30/04/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

            This Appeal is directed against the judgment and order passed by Learned District Forum, Bankura in case no.CC 18 of 2009 allowing the complaint ex parte and directing the OPs to pay compensation of Rs.2 lakh and litigation cost of Rs.500/- to the Complainant.

            The case of the Complainant/Respondent, in short, is that he was married with Smt. Malati Mondal 7 years ago.  But as she did not conceive she was taken to OP No.1 Bankura Sammilani Medical College & Hospital (B.S.M.C.H.) on 13/10/07 for treatment under unit 11A, ward Gynae and after investigation the Medical Officer, Gynae, OPD of the Hospital advised for USG of uterus and adenex test.  On 13/10/07 USG was done by Electro Therapeutic Department under the OPs concerned and the report was “Bilateral Flubrical Block” and the doctor advised HSG, that is, Hytere Salphingo Graphy.  On 13/11/07 the Complainant’s wife was admitted under unit (Down) Gynae & OBS for treatment as per advice of the OPs.  On 17/11/07 HSG was done and for that the doctor of the OP had administered injection – I.V. Fortwin & Atropin in right cubital fossa at upper extremity and after administering the aforesaid injection without any test, the Complainant’s wife felt uneasy and pain which increased gradually and, as a result, her right hand got swollen and the colour of the right hand became blackish and ultimately gangrene started.  The condition of the Complainant’s wife deteriorated and she was referred to SSKM Hospital, Kolkata on 23/11/07 and the OP issued discharge certificate.  On 24/11/07 the Complainant’s wife was admitted at SSKM Hospital where the doctor advised Anti Phospholipid Antibody, I.g.g. and I.g.m. and also Antineutrophil Cytoplasmic AB (ANCA) which was done privately.  The said test was done in private diagnostic centre in Kolkata and the Complainant paid Rs.3,250/-.  On 14/12/07 the doctors of SSKM Hospital amputated the right hand of the Complainant’s wife due to post injection gangrene and the patient was discharged on 12/01/08.  However, the Complainant’s wife continued her treatment at SSKM Hospital upto 02/04/08 from time to time for her pain in the amputation stump in right forearm and she again had to visit the Orthopaedic Department of the OP Hospital and was treated under Dr. R. N. Banerjee.  On 20/05/08 and 03/09/08 as projected bony spicules were found in the amputated hand, bone nibbling was done over stump of amputated right forearm under G.A.  Due to amputated right hand the Complainant’s wife could do nothing and she became fully dependent upon the Complainant.  The Complainant is a day labourer and as his wife could not perform her job in the family properly he had to face financial troubles.  The Complainant’s wife also used to work as day labourer and due to her amputated right hand she could not perform any job.  Due to the negligence of the doctors of the OP the Complainant’s wife had to face amputation.  On 20/05/09 the Complainant wrote a letter to the OP No.2 requesting the OP to inform the name of doctor under whom his wife was treated at OP Hospital.  No reply was given by the OP.  Under the circumstances, the complaint was filed before the Learned District Forum.

            The Learned Counsel for the Appellant has submitted that the Appellant Hospital issued discharge certificate and thereafter the patient was admitted in the SSKM Hospital, Kolkata.  It is contended that the patient was treated from time to time at SSKM Hospital and after release therefrom the patient again came to the OP Hospital for treatment.  It is contended that the right arm was amputated by the SSKM Hospital and there was no finding or observation of the SSKM Hospital that due to the treatment or administering injection at OP Hospital the gangrene started.  It is contended that the onus is upon the Complainant to prove the alleged negligence on the part of the Appellant. 

            The Learned Counsel for the Respondent has submitted that the OP did not contest the case before the Learned District Forum in spite of due service of notice and the evidence adduced by the Complainant stood uncontroverted.  It is contended that in the Memo of Appeal there was no pleading as to the facts and there was no denial in the Memo of Appeal about the treatment of the Complainant’s wife in the OP Hospital.  It is contended that because of administering injection without any test the gangrene started.  It is contended that the Complainant’s wife had to undergo amputation of her right hand and in this connection the expert evidence is not necessary.  The Learned Counsel for the Respondent has referred to the decisions reported in Current Consumer Cases 1996 (1) (SC) 208 (NS) [Paschim Banga Khet Mazdoor Samity & Ors. vs. State of West Bengal & Anr.]; AIR 1996 (SC) 550 [Indian Medical Association vs. V. P. Shantha & Ors.]; IV 2004 CPJ 40 (SC) [Smt. Savita Garg vs. The Director, National Heart Institute]; 2014 (3) CPR 180 (NC) [Master Abhishek Ahluwalia & Ors. vs. Dr. Sanjay Saluja]; 2013 (3) CPR 526 (NC) [Sun Flag Hospital Research Centre vs. Shri Raghubir Singh Poswal].

            We have heard the submission made by both sides and perused the papers on record.  What is most striking in this case is that the OPs of the complaint in spite of due service of notice did not contest the case and it appears from the impugned judgment that the OPs once had sent their Head Clerk only and thereafter no step was taken to contest the case and ultimately the District Forum had to dispose of the case ex parte.  As per the averments made in the Memo of Appeal it is an admitted fact that the Complainant’s wife was treated in the Appellant Hospital and she remained admitted from 14/11/07 to 23/11/07 in connection with the treatment of primary infertility and investigation.  It is also evident that the USG was done and HSG was advised and in continuation of her treatment the USG was done on 17/11/07 and the attending physician administered injection I.V. Fortwin & Atropin below the forearm.  It has been stated in the Memo of Appeal that the patient felt severe pain in the right arm and, subsequently, her right arm turned blackish and swollen and the condition of the patient further deteriorated and she was referred to the SSKM Hospital, Kolkata for improved treatment.  It has been stated in the Memo of Appeal that the patient was admitted in SSKM Hospital and different tests were done at private clinics and having no other alternative the Authorities of SSKM Hospital amputated the right hand due to the fact that gangrene had developed in the right forearm and the patient was discharged.  It is the contention of the Learned Counsel for the Appellant that there was no observation of the doctors of SSKM Hospital that administering injection was the cause of gangrene and in the absence of expert report the allegation of medical negligence or deficiency in service cannot be said to have been proved. 

            It is evident from the materials on record that the Complainant had to bear the expenses of different tests and he hired the services of the OP doctor for consideration and, as such, the Complainant is a consumer within the meaning of section 2(1)(d)(ii) of the C. P. Act, 1986.

            We have gone through the papers relating to the treatment done at Appellant/OP Hospital and also in the SSKM Hospital, Kolkata.  From the papers issued by the SSKM Hospital it appears from the advice dated 30/01/08 that it was a case of post injection gangrene and ultimately the right hand had to be amputated.  The Complainant wrote a letter to the Superintendent of the OP Hospital on 20/05/09 whereby the Complainant requested the OP Hospital to disclose the name of the doctor under whom the Complainant’s wife was treated when she remained admitted in the said Hospital.  The Hospital received that letter, but no reply appears to have been given by the OPs to the Complainant.  The refusal to disclose the name of the doctor is also deficiency in service on the part of the OPs.  From the materials on record it is clear that due to administering the I.V. Fortwin & Atropin injection the trouble started which the OPs failed to manage and referred the patient to the SSKM Hospital, Kolkata.  The doctrine of res ipsa loquitur, under the circumstances of the case, is squarely applicable.  With the abstinence of the Appellants/OPs from contesting the case the allegation of the Complainant remains uncontroverted.  The Learned District Forum was justified in passing the impugned judgment and order and there is no ground to interfere with the findings of the Learned District Forum.

            The Appeal is dismissed with cost of Rs.10,000/- to be paid by the Appellants to the Respondent/Complainant.  The impugned judgment is affirmed.