Today is fixed for hearing argument.

Heard argument in full.

Judgment would be delivered in course of this day.

This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging medical negligence and deficiency in service against the OPs.

The brief fact of the case of the Complainant is that the younger son of the Complainant namely Master Avinav Chaudhury, being a mere child of nearly 5 years old was running mild temperature from 13.07.2019 to 14.07.2019 and on 15.07.2019 he further complained of abdominal pain with discomfort and uneasiness in his body, which the child could not explain otherwise. Finding him seek and indisposed the Complainant on the advice of Dr. Snigdha Banerjee took the child to nearby diagnostic center of the OP-1 on 15.07.2019 at about 9 a.m. for necessary examination of his blood especially the platelet count as prescribed by the doctor. Accordingly, necessary specimen of blood was taken from the child at about 9.15 a.m. The Complainant was told to turn up in the evening to collect the blood report. The Complainant went in the evening and he was provided with the blood report of the child duly signed by the OP-2 and he noticed that the platelet count was mentioned in the report as 0.70 Lakhs, which is far below than the normal level. Due to drastic fall in platelet count, the Complainant apprehended something fatal to have taken place and anxiously contacted to Dr. Snighdha Banerjee, who advised the Complainant to get his child admitted to a Nursing Home for necessary treatment at once. Being worried and perplexed the Complainant went to the Divine Nursing Home Private Limited for admission of the child where after going through the aforesaid blood report of the OPs, the medical officer of the said Nursing Home on duty prescribed for admission of the child at the Pediatric Ward under the care of Dr. Sunil Kumar Jana on 15.07.2019 at about 9.23 p.m. In the course of his treatment the child was subjected to a blood test for the second time especially with regard to platelet count at the laboratory of the said Nursing Home. On the night of 15.07.2019 blood specimen was drawn and simultaneously he was also administered some medicines for necessary relief. On the next morning i.e. 16.07.2019 when the Complainant visited the Nursing Home he got the new blood report of the child, wherein the platelet count was shown to be quite normal being 3.0 Lakhs, which was widely at variance with the first report being 0.70 Lakhs only issued by the OP-1. The specimen of blood was collected for examination by the OPs on 9.15 a.m. on 15.07.2019 and at about 1.26 a.m. on 16.07.2019 the Nursing Home had collected the blood specimen from the child and in between the two collections there was a gap of only 16 Hours, but the platelet count went up from 0.70 Lakhs to 3.0 Lakhs. Such report is clearly proved that the report of the OPs were perfunctory, incorrect and erroneous from the very inception and the specimen of blood drawn was examined in a most negligent and careless manner, knowing it fully well that such lapses could expose the patient to danger. Fortunately during his stay in the said Nursing Home the child was diagnosed with fever where as the diagnosis would have been different, if the treating doctors will rely on the report of the OPs and based on that report, if the treatment provides, then entire treatment will be incorrect, false and erroneous. Since the condition of the child improved considerably in the morning, the Complainant got him discharge on signing a customary bond making full payment of the Nursing Home Bill for Rs.25,036/- after due adjustment of the advance paid earlier. According to the Complainant the service of the OPs has been suffering from deficiency in service as well as medical negligence and as the OPs have failed to redress his grievance by making refund of the paid amount as paid by the Complainant to the Nursing Home on account of treatment of his child before filing of this complaint, hence finding no other alternative the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to pay him Rs.25,036/- as incurred by him towards the medical treatment of his son, cost of the medicine, pathological charges etc., to pay compensation to the tune of Rs.2,00,000/- due to mental agony and harassment and litigation cost of Rs.10,000/- to him.

The petition of complaint have been contested by the OPs by filing conjoint written version contending that  there may be variation in platelet count and may drop. It is pertinent to mention that platelets are produced and so there is variation in the platelet count. There is no evidence on record that the Medical Officer on duty of the Divine Nursing Home had his doubt to the accuracy of the report as alleged. The child of the Complainant was admitted in the Divine Nursing Home as he was sick. Treatment was done and medicines were given in the said Nursing Home as admitted by the Complainant. The blood for test was drawn at the said Nursing Home after gap of 16 hours at about 1.26 a.m. on 16.07.2019. The platelet count cannot be the same on everyday as wrongly averred by the Complainant and he is totally under misconception regarding production of platelet in human body. It cannot be said that the platelet count being 3.0 lakh is correct as alleged. The said level may be doubtful as the presumption of the Complainant is that the said count is quite normal in rang and the report of the Nursing Home cannot be wrong. The Complainant has filed this complaint on presumption-assumption and surmise and conjecture, which does not stand at all. Until and unless the count is less that 10,000-20,000 per micro liter, there will be no risk, so 70,000 platelet count is not life threatening. The blood report of these OPs is correct and not perfunctory, erroneous and incorrect as alleged. The Complainant has failed to prove negligence on the part of these OPs as he has made mere allegation without any basis. There was no risk involved as per the platelet count. The treatment of the patient was started much earlier the blood was drawn about 1.26 a.m. on 16.07.2019 at the Divine Nursing Home. Initially the child was taken to Dr. Snigdha Banerjee for treatment, who prescribed for several blood tests. It has been admitted by the Complainant that the condition of the child improved considerably after getting treatment in the Divine Nursing Home and it is false that the child was admitted for the faulty blood report issued by these OPs. It is evident from the emergency sheet of the Divine Nursing Home that the child was suffering from Dehydration and Conjunctival congestion when he got admission at the said Nursing Home and it is incorrect and baseless that the child was admitted at the Nursing Home due to the blood report of the OPs. Therefore the Complainant is not entitled to get any relief through this petition of complaint. According to the OPs the complaint is liable to be dismissed with exemplary cost.

Both parties have adduced evidence on affidavit and they were cross-examined with each other by way of filing questionnaire and replies. The OPs have also filed BNA.

We have carefully perused the entire record and documents as available and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that the younger son of the Complainant namely Master Avinav Chaudhury, being a mere child of nearly 5 years old was running mild temperature from 13.07.2019 to 14.07.2019 and on 15.07.2019 he further complained of abdominal pain with discomfort and uneasiness in his body, which the child could not explain otherwise. Finding him seek and indisposed the Complainant on the advice of Dr. Snigdha Banerjee took the child to nearby diagnostic center of the OP-1 on 15.07.2019 at about 9 a.m. for necessary examination of his blood especially the platelet count as prescribed by the doctor. In this regard we are to say that the prescription of Dr. Snigdha Banerjee is not before us as the Complainant did not bother to annex the same. Therefore we are in dark regarding the ailment and complication of the child when he was taken to Dr. Snigdha Banerjee and as the said prescription is not forthcoming we cannot pass our opinion regarding the diagnosis of the Dr. Banerjee. Whether the said Doctor prescribed for platelet count especially for the child or not, the picture is not clear to us. In this respect we are of the opinion that it was the duty of the Complainant to make Dr. Banerjee as a necessary party in this proceeding, which the Complainant has miserably failed.

  Accordingly, necessary specimen of blood was taken from the child at about 9.15 a.m. and in the evening he was provided the blood report of the child duly signed by the OP-2 and the Complainant noticed that the platelet count was mentioned in the report as 0.70 Lakhs, which is far below than the normal level. Due to drastic fall in platelet count, the Complainant apprehended something fatal to have taken place and anxiously contacted to Dr. Snighdha Banerjee, who advised the Complainant to get his child admitted to a Nursing Home for necessary treatment at once. In this respect we are of the view as the prescription of Dr. Snigdha Banerjee is not available in the record due to non-filing of the same by the Complainant at the time of initiation of this complaint, we did not get any scope to peruse the same  and whether the platelet count was drastically dropped or not and due to such fall Dr. Snigdha Banejee advised the patient for immediate admission to the nearby Nursing Home or not, we are not in a position to make any comment due to absence of the said important document, which the Complainant has neglected to annex, but averment is made. Therefore in our considered view the Complainant has failed to corroborate the allegation by adducing cogent and convincing evidence in support of his contention.

   Being worried and perplexed the Complainant went to the Divine Nursing Home Private Limited for admission of the child where after going through the aforesaid blood report of the OPs, the medical officer of the said Nursing Home on duty prescribed for admission of the child at the Pediatric Ward under the care of Dr. Sunil Kumar Jana on 15.07.2019 at about 9.23 p.m.  From the Emergency Sheet of the patient issued by the Divine Nursing Home dated 15.07.2019 it is not evident that after going through the blood report of the OPs, the medical officer of the said Nursing Home on duty prescribed for admission of the child at the concerned ward. Moreover within the four corners of the said Emergency Sheet there is not at all any whisper about the platelet count of the child performed by the OPs. In respect of the chief complaints it is mentioned therein that the child had been suffering from Fever, Mild Dehydration, Pain in Abdomen and Conjunctival Congestion + for three days. Due to such complaints the child was prescribed for admission at the said Nursing Home. In the course of his treatment the child was subjected to a blood test for the second time especially with regard to platelet count at the laboratory of the said Nursing Home. On the night of 15.07.2019 blood specimen was drawn and simultaneously he was also administered some medicines for necessary relief. On the next morning i.e. 16.07.2019 when the Complainant visited the Nursing Home he got the new blood report of the child, wherein the platelet count was shown to be quite normal being 3.0 Lakhs, which was widely at variance with the first report being 0.70 Lakhs only issued by the OP-1. The specimen of blood was collected for examination by the OPs on 9.15 a.m. on 15.07.2019 and at about 1.26 a.m. on 16.07.2019 the Nursing Home had collected the blood specimen from the child and in between the two collections there was a gap of only 16 Hours, but the platelet count went up from 0.70 Lakhs to 3.0 Lakhs. Such report is clearly proved that the report of the OPs were perfunctory, incorrect and erroneous from the very inception and the specimen of blood drawn was examined in a most negligent and careless manner, knowing it fully well that such lapses could expose the patient to danger. Fortunately during his stay in the said Nursing Home the child was diagnosed with fever where as the diagnosis would have been different, if the treating doctors will rely on the report of the OPs and based on that report, if the treatment provides, then entire treatment will be incorrect, false and erroneous. In respect of such allegation we are of the view that there was a gap of about 16 hours by and between the two blood tests, not only that the Complainant has admitted that after admission in the Nursing Home the child was administered with some medicines for necessary relief. Admittedly in the report of the blood test done by the Nursing Home the platelet count was shown as 3.0 lakhs. Though according to the Complainant is is quite normal, but in support of such comment the Complainant did not adduce any medical literature to show us that in respect of this child what should be platelet count in normal condition. The complainant has made allegation that the report of the OPs is incorrect and erroneous and the OPs have drawn the blood specimen from the child in a most careless and negligent manner, but to prove this averment and allegation no convincing documentary evidence is forthcoming from the end of the Complainant. Mere making of wild allegation without any cogent document cannot prove the said allegation, it should be substantiated with cogent evidence. Base on surmise and conjecture the medical negligence cannot be proved. In the instant complaint no application was made by the Complainant for bringing expert opinion from the expert doctor to prove the medical negligence of the OPs. Therefore without any expert opinion we are not in a position to draw the conclusion that the service and action of the OPs suffer from deficiency in service as well as there is medical negligence on behalf of the OPs.   

Since the condition of the child improved considerably in the morning, the Complainant got him discharge on signing a customary bond making full payment of the Nursing Home Bill for Rs.25,036/-.  Therefore it is clear to us that the report of the OPs could not affect the health of the child and hence the apprehension of the Complainant that any fatal may occurred, has no basis at all. Claiming refund of the Nursing Home bill along with compensation and cost this complaint is initiated. But in our considered view as the Complainant has miserably failed to prove the allegation as made out in the complaint with cogent and convincing documentary evidence, hence the Complainant is not entitled to get any relief through this complaint. Thus the complaint fails.

Going by the foregoing discussion hence it is order that the Consumer Complaint being no-CC/49/2019 is hereby dismissed on contest. However considering the facts and the circumstances there is no order as to cost.

Let plain copy be given to the parties free of cost as per the CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER