Presented by: -
Shri Debasish Bandyopadhyay, President.
Complaint Case No. 359/2018
The complainant of this case has filed this complaint case against the OPs for passing direction to the OPs to pay compensation to the tune of Rs. 19,00,000/- only for unnecessary harassment and causing mental pain and agony and also for financial loss of the complainant due to medical negligence of the OPs and as a result of which the wife of the complainant expired.
Fact of this case
Case of the complainant
The case of the complainant which is deciphered from the petition of complaint which is filed by the complainant against the OPs in bird’s eye view is that one Pronati Ghosh wife of the complainant was admitted at the OP No. 1 Hospital at General Bed being No. 306 for the purpose of replacing her damaged ball of her left hip joint. On 11.02.2017 when the OP No. 2 was not on duty and as such the Hospital Authority (OP No. 1) informed the complainant that the operation of Pronati Ghosh would be done on 13.02.2017 subject to the approval of OP No. 2. It is stated that the said operation was done after all standard procedures and thereafter the patient was able to work with the help of walker but subsequently the patient unexpectedly started suffering from diarrhea which came under controlled within 2 days. However, she had the symptom of flatulence which was aggravated and this patient had to face breathing trouble and for that reason the date of discharge of the said patient was delayed and then the patient was shifted from bed No. 306 to SD – 3 where ICU is located and then the flatulence subsided but breathing problem further deteriorated and then the chest x-ray was done which has shown a patch of pneumonia in the lungs which was not there at the time of admission. It is submitted that subsequently the patient was shifted to ICU-7 within the same dormitory wherein high powered injection were being administered from the 1st day in ICU to control the impact of Pneumonia and the condition of the patient was reportedly getting better but at about 7.30 AM on 23.02.2017 the complainant received a call from the OP No. 1 Hospital Authority when the Hospital Authority disclosed that the patient’s condition was serious on ventilation and suffered cardiac arrest and then the complainant alongwith other family members reached at the OP No. 1 Hospital before 10.30 AM when the said patient Pronati Ghosh passed away . It is alleged by the complainant that due to overdose of the drugs as well as negligence on the part of the OPs the patient died as she suffered diarrhea after operation and flatulence and thereafter Pneumonia and result had suffered from breathing trouble as her post operation ailments which was not diagnosed properly and therefore the treatment which has been completely erroneous though the condition of the patient day after day deteriorated but the Hospital Authority did not constitute any medical board which is also negligence on the part of the OPs. For all these reasons the complainant has filed this complaint case against OPs praying for compensation on the ground of deficiency of service , unfair trade practice and medical negligence.
Defence Case
After receiving notice both OPs appeared before the Ld. Forum / Commission in this complaint case and contested this case by filing W/V denying all the material allegations leveled against both the OPs. According to the defence case the OPs have admitted that the above noted patient was admitted on 11.02.2017 at the OP No. 1 Hospital with a left hip fracture which needed surgery under the OP No. 2 as well as Dr. Gairik Ghosh but the OP was not on duty on 11.02.2017 and for that reason Dr.Gairik Ghosh was on call attended the complainant and specifically at the request of the complainant / patient party the patient was admitted under the OP No. 2 as well as Dr. Gairik Ghosh who arranged the pre operative work up for surgery and Op No. 2 made a pre –operation visit to see the patient on 12.02.2017 (Sunday) though the OP No. 2 was not on duty on that day. It is submitted that Dr. Gairik Ghosh did a surgical check up and a routine pre-anesthetic check up and at the time of check up the patient told Dr. Gourik Ghosh that she was under problem of constipation which is very common in hip joint fracture due to severe pain and as such Dr. Ghosh advised the nurse to give the patient and enema before operation and thereafter Bipolar Hemiarthroplasy was performed by OP No. 2 arranged for normal post-operative care and after a standard period the patient set up in the bed and was advised to start working with the help of walker on and from 14.02.2017 and it was decided that the patient would be discharged from the OP No.1 Hospital on 19.02.2017. After mobilizing adequately but on 14.02.2017 the said patient complained of constipation for which mild laxative was prescribed and immediately after application of the same the patient started passing stool which was expected to such patient and she was kept of passing stool and eventually started having diarrhea which was not uncommon of the patient with hip fracture who was constipated due to severe pain and unfortunately the diarrhea became severe and uncontrollable with fluids and ORS and thereafter Dr. Monimoy Ghosh, Senior Medical Consultant checked up the said patient at the OP No. 1 Hospital who immediately taken measures to bring the diarrhea under control but her G.I. symptom persisted with severe flatulence, malise, nausea etc. and without finding any other alternatives she was shifted to ITU for closure monitoring and at that point of time Dr. Dilip Todi, Senior Consultant, Gastroenterologist and Dr. Partha Sen, Senior most Consultant Surgent checked up the said patient . It is pointed out that the son of the patient as well as complaint were constantly updated about the situation and Op No.2 also made a personal phone call with Dr. Susavan Pal, Physician and also discussed the matter with Dr. Sen about the steps taken and Dr. Pal agreed that suffering possible has been done and finally G.I. symptoms improved but she passed a huge volume of stool again on 19.02.2017 and thereafter another problem was cropped up and she was developed chest infection with Pneumonia which is also a common problem in the patient who have hip fractured and unable to mobilize fully. It is alleged that the patient was medically checked up by Jayanta Dutta, Medical Consultant repeatedly and by Dr. Sandipan Naskar, Dr. Sudipta Mukherjee, Dr. Mukesh and Dr. Sabir (ITU) and strong antibiotic were applied on 22.02.2017, infection was seemed controlled and everyone was hopeful that he would be able to mobilize gradually and return to normalcy. It is further alleged that in between 12.02.2017 & 22.02.2017 the OP No. 2 had come across with the son of the complainant for at least eight times and the OP No. 2 also met with the complainant on 22.02.2017. But unfortunately the patient suddenly collapsed in the morning on 23.02.2017 and finally passed away at 8.15 AM on 23.02.2017 . For all these reasons the OPs have pointed out that they have there no medical negligence, deficiency of service or unfair trade practice. It is further pointed out that the OPs have given the patient with best possible and appropriate treatment and have taken all possible measures to safeguard her life. For all these reasons the OPs have prayed before this District Commission for dismissing this complaint case with heavy cost.
Points of consideration
On the basis of the pleadings the parties this District Commission for the interest of proper and complete adjudication of this case and also for the interest of determination of the fate of this case, is going to adopt the following points for consideration :-
(i) Has the District Commission jurisdiction to try this case?
(ii) Is the complainant consumer under the OPs or not?
(iii) Is this case maintainable in its present form and in the eye of law?
(iv) Has the complainant any cause of action for filing of this complaint case ?
(v) Has the complainant is entitled to get the compensation of Rs. 19,00,000/- from the OPs or not?
(vi) To what other relief / reliefs is the complainant entitled to get in this case?
Evidence on record
The complainant in order to prove his case has produced any evidence on affidavit against the said evidence on affidavit, the OPs have submitted interrogatories and against the said interrogatories the complainant has given reply.
On the other hand to disprove the case of the complainant both the OPs have submitted their evidence on affidavit and against the said evidence on affidavit the complainant has filed interrogatories and against the said interrogatories the OPs have given their reply.
In addition to filing evidence on affidavit by the parties, both parties have filed their documents in support of their case which have been marked as annexure
Argument highlighted by the parties
The complainant and OPs have filed their BNA and in addition to filing the BNA Ld. Advocates of both the parties also have highlighted their verbal argument and in course of verbal argument Ld. Advocates of both parties has given emphasis on the evidence on affidavit filed by the parties alongwith their interrogatories and reply and OPs also have filed series of case laws.
Decision with reasons
The first four points of consideration which have been framed on the ground of jurisdiction, maintainability point, cause of action issue and whether the complainant is a consumer in the eye of law or not, are vital issues and so these four points of consideration are clubbed together and taken up for discussion jointly at first. Regarding these four points of consideration it is very important to note that the OPs even after their appearance in this case and after filing W/V have not filed any separate petition on the ground that the complaint case is not maintainable but the Ops in their W/V have challenged the above noted issues.
For the purpose of arriving at just and proper decision and also for proper and complete adjudication of these four points of consideration, there is urgent necessity of making scrutiny of the materials of this case record and there is also of urgency for scanning the evidence on record which is lying in this case record.
After going through the material of this case record and also after making scrutiny of the evidence on record, this District Commission finds that the OPs are practicing and / or running their business (Hospital) within the district of Howrah and this matter is clearly indicating that this District Commission has territorial jurisdiction to try this case. Over the issue of jurisdiction point this District Commission after close scanning of the material of this case record finds that the claim of the complainant in this case which has been highlighted against the OPs is far below than that of Rs. 20,00,000/- which is clearly reflecting that this District Commission has its pecuniary jurisdiction as per provisions of Consumer Protection Act, 1986. Thus, it is crystal clear that this District Commission has its territorial and pecuniary jurisdiction to try this case.
Now, the question is whether the complainant is a consumer under the OPs or not ? In this connection this District Commission after making scrutiny of the documents on record which have been shown as annexure by the complainant finds that the complainant has paid Rs. 2,35,091/- to the OP as cost of hospital charges and medicine out of which Rs. 1,89,545/- has been paid by the insurer, Family Health Plan Ltd. and balance about of Rs. 45,546/- has been paid by the complainant. It is also revealed from the documentary evidence that the OPs have received the said amount and all these factors are clearly highlighting that the complaint case under the definition of “Consumer” as per provisions of Section 2(1) (d) of Consumer Protection Act, 1986. All these factors are clearly depicting that the complainant is a consumer under the OPs in the eye of law.
Thus, the point of consideration No. 1 & point of consideration No. 2 are decided in favour of the complainant side.
The next question which has been connected with point of consideration No. 3 is that whether this case is maintainable in its present form and in the eye of law or not ? In this connection it is clearly revealed from the material of this case record as well as evidence on record that the patient Pronati Ghosh who is the wife of the complainant expired leaving behind the complainant as her husband and Shri Kallol Ghosh as her son and thus it is crystal clear the complainant and his son both are the legal heirs of deceased Pronati Ghosh. But fact remains that this instant complaint case has been filed by complainant himself. The son of the complainant has neither been added as a complainant nor been impleaded as proforma OP of this case. This factor is clearly reflecting that the complaint case is seriously bad for defect of parties. Moreover, it is also reflected from the case record that the deceased patient Pronati Ghosh was medically treated at the OP No. 1 Hospital by Dr. Gairik Ghosh for four times, Dr. Monimoy Ghosh for one time, Dr. Jayanta Dutta for six times, Dr. Dilip Todi for two times, Dr. Partha Sen for three times , Dr. Debabrata Bhuinya & Dr. S. Das ( Cardiologist) for two times. But it is very important to note that all these Doctors have not been impleaded as parties of this case due to the reason best known to the complainant. This factor is also reflected that this case is bad for non-joinder of parties.
From the pleadings of the parties it is clearly reflected that the complainant has lodged complaint before the West Bengal Medical Council as well as Health Department, Govt. of West Bengal but these two authorities also have not been impleaded as parties of this case. Moreover, this fact has been totally suppressed by the complainant in his complaint petition. In this regard, it is crystal clear that Meridian Medical Research & Hospital Ltd. has filed writ petition being No. 14655 of 2019 before the Hon’ble Apex Court under Article 226 of Indian Constitution in that case the complainant was a party as respondent No. 7 and that writ petition has been dismissed by the Hon’ble High Court. But this fact has totally been suppressed by the complainant in his complaint petition . All these factors are clearly reflecting that the complainant has not come before this Court in clean hand and for that reason the complainant is not entitled to get any equitable relief from this District Commission / Forum . All the above noted factors are reflecting that this complaint case is bad for non-joinder of necessary parties and the complainant has not come forward before this District Commission in clean hand and for that reason this case is found not maintainable in the eye of law. Thus the point of consideration No. 3 which is a very vital issue is decided in the complainant.
As this complaint case is found not maintainable, this District Commission finds that the complainant has no cause of action to file this case against the OPs. In this regard, it is very important to note that the complainant filed complaint against the OPs before the West Bengal Medical Council which has been dismissed by the West Bengal Medical Council . After making scrutiny of all relevant documents and against the said order of West Bengal Medical Council no appeal or writ petition has been preferred by the complainant before the Appropriate Forum. Thus, it is crystal clear that the complainant has admitted the decision of West Bengal Medical Council. In this regard, it is the settled principle of law that fact admitted need not be proved Section 58 of the Indian Evidence Act is very important in this regard. This factor is also reflecting that this complaint case is not maintainable in the eye of law and the complainant is stopped from challenging the decision of West Bengal Medical Council before any Forum. In this regard, the provisions of Section 115 of the Indian Evidence Act is also very relevant. All these matters are also clearly reflecting that the complainant has no cause of action for filing this case. Thus, the cause of action issue is a vital point of consideration which has been adopted by this District Commission is also decided against the complainant.
The point of consideration No. 4 which has been framed by this District Commission is connected with the question whether the complainant is entitled to get compensation of Rs. 19,00,000/- from the OPs or not ? Point of consideration No. 5 is connected with the question as to whether the complainant is entitled to get any other relief or reliefs in this case from the OPs or not?
For the purpose of arriving at just and proper decision regarding the above noted issues, there is urgent necessity of making scrutiny of the evidence on record (oral and documentary).
After going through evidence on record which is produced by both sides in this case , this District Commission finds that in this case the evidence of the complainant has not been corroborated by any other witness of the complainant. In this regard, it is very important to note that even the son of the complainant Mr. Kallol Ghosh has also not supported the case of the complainant. Moreover, the complainant in support of his point of contention has neither prayed any expert examination nor sought for any expert opinion . Moreover, no Dr. has been examined as a witness in this case as expert. In this regard, the decision of the Hon’ble Apex Court which is decided by the Hon’ble Apex Court in the case of Bombay Hospital & Medical Research Centre Vs. Asha Jaiswal and others (2021 SCC On Line SC 1149) is very important.
Hon’ble Apex Court in the said reported case law has been pleased to observe that “It may be mentioned here that the complainant had led no evidence of experts to prove the alleged medical negligence except their own affidavits. The experts could have proved if any of the doctors in the Hospital providing treatment to the patient were deficient or negligent in service. A perusal of the medical record produced does not show any omission in the manner of treatment. The experts of different specialties and super-specialties of medicine were available to treat and guide the course of treatment of the patient. The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures.
It is also the settled principle of law that term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in follow up care, at any point of time by treating doctors or anyone else it is always open to be considered by the Commission. This legal principle has been observed by Hon’ble Apex Court in the case of Chandra Rani Akhori and others Vs. M.A. Methusethupathi (Doctor and others) and it is reported in II (2022) CPJ 51 (SC). In this regard this District Commission after going through the papers of medical treatment provided by the OPs finds that all necessary routine pre-operative and post-operative steps were taken and there was no problem during surgery. It is also the reflected from the documents which have been shown as annexure by the complainant side as well as OPs that the patient Pronati Ghosh after left hip joint operation set up and she started walking with the help of walker. This matter is clearly reflecting that there was no medical negligence on the part of the OP No. 2 and OP No. 1.
Moreover, as per decision of the Hon’ble Apex Court in Jacob Mathew Case which is reported in “2005” this (SCC) Page-1 the onus of proving medical negligence lies largely upon the complainant / claimant and such onus is to be discharged by leading cogent evidence. In this instant case the complainant side has failed to produce any cogent evidence / expert evidence to show that there was medical negligence on the part of OPs. In this regard, it is important to note that the complainant had filed one complaint before West Bengal Medical Council and West Bengal Medical Council after making scrutiny of the documents dismissed the said complaint. In view of such position it is crystal clear that the complainant has failed to prove his complaint case. After going through the evidence on record this District Commission finds that the OP No. 1 Hospital had taken all possible measures to safeguard the life of the admitted patient Pronati Ghosh and the OPs have given the patient with best possible and appropriate treatment for her medical treatment.
A cumulative consideration of the above noted discussion goes to show that the complainant has failed to prove his case of medical negligence against the OPs and so the complainant is not entitled to get any compensation from the OPs. Thus, the points of consideration Nos. 4 & 5 are also decided against the complainant side.
In the result, it is accordingly,
ORDERED
That this Complaint Case being No. 359/2018 be and the same is dismissed on contest. No order is passed as to cost.
The parties of this case are entitled to get a free copy of this judgment as early as possible.
Let this judgment / final order be uploaded in the official website of this District Commission.
Dictated & corrected by me
President
