The case of the complainant is that due to some physical problem and abdominal pain petitioner went to the nursing home of the OPs.
One unknown doctor at the nursing home of the OP detected ‘äppendicotary’ problem i.e. appendicitis and suggested for operation. After due medical taste petitioner was operated by some doctor on 26/04/2017 but strongly name of doctor or registration number of doctor has not been written in the prescription. Petitioner was discharged after operation of appendicitis.
That on 03/05/2017 petitioner went to the OPs for check up and stated about some physical problem. Though the problem became excruciating but the OPs on repeating medicine failed to give any relief to the petitioner.
Getting no relief this petitioner attended one Dr. Ganesh Biruly at Balurghat with severe Back Pain and the doctor suggested for various tests and also detected some ‘ Lumber’ problem. Due to growing back pain and incapacity of walking this petitioner went to N.R.S. Medical College and Hospital. The said hospital clearly detected that at the time of anesthesia for appendectomy spiral portion of this petitioner was injured. For such injury there has been major problem of back pain and normal walking. It is due to the negligence and careless work of the operating doctor and anesthetist such problem has been occurred to the petitioner. From the last report of Dishari Health Point Pvt. Ltd. It was found that there was ‘deficiency of coagulation factor other than factor VII’ but no major step was taken to the patient at the time of operation.
As a result of such injury this petitioner has become inactive and cannot stand and walk without support of waist belt prepared by the orthopedic. Due to growing problem this petitioner has become handicapped. N.R.S. Hospital has suggested for further operation. But, there is little chance of recovery.
That at present petitioner is of 27 years of age. Petitioner has two children and wife. He used to maintain his family as a day labourer and there is no other earning member in his family. As a result the family is in starving condition. Even in this position the petitioner had to attend before the handicap board on repeated occasion. There is no chance of normal life and for the same his family has been suffering a lot. Moreover, the life of the petitioner has become clouded. Hence, the petitioner/complainant has come before this forum for redressal.
On the other hand the opposite party number 1 & 4 has filed a joint written version in which it is stated that the case is not maintainable in its present form.
That the complain has no cause of action to file this case against these OPs.
That the complainant has no locus standi to file this case against these Ops.
That the claim of the complainant is illegal, baseless and against the law and equity and also barred by limitation.
That the complain petition is defective for misjoinder and nonjoinder of necessary parties.
That the complain petition is not entertainable as the complainant is not the consumer under these Ops and the matter in dispute will not come under the purview of the consumer protection act.
That the complainant was treated by the Dr. Manoj Jha of Malda, who detected that the complainant was suffering from appendicitis. The clinical test and routine check up for OT of the complainant was done at Malda, which has not been mentioned in the complain petition with some positive motive.
That the complainant was never operated on 26/04/2017 in the nursing home of the OPs as stated in the complaint petition. The complainant was admitted in the nursing home of the OPs on 11/04/2017 and on the same date his preoperative check up and paraphernalia was done. The appendectomy was conducted by Dr. H.P. Mandal, M.S., renowned doctor and surgeon of North Bengal. After successful operation, the complainant was discharged from nursing home on 16/04/2017.
That the partner of the nursing home are educated, well reputed person, who established the said nursing home with a view to render medical service and treatment facilities within the surrounding remote localities. The OPs are carrying on the nursing home for last 4 years having all necessary permission and licenses from the concerned authority of Health Department, Govt. of W.B.
That the OPs performed all the duties and liabilities towards the complainant. For his medical treatment/ check up/ operation and also provided post operative suggestion/advice to the complainant. The OPs also sent the specimen of ‘appendix’ to the medecity, NABL Accredited laboratory for Histopathology report, here from it is revealed that the acute appendicitis of the complainant has no malignancy. The OPs also preserved and maintain preoperative examination report/anesthesia note, day to day bed head note properly.
That it is fact that the patient was suffering from ‘appendicitis’ and operation of the complainant was successfully done in the nursing home of the OPs and as such the complainant did not implead the doctor in this case. The complainant made allegation that the operation and check up and treatment were done by the OPs. But, the OPs are not the professional men to medically check up any patient or operation or preoperative functions were done by them.
That from the averment of the claim it is revealed that the patient was treated by various doctors, nursing home and other medical institution. The complainant alleged that he became inactive due to injury of spiral portion, which was committed at the time of anesthesia for operation of ‘appendectomy’. But, it is hypothetical, false and vexatious claim. No injury of spiral portion of the complainant was received by the complainant at the time of operation. If any injury committed at the time of ‘appendectomy’, the complainant could not be able to move immediately after removal or completion of affect of anesthesia and also sustained abnormal pain. But, the complainant after discharge went to his house by come down the stares of the nursing home from first floor. The ‘appendectomy’ operation of the complainant was done in the nursing home of the OPs was successful.
That the complainant with an intension to harass the innocent OPs and with an intention to extort money has filed this case. The complainant might have preoperative spinal problem or acute problem and the OPs cannot be held responsible for any other reasons of illness of the complainant.
That there is no negligence on the part of the nursing home. The OP-2 is not the partner or proprietor of the nursing home and the OP-3 has presently has no connection with the nursing home. The OP delivered adequate high quality care to the complainant.
That the anesthesia of the patient was done by Dr. S. Das properly. The OPs all along rendered all sorts of assistants and medical support to the patient since his admission and the OPs became astonished after receiving of the notice of this instant case and they cannot understand why they have been implicated in this case despite of rendering utmost service to the complainant.
That though there was no negligence on the part of the OPs but the complainant intentionally lodged allegations against the OPs for which the OPs sustained injury and there good will and reputation have been damaged and affected.
The spinal injury causes from car accidents, gun shots, falls or sports injuries and also from non traumatic causes, such as; infection, insufficient blood flow and tumors.
That the complainant is not entitled to get the amount or relief as claimed.
The complainant has filed deposition in chief on affidavit by PW-1.
The versions in the complaint petition and the versions in the deposition-in-chief are same.
On the other hand, a deposition by way of affidavit has been filed as OPW-1 from the side of OPs.
The versions in the written version and the versions in the deposition by way of affidavit of the OPs are same.
The OPs 2 & 3 though partners of the same nursing home had paid a deaf ear to the summon of this forum and had taken no steps. So, exparte hearing will go on against the OPs 2 & 3.
Points for Determination:
- Whether the complainant is a consumer?
- Whether there is any negligence on the part of the nurshing home/OPs towards the complainant?
- Whether the complainant is entitled to get any claim or relief from this forum?
Decision with reasons:
- On this point after hearing of arguments of both sides and on perusal of the documents filed by the parties, We’re of the opinion that the complainant is a consumer within the purview of CP Act. So, this point is decided in favor of the complainant.
- The OPs’ averment that he is not liable for any medical negligence does not stand as the whole treatment w.e.f. 11/04/2017 to 16/04/2017 was done at his Nursing Home under the doctors attached with his Nursing Home. The treating doctor is a part of the Nursing Home. In the instant case doctors are not only the employee of the Nursing Home but also the bread-earner of the Nursing Home. It is also noted that the doctors’ name had been mentioned in the prescription of the Nursing Home. This is a gross deficiency in service of the OP Nursing Home due to negligence by the treating doctor at the said Nursing Home owned by the OPs.
We have taken refuse to the observation of the Appex Court of India in the case Savita Vs. Director, National Heart Institute [AIR 2004 SC 5088]. “A claim petition filed against a private hospital for negligence cannot be dismissed on the ground of non-joinder treating doctor.”
“Hospital is responsible for the acts of its treating doctors, who are on the panel. Distinction cannot be made between treating doctors and doctors whose services are temporarily taken for treatment of patients.” [AIR 2004 SC 5088]
- From the medical document on record filed on behalf of the complainant (discharge certificate) issued from Dept. of Health and Family Welfare, Govt. of W.B., N.R.S. Medical College and Hospital, it is clearly found that there was a gross negligence on the part of the nursing home/OPs. So, this point is also decided in favor of the complainant.
- In the aforesaid medical document (discharge certificate) it is stated by the Dept. of Health and Family Welfare, Govt. of W.B., N.R.S. Medical College and Hospital that ‘’Discitis following spinal Anesthesia for Appendectomy”.
Citation:- 2016(4) CPR 294 (NC): Obligation of a medical practitioner emerges from fact that he does something to a human being which is likely to cause physical harm unless it is done with proper care and skill.
This forum has no authority to touch the said views stated by the medical authority of N.R.S. Medical College and Hospital. So, this forum can base its judgment on the said findings of N.R.S. Hospital and also the observation of NCDRC in the case referred at 2016(4) CPR 294 (NC).
In deciding the compensation the point decided by the N.C.D.R.C. in the case Appeal No. 408/2012 Dr. R.M. Gautam(Appl.) Vs. Master Nav Khshitij & Anr.(Resp.) “When allegation of medical negligence and mishandling of case has been established, amount of compensation cannot be interfered with.”
Moreover the situation that a 27 years old able bodied young man has been turned into a handicapped person due to negligence of treating doctors engaged by the OP Nursing Home has also been considered with human feeling. The complainant is the only bread-earner of a poor rural family. We wonder how this family is spending their lives and will also spend the long future days.
Hence,
ORDERED
That the instant CC case be and the same is allowed on contest.
The OPs (Life Care Nurshing Home) are directed to pay Rs. 5,00,000/- as compensations including the litigation cost to the complainant within 30 days from the date of this order, failing which the complainant is at liberty to execute the order as per CP Act,1986.
Let a plain copy of this order be furnished to the parties forthwith free of cost.
