
So this complainant has filed this case and prayed for passing award of Rs. 4 lakhs as compensation against o.p. nos. 1 & 2 and also made further prayer to direct o.p. no. 3 to take action against o.p. nos. 1 & 2 for their wrongful acts.
This case is being contested by o.p. nos. 1 and 2 by filing separate written versions denying all allegations as made in the petition of complaint contending interalia that the case is not maintainable, there is no deficiency in service ; case is barred by limitation. The specific case of the o.p. no. 1, nursing home, is that the complainant paid Rs. 11,658/- out of Rs. 15,676/- to o.p. no. 1, nursing home. Moreover, complainant has not made any allegation about deficiency in service against o.p. no. 1. So according to o.p. no. 1 this complaint is liable to be dismissed.
This case is also being contested by o.p. no. 2 by written version denying all allegations as made in the petition of complaint contending interalia that the case is not maintainable ; no cause of action ; case is bad for non joinder of parties and the case is barred by limitation. The specific case of the o.p. no. 1 is that complainant was operated by o.p. no. 2 on 27.7.2014 in o.p. no. 1 nursing home and she was discharged on 01.08.2014. It is further case of the o.p. no. 1 is that the complainant was regularly examined during her post operative period and the condition of the wound was very healthy during that time and she was discharged from o.p. no. 1, nursing home. Thereafter complainant made complaint of pain due to her large incisional hernia already existed from the pre operative period and the complaint of pain was strictly subject to the relieved after another operation of the pre existing second hernia. So according to o.p. no. 2 there was no negligence or improper treatment on the part of the o.p. no. 2. So this case is liable to be dismissed.
POINTS FOR DETERMENATION :
- Is the case maintainable?
- Whether there is any cause of action?
- Whether there was any negligence on the part of the o.ps. in the matter of treatment / operation of the complainant as alleged ?
- Whether there is any deficiency in service?
- Whether the complaint is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
In this case ld. advocate for the complainant argued interalia that by reiterating the fact as stated in the petition of complaint. It is also submitted by ld. advocate for complainant that the hernia of the complainant was operated by Dr. R.N. Roy / o.p. no. 2 in o.p. no. 1 nursing home which ws not successful as such complainant suffered pain after the operation then he again met to the o.p. no. 2 / doctor and he admitted that the operation was not successful. So complainant was advised for second time operation of hernia. So according to him there was a negligence on the part of o.p. no. 2 Doctor.
Ld. advocate for the complainant also further submits during hearing of argument that he has no allegation /claim against o.p. no. 1, nursing home. On the other hand ld. advocate for the o.p. no. 1 submits interalia that the case is barred by limitation, the amount of Rs. 1,50,000/- as alleged was not paid to the o.p. no. 1 nursing home. Case is defect of non joinder of parties as Dr. M.L. Saha has not been made parties in this case. So he prays for dismissal of this case. On the other hand ld. advocate for the o.p. no. 2 also argued interalia that when the complainant came to the o.p. no. 2 with complaint of pain then this o.p. no. 1 advised her for operation. But she did not pay any heeds. He has also submitted that no expert has been examined to prove the negligence of o.p. no. 2 in the matter of operation of hernia of complainant. Dr. M.L. Saha has not been examined. He has alsonot been made parties in this complaint case. So according to him the case is bad for defect of parties and the case is liable to be dismissed. In support of his contention ld. advocate for the o.p. no. 2 referred (2005) 7 SCC page 22and ( 2001) 8 SCC page 731.
We have carefully heard the submission made by the ld. advocate for both sides. Perused the petition of complaint, written versions, documents filed and the other materials available in the case record. It is admitted by both the o.ps.that hernia operation of complainant was done by o.p. no. 2 doctor in the o.p. no. 1 nursing home and she was admitted there for the period from 29.7.2014 ;to 01.8.2014. The allegation is that the operation done by o.p. no. 2 was not successfuland as such this complainant suffered pain after the operation. So she met to o.p. no. 2 doctor who advised her to operate for the second time. On the other hand the case of the o.p. no. 1 that complainant suffered pain due to another largeincisional hernia already existed from the pre operative period and the complaint of pain was to be relieved after another operation of the existing second hernia operation. So the case of the o.p. no. 2 is that there was another incisional hernia existed in the body of the complainant from the preoperative period. So she was advised to operate the same. So we find that the complainant claimed that her hernia operation was done negligently, on the other hand o.p. no. 2 Doctor claimed that complainant was suffering from another hernia and she was advised for operation of the said hernia.
It has been observed by the Hon’ble National Commission reported in 2015(4) CPR page 25 ( NC ) interalia that allegation of medical negligence must be proved by expert opinion. So we find that that burden of proof lies upon the complainant to prove negligence of o.p. no. 2 by producing expert opinion.
In this case complainant was operated for the second time by Dr. M.L. Saha. Dr. M.L. Saha has not been examined in this case to prove that he had to operate hernia as alleged by the complainant for the second time though the same was operated by the o.p. no. 2 on 29.7.2014. No reasons has been given for non examination of Dr. M.L. Saha whose evidence is very materials in this regard.
It hasbeen observed by the Hon’ble National Commission reportedin 2016(2) CPR page 2 ( NC ) that “complainant must provide materials to prove allegation of medical negligence.”
In this case this complainant neither submitted any expert opinion nor examined Dr. M.L. Saha who did operation of the complainant for the second time. So we find that complainant could not be able to prove that Dr. M.L. Saha operated her hernia for the second time which was operated by o.p. no. 2 on 29.7.2014 i.e.. for the first time. No medical certificate has been submitted issued by an expert or any doctor that there was negligence on the part of the o.p. no. 2 in operating hernia of complainant on 29.7.2014. .
It has been observed by the Hon’ble NationalCommission reported in 2016(2) CPR page 2010 (NC) interalia that “doctor will be only liable when he falls below standard of a reasonably competent practitioner in this field and his conduct might be deferred.” It has also been observed by the Hon’ble National Commission 2016( 2 ) CPR 100 (NC) that medical negligence cannot be inferred by going against report of independent expert doctors.
In the present case there is no allegation that this o.p. no. 2 doctor does not possess any degree of surgery. So complainant could not be able to prove that the conduct and skill of o.p. no. 2 was fallen below the level of standard of a reasonably competent practitioner in his field. Moreover, negligence of o.p. no. 2 / doctor to treat complainant cannot be inferred merely on the basis of statement made in petition of consumer complaint. So report of expert doctor is very vital and material evidence to prove negligence of o.p. no. 2. But no such report of expert doctor has been admitted into evidence to prove the negligence of doctor / o.p. no. 2.
It is alleged in the petition of complaint that when complainant went to the o.p. no. 2 doctor when she suffered pain after her operation. Then o.p. no. 2 admitted that her operation was not successful.
If for the sake of argument the operation of the complainant was not successful then it can be termed as negligence on the part of o.p. no. 2 doctor.
It has been observed by the Hon’ble NationalCommission reported in 2014 (4) CPR page 190 (NC) interalia that “unsuccessful treatment does not implied medical negligence.”
In the present case if it is taken into mind that the operation of complainant was not successful despite that it cannot be termed as medical negligence on the part of o.p. no. 2 for want of expert doctor report / opinion. It has also been observed by Hon’ble National Commission that “Every medical fatality does not indicate negligence on the part of treating doctor.”
In view of above facts and circumstances and discussion made above we hold that complainant has not been able to prove that there was negligence on the part of the o.p. no. 2, Doctor, in treating as well as doing operation of the complainant as alleged in this petition of complaint.
After going through the petition of complaint and materials on record we find that Dr. M.L. Saha who treated this complainant for the second time is not necessary party in this case so case is not bad for defect of parties and the case is not barred by limitation as same has been filed within two years from the date of cause of action.
We also find that ld. advocate for the complainant submitted during argument that he has no claim against o.p. no. 1, sothis complaint is also liable to be dismissed against o.p. no. 1.
We also find that o.p. no. 3 is a Chief Medical Officer of Health, Howrah, it has no role in treating the complainant as alleged in this case. So complainant is not the consumer of o.p. no. 3 and no cause of action against o.p. no. 3. So this complaint also liable to be dismissed against o.p. no. 3.
In view of above facts and circumstances and discussion made above we hold that complainant has not been able to prove her case. So this complaint is liable to be dismissed.
In the result, the complaint case fails.
Hence,
O R D E R E D
That the C. C. Case No. 156 of 2015 ( HDF 156 of 2015 ) be and the same is hereby dismissed on contest without cost against the o.p. nos. 1 & 2 and ex parte against o.p. no. 3.
Let plain copies of the order / judgment be supplied to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( Abdul Kuddus )
President, C.D.R.F., Howrah.
