DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 637/2015
Date of Filing: Date of Admission: Date of Disposal:
04.11.2015 18.11.2015 17.10.2017
Complainant:- Nemai Chandra Ghosh, S/o Late Gangadhar Ghosh,
Village- Kirnahar, P.O.-Kirnahar, P.S.- Nanoor,
District-Birbhum, Pin-731 302.
Vs.
Opposite Parties:- 1) The Chairman, West Bengal Medical Council,
IB-196, Sector-III, Salt Lake, Kolkata-700 106.
2) The Director of Health Services,
Government of West Bengal, Swasthya Bhavan,
Salt Lake City, Kolkata-700 091.
3) Dr. J.K. Shah, Advanced Laparoscopic Surgeon,
Anandalok Hospital, DK-7/3, Salt Lake,
Karunamoyee, Kolkata-700 091.
4) Anandalok Hospital, DK-7/3, Salt Lake, Karunamoyee,
Kolkata-700 091.
5) Dr. Goutam Das, Consultant Gastroenterologist,
Attached to Anandalok Cardiac Centre, DK-7/3,
Salt Lake,Karunamoyee, Kolkata-700 091.
6) Dr. Pradeep Kumar Sethy,
Senior Consultant & Head of Gastroenterologist,
Attached to Medica Superspeciality Hospital
Private Limited, 127, Mukundapur, E.M. By Pass,
Kolkata-700 099.
P R E S E N T :- Sri. Bankim Chandra Chattopadhyay…………President.
:- Sri. Siddharta Ganguli ….………………………Member.
:- Smt. Silpi Majumder………………………………Member.
ORDER: 17
This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging medical negligence as well as deficiency in service against the OPs no-3-6 as the OPs did not provide approved and standard medical treatment to him for whom he had to suffer for a prolonged period.
The brief fact of the case of the Complainant is that the OPs no-3-6 have failed to provide proper treatment to him in respect of surgical intervention of the abdomen. The Complainant was suffering from pain in his upper abdomen along with other related ailments. After having consult with the local physicians and using medicines for a quite considerable period, he contacted Dr.Tapas Ghosh being the Consultant Surgeon attached to Bolpur S.D. Hospital, Birbhum and remained under his treatment for some time. The Complainant was advised to go to Kolkata for better treatment and management. On 11.04.2013 the Complainant contacted with the Medical Hospital being an outpatient, where he was examined by Dr. Pradeepta Kumar Sethy , being the senior consultant and Head of the Department of Gastroenterology. On 13.04.2014 it was apparently diagnosed as ‘Cholangitis’. The Complainant went to Anandalok Cardiac Centre, where he got admission on 14.04.2013. Stone Extraction was done therein by the OP-5 and got discharge on 17.04.2013 in stable condition with the diagnosis as ‘Large LBD Stone with Cholangitis’. At the said Hospital several tests were done i.e. serum electrolytes, USG of whole abdomen, MRCP etc under the OP-3. On 17.04.2013 the Complainant got admission in the department of Minimal Invasive Surgery under the OP-3 and was operated upon on 19.04.2013 and got discharge on 25.04.2013.From the report of ERCP test prepared and signed by the OP-5 dated 15.04.2013 reveals ‘Large CBD Stone with Cholangitis-Stone Eradication Done’. Another report issued by the OP-5 dated 22.04.2013 is revealed ‘MIRRIZZI’S SYNDROME WITH BILIARY LEAK-STENTING DONE’. Another report dated 21.06.2013 issued by the OP-5 showed ‘MIRRIZI’S SYNDROME DUE TO CYSTIC DUCT STONE’. Being advised by the Consultant Dr. Pradeepta Kumar Setty the Complainant went to the Medical Hospital for MRCP test. On 01.07.2013 the report was prepared and signed by Dr. Hirak Ray Choudhury, which showed ‘Dialated Cystic Dust Remnant with Calculi’. Thereafter the Complainant was taken to the Division of Surgical Gastroenterology, School of Digestive Diseases and Liver Diseases, Institute of Post Graduate Medical Education & Research. The statement of the discharge summary was issued to him containing the following particulars inter alia-
- His Consultant was Dr. Sumit Sanyal.
- The respective dates were- DOA on 25.11.2013, DOO on 28.11.2013 and DOD on 05.12.2013.
- The diagnosis was ‘Choledocholithiasis, status-laparoscopic cholecystectomy, status-ERCP stenting’.
- The history of present illness ‘presented with recurrent episodes of upper abdominal pain and jaundice with fever for seven months. Sysptoms did not improve following laparoscopic chelecystectomy. No anorexia/weight loss/G1 bleeding. Investigations revealed cystic duct stump stone. Admitted for surgical management.’
- The operative procedure
28.11.2013: Cheledocholithotomy.
28.11.2013: Choledochojejunostomy.
vi) Hospital Course:
(Post Operation), liquids started from day 2. Normal diet from day 2, drain removed on POD 3, developed wound collection, managed by regular change of dressing, discharged in a stable condition with clips in place with advice for removal during follow up.
The Complainant has stated that during the period from 17.04.2013 to 21.06.2013 at Anandalok Hospital he had to bear entire medical expenses to the tune of Rs.78,950/-, again at the SSKM Hospital he had to bear the cost of his medical treatment for Rs.17,889/-. It is stated by the Complainant that due to several surgical interventions he became crippled physically. Now he is not in a position to do any job for earning his livelihood but apart from himself he has his wife, two daughters. According to the Complainant for his sufferings, loss, injury and damages mainly Dr. J. K. Shah is responsible, but there is collusion by and between the OP-3-6, which will be transpired from the documents. Due to medical negligence on the part of the OP-3-6 now the Complainant is passing his days with mental agony, despair and pain at his 49 years of age. Being compelled the Complainant issued two representations on 02.02.2015 upon the OP-1 and 2 respectively, in response the Section Officer of the WBMC wrote a letter to the Complainant dated 19.03.2015 intimating that there is no provision for passing any award of compensation as per the Medical Council Act, 1914. As his grievance have not been redressed by the OPs, hence having no alternative he has approached before this ld. Forum by filing this complaint praying for direction upon the OPs-3-6 to pay a sum of Rs.10,00,000/- either jointly or severally and if necessary proportionately for their negligence and carelessness in providing treatment to him along with compensation due to mental agony, pain and harassment and litigation cost to him.
The petition of complaint is contested by the OP-3 by filing written version contending that the Complainant visited this OP at his OPD on 17.04.2013 with upper abdominal pain associated with vomiting and vertigo. The USG report brought by him showed cholelithiasis along with a history of ERCP done by the OP-5 on 15.04.2013. The impression was large CBD stone with cholangitis stone extraction done as there was cholangitis. The Complainant was treated conservatively and after proper evaluation by Dr. A.Bagchi, Anesthetist and Dr.D.K. Sen, Cardiologist the OPs put the case on 19.04.2013 under G.A. and retrograde laparoscopic cholecystectomy was done and the OP report reveals that there was very dense adhesion, presented duodenum/colon/omentum were cemented to gall bladder, very friable liver, Mirrizi’s syndrome present dilated/tortutous CBD adhered to GB wall, retrograded cholecystectomy done 28 ADK kept at HRPM GB sends for Histopathology examination.. During post-operative period there was slight abdominal distension occur. There was bilious collection of 220 ml in abdominal drain. On 20.04.2013 the OP did the basic investigations like HB percentage, TD, DC, ESR, Platelets, Urea, Creatinine, Sodium-Potassium and blood culture. As there was a bilious collection and increase in WBC count the OP referred the Complainant to the OP-5 for evaluation. On 22.04.2013 the OP-5 did the ERCP and impression was Mirrizzi’s Syndrome with Biliary Leak stunting done. But there was no cystic duct and any residue stone in cystic duct and CBD as stated in ERCP report. So the OP-3 provided conservative management and the condition of the patient began to improve. The patient party requested this OP to discharge the patient on 25.04.2013, so as the patient was haemodynamically stable, abdomen soft, stool passed, IPS present and blood parameter was in normal range the Complainant was discharged on 25.04.2013 in stable condition. It is stated by the Complainant that on 21.06.2013 the OP-5 did ERCP and the impression was Mirrizi’s Syndrome due to cystic duct store restarning done. After that ERCP the Complainant did not visit this OP and no intimation was given about the result of the third ERCP. At the time of discharge the patient was physically stable and no cystic duct stone present as shown in ERCP dated 22.04.2013. In view of the abovementioned fact the OP-3 has stated that there was no deficiency in service as well as negligence on his part in providing medical treatment to the Complainant and hence he is not at all liable to pay any farthing towards compensation as sought for. According to the OP-3 that treatment was provided by him as per the standard medical science and practice. Prayer is made by the OP-3 for dismissal of the complaint with cost.
The petition of complaint has been contested by the OP-4 by filing written version denying the entire allegations as made out against this OP. The OP-4 has contended that having healthy infrastructure it is used to render services administrative in nature and none of its staff and/or officers possess any skill/knowledge of medical intricacies/ implications/technicalities and simply carries on instructions/advice given by the doctors attached to it. The OP-4 used to provide a support/suitable infrastructure for execution of such instructions. The staff or officers of this OP have ever diagnosed a patient. After diagnosed by a doctor the next procedure is based solely on his own judgment and if the patient is suggested any test by the doctor then the patient of his free will decides to get such tests from this OP or from outside. The OP-4 only provides the infrastructure for carrying on such tests and informing the result to the patient and in some cases to his doctor. It is used to provide staff for collection of body fluid sample from the patient, provide the machines for analysis of the body fluid and give the test result to the patient after analysis through its in house pathologists. The Complainant has not made out any allegation in the petition of complaint that there was any inadequacy and/or defect and/or shortcoming in the services and support provided by this OP in course of his treatment under the OP-3 and 5. No allegation has also been made by the Complainant for adoption of any unfair trade practice by this OP. The duty of this OP is to provide staffs, health care persons for looking after the patient, providing the OT, equipments, machineries, ancillary supports, OT consumables, paramedical staff and attached pharmacy for supply of medicines. The nature and type of the operation performed on the Complainant, pre-operative tests, manner and extent of post operative care and medicines etc are all prescribed by the concerned doctor under whom the patient is admitted and treated. The OP-4 has stated that though the prescription of the OP-3 & 5 bears the name of this OP, but the same is only for the purpose of making the patient aware that the said doctor is attached with this OP for limited purpose i.e. to sit and see the patients in a chamber. This OP has no connection with the diagnosis and advice of the treating doctor and the content of the prescription. So this OP cannot be held liable as deficient and negligent in providing service to the Complainant and it has also no vicariously liability also for any wrong doing of the OP-3 and 5. The doctors are practising at the OP-4 independently taking only the help of its infrastructure. Therefore the Complainant is under the obligation to prove negligent service of this OP by producing documentary evidence. Admittedly the Complainant paid consideration amount to this OP only for the services rendered by this OP, but no money receipts is filed by him and discharge certificate was also issued by this OP as per the advice of the treating doctors. It is not the case of the complainant that inspite of taking money for OT charges, such facility was not provided to him and there was deficiency in service in providing such facility. The OP-4 cannot be held liable in any manner for non-conducting of any pathological tests or supply of medicines to the Complainant since it was the sole prerogative of the OP-3 and 5 to suggest such medical tests. It is pertinent to mention here that all pathological test and other test reports are not annexed with the petition of complaint except one ERCP report done by the OP-6 at Medica Hospital. The OP-4 has mentioned that if it is assumed for the sake of argument that there is deficiency, negligence on the part of this OP, this Ld. Forum cannot pass an order in favour of the Complainant in respect of this OP as in the petition of complaint no such whisper has been made out by the Complainant alleging deficient, negligent service on behalf of this OP. This OP has been made a party to this proceeding with ulterior motive and to grab some money from this OP through an illegal manner. As the Complainant has intentionally harassed this OP, hence prayer is made by this OP to dismiss the complaint with exemplary cost.
The petition of complaint has been contested by the OP-5 by filing written version stating that being a consultant gastroenterologist the patient was referred to him by Anandalok Hospital. ERCP was done on 15.04.2013. This OP did further did the ERCP under GA on 22.04.2013. Further ERCP was done on 21.06.2013. This OP did nothing towards the treatment of the patient save and except ERCP as mentioned above and the same was done as per the instruction of the treating doctor/hospital and the test was done with due care and skill adopting accepted procedure. For this reason there was nothing wrong on his part. Considering the fact and circumstances of this complaint this OP should not be a party in this proceeding. Though this OP is not liable for the matter as made out in the complaint and unnecessary allegations has been made against this OP. Hence the name of this OP should be expunged from the cause title of the complaint. Practically the Complainant has miserably failed to raise any specific allegation against this OP in respect of providing treatment to him or to provide the correct report whatever it may be, so this OP has denied all the allegations as made out by the Complainant. Moreover nothing was done on the part of this OP in collusion with any other OP or OPs. According to the OP-5 the Complainant is not entitled to get any amount as compensation as prayed for. Prayer is made by this OP for dismissal of the complaint with cost.
The petition of complaint has been contested by the OP-6 by filing written version contending that the Complainant visited at OPD of Medica Hospital on 13.04.2013 with abdominal pain and jaundice. The USG report of abdomen was carried by the Complainant done from the outside, which showed that he had gall stone and bile duct stone. The OP-6 advised for admission for ERCP to remove bile duct stone along with blood test including INR, serology, CXR, PA and ECG. But the patient did not get admission as well as followed the advice of him. Several procedures/surgeries were done from the outside. The patient came with the same complaint again to him for knowing the cause of his illness. MRCP report done on 01.07.2013 showed ‘dilated cystic duct remnant with calculi’. According to this OP he is not involved with any procedure including ERCP or surgeries, rather gave his expert opinion to the patient only. The OP has denied that the Complainant is entitled to get compensation to the tune of Rs.10,00,000/- by way of redressal of his grievance. It is stated by the OP-6 that inspite of having no deficiency in service as well as negligence on his part in providing treatment and giving any advice, the Complainant has made him a party to this proceeding unnecessarily with a view to harass him and grab some money through an illegal manner.
The OP-4, 5, 6 have adduced evidence on affidavit. The Complainant did not adduce any evidence. At the time of filing the complaint some medical documents was filed by him. Though the Complainant did not adduce any evidence, but the OP-6 has filed questionnaire and the Complainant has filed replies to the questionnaire on affidavit.
At the very outset we are to adjudicate as to whether the Complainant is a consumer or not. In this respect we are to say that the OPs who have filed their respective written versions, nowhere it is stated that the Complainant cannot be termed as consumer and/or the OPs have provided treatment completely free of cost. The record shows that the Complainant was treated at the Anandalok Hospital under several doctors, several pathological tests were done, the Complainant had to undergone surgery and he was also treated by the doctor of Medica Hospital. Admittedly the Complainant had to bear entire expenses for his medical treatment, so it can be safely said that the Complainant is a consumer. But it is also true that he is not a consumer of the OP-1 and 2, and it is pertinent to mention for proper adjudication of this complaint the OP-1 and 2 have been made parties to this proceeding, otherwise this complaint may be suffered from non-joinder of necessary parties. To avoid such complication and for abundant precaution the Complainant has made the OP-1 and 2 as parties.
Now we are to see as to whether the complaint is maintainable before this Ld. Forum or not. From the petition of complaint it is revealed that the Complainant was treated at Anadalok Hospital, Salt Lake, whose address lies within the territorial jurisdiction of this Ld. Forum. In respect of pecuniary jurisdiction we are to say that the Complainant has sought for compensation to the tune of Rs.10,00,000/-. Though the Complainant has filed two documents written by him showing the cost of his treatment, but the Complainant did not filed the money receipts issued by the service providers to him in respect of providing treatment. From the said hand written documents it is seen by us that the Complainant had incur expenses to the Rs. 95,00,000/- towards his medical treatment. As the cost of the treatment and the compensation as sought for, has not been exceeded the pecuniary jurisdiction of this Ld. Forum, hence the complaint is very well maintainable before this Ld. Forum from the point of its pecuniary jurisdiction.
It is evident from the record that as the Complainant was absent without taking any steps on 05.08.2016, again on 07.09.2016 he remained absent, so he was directed to show cause on the next date i.e. 27.10.2016. The record does not reveal that on 27.10.2016 the Complainant was present, on 09.12.2016 though the Complainant was present but he failed to comply with the order no-10 dated 07.09.2106 through which he was directed to show cause, so the Ld. Advocate prayed time for compliance and next date was fixed on 31.01.2017 for showing cause as a last chance. But the Complainant was not present on the said date along with subsequent dates i.e. 30.03.2017, 12.06.2017 and 21.09.2017. On 21.09.2017 the OPs were present through their respect Ld. Advocates who prayed for dismissal of the compliant for default. But as it is found by us that the evidences of the OP-3-6 are on record, hence we were not inclined to dismiss the complaint for default. Not only that the Complainant has been cross-examined by the OP-6 by way of questionnaire and the Complainant replied the same on affidavit. But at the time of writing final order/judgment we have noticed that the Complainant has failed to adduce any evidence on affidavit.
Inspite of this we are inclined to dispose of this complaint on merit. So we are to see as to whether there is any medical negligence as well deficiency in service on behalf of the OPs or not. In respect of the OP-1 and 2 it can be said that no allegation has been made against those OPs in the petition of complaint, rather it is stated by the Complainant that due to avoid of the defect of the non-joinder of necessary party, the OP-1 and 2 have been made parties in this proceedings. The Complainant did not seek any redressal/compensation from the OP-1 and 2. Therefore this complaint does not stand against the OP-1 and 2.
In respect of the other OPs we are of the opinion that though the Complainant has mentioned in the petition of complaint that the medical treatment provided by the OP-3-6 suffer from medical negligence, but to prove such negligence and/or deficient service of the OPs, no corroborative evidence/documentary evidence is adduced by the Complainant. By making oral or written allegation against the service providers, the negligence or deficiency cannot be prove, rather to prove the deficiency or medical negligence on behalf of the medical persons or institutions, cogent evidence is necessary. It is seen by us that in the instant complaint the Complainant did not make any application calling for an expert opinion. It is true that in the medical negligence case expert opinion is not mandatory and the opinion of an expert is advisory in nature, but to prove medical negligence there should some evidence on behalf of the Complainant from where it will be possible for the court for coming to a conclusive conclusion. But in the case in hand nothing is there from where we can draw the conclusion to the effect that the medical treatment extended by the OP-3-6 suffer from medical negligence as well as deficiency in service or the said OPs provided wrong treatment for which the Complainant had to suffer for a prolonged period physically along with financially. In the reply to the questionnaire of the OP-6 the Complainant has replied regarding question no-16 that he cannot say specifically what negligence was done by the OP-6. He cannot file any such document in support of the negligence on his part. In the reply to the question no-15 it is stated that he cannot prove it directly that wrong treatment was done to him by the OP-6. Therefore the Complainant has failed to prove the allegations as levelled against the OP-3-6 by producing convincing documentary evidence.
In this respect we may mention to the landmark judgment i.e. Jacob Mathew vs. State of Punjab & Another (2005) 6 SCC 1, a three Judges Bench of the Hon’ble Supreme Court discussed the law of negligence under Tort Law, in extenso. It has been observed that negligence becomes actionable on account of injury resulting from the act of omission amounting to negligence attributable to the person sued. It was held in the paragraph no-11 that essential components of negligence, as recognized, are three- ‘duty’, ‘breach’ and ‘resulting damage’, that is to say:-
“(1) the existence of a duty to take care, which is owed by the defendant to the complainant;
(2) the failure to attain that standard care, prescribed by the law, thereby committing a breach of such duty; and
(3) damage, which is both casually connected with such breach and recognized by the law, has been suffered by the Complainant.
If the claimant satisfies the court on the evidence that these ingredients are made out, the defendant should be held liable in negligence.”
In the instant complaint the Complainant cannot successfully satisfied us on evidence that the abovementioned ingredients are present because during the period of his stay/ treatment by the OP-3-6 wrong treatment were given by the said OPs or the treatment provided by the abovementioned OPs suffer from medical negligence and/or deficiency in service. The medical documents filed by the Complainant show that the OP-3-6 extended their treatment with due care and caution. Therefore as the Complainant fails to prove the allegations as made out against the OP-3-6 the complaint does not succeed.
Going by the foregoing discussion hence it is ordered that the complaint is dismissed exparte against the OP-1 and 2 without any cost and dismissed on contest against the OP-3-6 without any cost.
Let plain copy of this order be given to the parties free of cost in view of the CPR, 2005.
Member Member President
Dictated and corrected by me:s
