Date of Filing: 09-10-2015 Date of Final Order: 18-01-2018
Sri Asish Kumar Senapati, President
This is an application u/s 12 of the C.P. Act, 1986.
One Smt. Renu Bala Biswas, (hereinafter referred to as the Complainant) filed the complaint against Poddar Speciality Hospital (P) Ltd., and Dr. N. Mahapatra (hereinafter referred to as the OPs) alleging medical negligence and deficiency in service. Subsequently, United India Insurance Co. Ltd. had been added as the OP No.3 on prayer of OP No.1, Podder Speciality Hospital (P) Ltd. as per order No.7dated 01.02.16.
The gist of the complaint case may be described as follows:-
The Complainant is the holder of RSBY Card granted by the Govt. of West Bengal. She came to the OP No.2 at OP No.1 Hospital for her Gynaecological problem and the OP No.2 advised the Complainant for Hysterectomy operation at the OP No.1 Hospital. Accordingly, the Complainant took admission as Indoor Patient under the OP No.2 at OP No.1 Hospital by depositing her RSBY Card for realization of Hospital charges including the fees of the OP No.2. After admission, the OP No.2 told the patient that besides hysterectomy operation, another operation Cholecystectomy was necessary for which the OP No.2 demanded additional amount of Rs.14,000/-. The son of the Complainant, namely, Nikhil Biswas paid the said amount of Rs.14,000/- to the OP No.2 but the OP No.2 did not issue any money receipt for the said payment. The OP No.2 performed Hysterectomy and Cholecystectomy operations of the Complainant on 08.07.15 in the same sitting at OP No.1 Hospital but after operation, the Complainant started suffering from severe pain in her upper abdomen and after 2/3 days, she developed jaundice with fever and respiratory distress. Seeing the critical condition of the patient, the OP No.2 referred the patient to Anandaloke Hospital, Siliguri on 21.07.15 and the patient was admitted there in critical condition. After examination and investigation, Doctor of Anandaloke Hospital found Cholecystectomy status with narrowing of upper CBD/CHD and upstream biliary dilatation, Hyperbillrubinaemia with billirubin count 40.7 mg, Hypokalemia, Basal Pneumonitis and Septicaemia. The Specialist Doctor of Anandaloke Hospital managed the critical condition of the Complainant conservatively to some extent and explained that Cholecystectomy operation done by the OP No.2 at Cooch Behar in unskilled manner and faulty and all the post operative sufferings were impact of the Ligature of common Hepatic Duct causing obstruction to the outflow of bile. Being unable to take further measures, the said Complainant was discharged from Anandaloke Hospital on 23.07.15 and referred to higher centre for better management. The Complainant incurred a sum of Rs.30,000/- for her treatment at Anandaloke Hospital and ultimately, the Complainant returned to Cooch Behar and went to Dr. T. Paul at Ritari Health Care Pvt. Ltd. on 23.07.15 and got admitted there. Dr. T. Paul examined the Complainant and after investigation, informed the patient party that the condition of the patient was critical and she was suffering from severe jaundice having high Bilirubin count and Basal Pneumonitis and septicaemia which were the impact of wrongly done Cholecystectomy operation on 08.07.15 by ligation of Common Bile Duct. The Doctor further explained that due to ligation of Common Bile Duct, the flow of Bile from liver to intestine were blocked, as a result, the Bilirubin count exceeded the normal range of 1 to 1.2 mg and consequently, severe jaundice started. He advised that major operation was required to be done immediately for repair of the common Bile Duct. The Doctor also explained the risk factor of the Complainant. On 28.07.15, Dr. T. Paul performed the operation and ultimately, the Complainant was discharged on 05.08.15 after full recovery and now the Complainant is leading smooth life without any complaint. The Complainant paid a sum of Rs.95,000/- for her treatment at Ritari Health Care Pvt. Ltd. The OP Nos.1 & 2 did not deliver any medical papers to the Complainant in spite of written request dated 14.09.15. The OP No.2, being a Gynaecologist, performed the Cholecystectomy operation of the patient in unskilled and negligent manner causing injury and suffering of the Complainant and thus he perpetrated unfair trade practice. The OP No.1 being a licensed organization also perpetrated unfair trade practice in connivance with OP No.2.
The Complainant has claimed Rs.3,65,500/- for medical negligence and unfair trade practice of the OP Nos. 1 & 2. The cause of action of the present case arose on 08.07.15 and the Complainant has paid prescribed fees for filing of this complaint with Postal Order amounting to Rs.200/-.
The OP Nos. 1, 2 & 3 contested the case by filing W/V.
The OP No.1 filed W/V on 02.08.16 inter-alia denying the material allegations made out in the complaint contending that the case is not maintainable and the complaint has no cause of action to file the present case against the OPs. The case is also bad for defect of parties. It is the version of the OP No.1 that the OP No.1 is a Nursing Home having better equipment and infrastructure for treatment of patients and the OP No.1 followed the advice of the attending Doctors and in the present case it acted as per advice of the OP No.2. There was no negligence or unfair trade practice on the part of the OP No.1. The Op No.1 has prayed for dismissal of the complaint with cost.
The OP No.2 filed W/V on 16.02.16 inter-alia denying the material allegations made out in the complaint contending that the case is bad for defect of parties and it is not maintainable for want of cause of action. It is the specific case of the OP No.2 that the Complainant came to the Op No.2 with severe complications and abdominal pain and on examination, the OP No.2 advised for some tests and it appeared that the patient had Prolapse Uterus with Cystocele and it was found that she was also having Gall Bladder Stone and it needed immediate surgical intervention. The patient party was also explained in details about the operation, its complications and nature of risk involved and on taking the consent, the operation was done at OP No.1 Hospital on 08.07.15. The operation was uneventful but after few days, the patient developed jaundice and she was kept in that hospital for management and treatment. The OP No.2 took advice of Dr. R. Gupta, MS, General Surgery and other Doctors also examined the patient from time to time and evaluated the situation. The patient party was assured that there was nothing to worry and the OP No.2 referred the patient for higher centre on 15.07.15 without any delay to avoid any further complications but unfortunately, the patient party denied to take the patient to North Bengal Medical College & Hospital and compelled the OP No.2 to refer the patient to Anandaloke Hospital, Siliguri. Ultimately, the patient party took the patient to Anandaloke Hospital, Siliguri, defying the advice of the OP No.2. The OP No.2 was compelled to put his signature on an undertaking that the Insurance Co. would pay the entire cost of treatment of the patient in future and some hooligans also harassed the OP No.2 and damaged his Car, for which the OP No.2 lodged an FIR. The OP No.2 had no knowledge about any treatment of the patient by Dr. T. Paul at Ritari Health Care Pvt. Ltd. The OP No. 2 has asserted that ligation of common bile duct is a common phenomenon in Cholecystectomy which may perform by any expert and repairing is not a major operation, as alleged. The OP No.2 is a Gynaecologist having MD Degree and wide experience in the operative surgery and he has authority to perform Cholecystectomy operation and so, there is no deficiency in service and medical negligence of the OP No.2. The Op No.2 has prayed for dismissal of the complaint.
The OP No.3 United India Insurance Co. filed W/V on 10.05.16 inter-alia denying the material allegations by taking some technical defense. It was asserted that Poddar Seva Sadan Pvt. Ltd. was covered under professional indemnity policy subject to terms and conditions of the policy for the period from 01.07.13 to 30.06.14. It was also asserted that no relief was claimed against the OP No.3 and so, the case against the OP No.3 is liable to be dismissed 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/unfair trade practice, as alleged by the Complainant?
- Whether the Complainant is entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point No.1.
The Ld. Agent for the Complainant has submitted that the Complainant is a consumer of the OP Nos.1 & 2 as she hired services of OP Nos.1 & 2 on payment. In reply, the Ld. Agents for the OPs submit that they have nothing to say on this point.
Having heard the Ld. Agents of both sides and on perusal of the materials on record, we find that the Complainant is a consumer of the OP Nos.1 & 2 as she hired services of the OP Nos.1 & 2 for her treatment.
Point No.2.
The Ld. Agent for the Complainant has submitted that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint. It is argued that cause of action arose within the territorial jurisdiction of this Forum and claim amount is also within the pecuniary limit of this Forum. In reply, the Ld. Agents for the OPs submitted that they have nothing to say on this point.
On perusal of the written complaint, w/v, evidence and documents submitted by both sides, we find that cause of action arose within the territorial jurisdiction of this Forum and claimed amount is also within the pecuniary limit of this Forum. Hence, we hold 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 has submitted that the Complainant came to the OP No.2 at OP No.1 Hospital on 06.07.15 and after clinical examination, the OP No.2 advised the Complainant to admit herself at OP No.1 Hospital for her Hysterectomy operation. It is argued that after admission, the OP No.2 told the Complainant and her son that besides Hysterectomy operation, another operation Cholecystectomy was necessary in the same sitting for which the OP No.2 demanded additional amount of Rs.14,000/- and the son of the Complainant, namely, Nikhil Biswas paid the said amount of Rs.14,000/- to the OP No.2 but the OP No.2 did not give any money receipt. It was argued that on 08.07.15, the OP No.2 performed both Hysterectomy and Cholecystectomy operations but after 2/3 days, the patient developed jaundice with fever and respiratory distress and pain over her upper abdomen. He submitted that the patient informed about her problems to the OP No.2 and the staff of OP No.1 but of no result. Ultimately, the OP No.2 referred the patient to Anandaloke Hospital, Siliguri on 21.07.15. He further contended that after examination and investigation, Doctor of Anandaloke Hospital found post-Cholecystectomy status with narrowing of upper CBD/CHD and upstream biliary dilatation, Hyperbillrubinaemia with billirubin count 40.7 mg. and the Doctors managed the critical condition of the Complainant and informed that Cholecystectomy operation done by OP No.2 at Cooch Behar in unskilled manner and all the post operative sufferings were the impact of the Ligature of common Hepatic Duct causing obstruction to the outflow of bile. It was urged that the patient was discharged from Anandaloke Hospital on 23.07.15 on getting payment of Rs.30,000/- and ultimately the complainant went to Dr. T. Paul at Ritari Health Care Pvt. Ltd. on 23.07.15 and Dr. T. Paul explained that the complications were due to cholecystectomy done elsewhere in a unskilled manner and Dr. T. Paul performed the operation by repairing the CBD injury on 28.07.15 and the patient was discharged on 05.08.15 after full recovery. It was urged that the patient party paid a sum of Rs.95,000/- to the Ritari Health Care Pvt. Ltd. towards the treatment of the Complainant. He further argued that the OP Nos.1 & 2 did not deliver any medical papers to the Complainant for which a letter dated 14.09.15 were sent to the OP Nos.1 and 2 by Registered Post requesting them to supply the BHT, Treatment sheets, investigation reports etc. to the Complainant but of no result. He contended that the OP No.2, being a Specialist in Gynaecology performed the Cholecystectomy operation of the patient in unskilled and negligent manner causing sufferings of the Complainant and thus he perpetrated unfair trade practice. It is urged that Cholecystectomy operation falls within the ambit of General Surgeon but the OP No.1 having a private hospital had perpetrated unfair trade practice in connivance with the OP No.2 and allowed a Gynaecologist to perform General Surgery. It is urged that the Complainant has prayed for Rs.3,65,500/- as compensation. He contended that the cause of action arose on 08.07.15 within the jurisdiction of this Forum. He prayed for passing appropriate order against the OP Nos.1 and 2 so that the Complainant may get an award of Rs.3,65,000/- against the OP Nos.1 and 2.
In reply, the Ld. Agent for the OP No.1 submits that the OP No.1 is a reputed private hospital and the case against the OP No.1 should be dismissed u/s 26 of the CP Act, 1986. He has argued that the OP No.1 followed the advice of the attending Doctors with great care there was no negligence on the part of the OP No.1 regarding treatment of the Complainant from 06.07.15 to 21.07.15. He further submitted that the OP No.1 had submitted all treatment sheets of the patient (marked from page no.9 to 36). He has prayed for dismissal of the complaint with cost.
The Ld. Agent for the OP No.2 submits that the OP No.2 is a renowned Gynaecologist having vast experience. It is urged that there is no cause of action to file the case against OP No.2 and the case is bad for defect of parties. It is contended that the Doctors of Anandaloke Hospital and Ritari Health Care Pvt. Ltd. are necessary parties to the present proceeding. It is argued that the Complainant came to the OP No.2 with severe complications and abdominal pain and after examination, it was found that she had Prolapse Uterus with Cystocele and having Gall Bladder Stone which needed immediate surgical intervention. It was urged that the details of the operation and risk involved were explained to the patient party and they agreed to get the operation done by OP No.2 and gave high risk bond before operation. He argued that OP No.2 performed the Vaginal Hysterectomy, Pelvic Floor Repair and Cholecystectomy operation on 08.07.15 at a time and those operations were uneventful but after few days the patient developed jaundice with some pain and she was kept under the management and treatment of the OP No.1 and ultimately the OP No.2 took advice from other Surgeon and Doctors of that hospital. It was further submitted that the patient was referred to the higher centre i.e. North Bengal Medical College & Hospital on 15.07.15 but unfortunately, the patient party denied to take the patient to the North Bengal Medical College & Hospital and they agitated with a view to take the patient to Anandaloke Hospital and compelled the OP No.2 to refer the patient to Anandaloke Hospital. It is contended that on 21.07.15 the patient was referred to Anandaloke Hospital. It was argued that the OP No.2 was hackled by the hooligans of the patient party when the car of the OP No.2 was damaged and the OP No.2 was compelled to lodge an FIR and the mob compelled the OP No.2 to write an undertaking that Insurance Co. would pay the entire cost of the treatment of the Complainant. He further argued that there was no negligence or deficiency in service on the part of the OP No.2 as the OP No.2 treated the patient with great care and caution and post-operative complication is a common phenomenon in any sort of surgical intervention. He further contended that without admitting anything, it may be said that such sort of treatment done by Dr. T. Paul was not so critical and ligation of CBD is a common phenomenon in Cholecystectomy and repairing of CBD for smooth flow of bile is not a major operation, as alleged. He has further argued that OP No.2 is a Gynaecologist having MD degree and wide experience in the operative surgery as well as having authority to perform Cholecystectomy operation. He drew our attention to a number of decisions reported in 2016(4) CPR 190 (NC), 2013(4) CPR 88 (NC), 2016(3) CPR 20 (NC), 2014(2) CPR 340 (NC). He has prayed for dismissal of the complaint.
The Ld. Agent for the OP No.3 has submitted that the Complainant is not a consumer in the eye of law and the Complainant has failed to establish the case of medical negligence as no expert opinion was filed by the Complainant. It is argued that M/s Poddar Speciality Hospital Pvt. Ltd. was covered under errors and omissions policy subject to terms and conditions of the said policy for the period from 22.01.15 to 21.01.16. He has submitted that the Complainant is not entitled to get any relief against OP No.3 as there is no dispute between the Complainant and the OP No.3.
We have gone through the written complaint, w/v, evidence, documents and written argument submitted by both sides.
Admittedly, the Complainant was treated by the OP No.2 at OP No.1 Hospital during the period from 06.07.15 to 21.07.15. The OP No.1 is a private hospital. It is the duty of the OP No.1 to render day to day service to the patients on receiving charges. In the present case, the OP No.1 has filed documents regarding treatment given to the Complainant during the period from 06.07.15 to 21.07.15. The OP No.1 took high risk bond from one Nikhil Biswas, son of the Complainant, on 06.07.15 in a very casual manner. No reason has been assigned by the OP No.1 what prevented the OP No.1 to take high risk bond from the patient. Moreover, why the high risk bond was obtained on 06.07.15 in lieu of 08.07.15 when the operation was fixed on 08.07.15 by Dr. N. Mahapatra? There is no mention in the high risk bond about the type of operation to be performed by Dr. Mahapatra and when it is to be performed. The OP No.1 has given no explanation why the Complainant was un-attended from 11.07.15 to 13.07.15 and from 16.07.15 to 18.07.15. It is not the case of the OPs that the OPs treated the patient free of charge. Therefore, we find reasons to hold that the OP No.1 has deficiency in service in rendering proper service to the Complainant during the period from 06.07.15 to 21.07.15.
Admittedly, the OP No.2 performed two operations i.e. Cholecystectomy and Hysterectomy of the Complainant on 08.07.15 in the same sitting. Admittedly, the OP No.2 is a Specialist in Gynaecology. Admittedly, the OP No.2 did not take assistance or help of any General Surgeon at the time of Cholecystectomy operation of the Complainant on 08.07.15. The Ld. Agent for the OP No.2 claimed that any Gynaecologist is competent for Cholecystectomy operation but he has failed to produce any authority or any document to establish that Gynaecologist is authorized to perform Cholecystectomy operation. The OP No.1 had submitted all treatment sheets of the patient Smt. Renubala Biswas from 06.07.15 to 21.07.15. On a careful perusal of the documents, we find that no Doctor attended the patient from 11.07.15 to 13.07.15 and from 16.07.15 to 18.07.15. Not only that, the medicine chart shows that medicines prescribed on 10.07.15 were given to the patient on 12.07.15 and 13.07.15 and the medicines prescribed on 14.07.15 were given to the patient on 15.07.15. Therefore, it is crystal clear from the documents supplied by the OP No.1 that no Doctor attended the Complainant who was suffering from serious ailments with effect from 11.07.15 to 13.07.15 and from 16.07.15 to 18.07.15. No explanation was given by OP Nos.1 and 2 why no Doctor attended the Complainant during the period from 11.07.15 to 13.07.15 and from 16.07.15 to 18.07.15. It is also strange to note that the OP No.2 took no high risk bond from the patient but the OP No.1 took high risk bond i.e. proxy bond from one Nikhil Biswas, son of the Complainant but there is no mention about the type of operation i.e. Cholecystectomy and Hysterectomy (page 33 of the document submitted by OP No.1), It appears from the continuation sheet of treatment (page 14) that the OP No.1 requested Dr. Gupa (General Surgeon) to examine the patient on 15.07.15. It also appears from the said continuation sheet that Dr. Gupta examined the patient and found having deep jaundice and advised the patient for an USG of whole abdomen. It appears from continuation sheet (page 16) that Dr. R. Gupta and Dr. S. Singha (Surgeons) found from MRCP report “complete obstruction of CBD” and referred the patient to higher centre for further management. There is no record that the patient was referred to North Bengal Medical College & Hospital on 15.07.15 and due to compelling circumstances, the patient was referred to Anandaloke Hospital on 21.07.15. With due regard to the decisions as referred by the Ld. Agent for the OP No.2, we find that said decisions are not applicable in the present case. After a careful consideration over the entire materials on record, we find that the OP No.2, being a Gynaecologist, entered into an area of General Surgery by performing operation of Cholecystectomy on 08.07.15. It was the duty and obligation of the OP No.2 to treat the Complainant carefully during the period from admission till the discharge as she was admitted under him but it is very unfortunate to note that the OP No.2 did not attend the patient from 11.07.15 to 13.07.15 and from 16.07.15 to 18.07.15 without any reason. The OP No. 2 was so casual that he did not refer the patient to higher centre for further evaluation and management before 21.07.15. The Complainant has filed a document i.e. Xerox copy of an undertaking dated 21.07.15 by OP No.2 stating that the Insurance Co. will pay all expenditure of the treatment for Smt. Renu Bala Biswas in future. The explanation given by OP No.2 that he signed the undertaking under compelling circumstances on 21.07.15 is not at all believable. The OP No.2 has also asserted that ligation of common bile duct is not a critical operation but it has not been explained what prevented him to repair the ligation of CBD of the Complainant.
We find that the O.P. No 2 has medical negligence on the following reasons:
- He performed Cholecystectomy operation on 08.07.15 without taking help/assistance of a General Surgeon.
- He did not visit the Complainant from 11.07.15 to 13.07.15 and from 16.07.15 to 18.07.15 without any reason.
- He did not refer the Complainant to any Higher Centre for better treatment till 21.07.15 in spite of knowledge that the condition of the Complainant was deteriorating.
- He has not obtained the high risk bond from the patient.
- He obtained proxy bond from the son of the Complainant on 06.07.15 i.e. two days before operation without informing about the type of operation.
Therefore, we find gross negligence on the part of the OP No.2, Dr. N. Mahapatra in treatment of the Complainant.
Considering the above, we are of the view that Complainant is entitled to get compensation of Rs.1,50,000/- from the OP No.1 and Rs.2 lakh from the OP No.2 for deficiency in service and medical negligence. We also think that Complainant is entitled to get litigation cost of Rs.5,000/- against the OP Nos.1 & 2.
In the result, the complaint case succeeds.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby allowed on contest against the OP Nos.1 & 2 with litigation cost of Rs.5,000/- and be dismissed against the OP No.3 without any order as to cost.
The OP No.1 is directed to pay Rs.1,50,000/- for deficiency in service and Rs.2,500/- as litigation cost to the Complainant by 45 days from the date of this order.
The OP No.2 is directed to pay Rs.2,00,000/- for medical negligence and deficiency in service and Rs.2,500/- as litigation cost to the Complainant by 45 days from the date of this order.
The OP Nos. 1 & 2 are directed to comply the aforesaid order by 45 days from the date of Final Order, failing which each of the OP Nos.1 & 2 has to pay Rs.50/- for each day’s delay and the accumulated amount is to be deposited in the State Consumer Welfare Fund.
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.
