West Bengal

Paschim Midnapore

CC/06/2013

Manowara Begam - Complainant(s)

Versus

The Director, Midnapore Scan Centre Pvt.Ltd. - Opp.Party(s)

09 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President,

&

Mrs. Debi Sengupta, Member

                                      

Complaint Case No.06/2013

                                                       

1. Sk. Sayad Ali, S/o Sk. Rajab Ali,
2. Minor Minnajul Islam,
3. Minor Misbshool Islam, Sons of Sk Sayed Ali, Vill. & P.O. Maligram,

P.S. Pingla, Dist- Paschim Medinipur……...………….Complainants.                                                                                                                     

Versus

 

               The Director, Medinipur Scan Centre Pvt. Ltd., at Keranitola, P.O Medinipur,

               District- Paschim Medinipur, PIN-721101….………...........…..Opp. Party.

 

              For the Complainant: Mr.  Swapan Bhattacherjee, Advocate.

              For the O.P.               : Mr. Kshitish Palmal, Advocate.

 

Decided on: - 09/08/2016

                               

ORDER

                          Bibekananda Pramanik, President – Facts of the case, in brief, is that

            initially the petition of complaint was filed by one Manowara Begum alies Bibi alies Khatoon against  the  Opposite party-Director of Medinipur Scan Centre and on her death, her legal heirs i.e. the present complainant  have been substituted.

                                     Briefly stated, the facts made out in the petition of complaint is that due to her some problem of stomach, Manowara Begum, since deceased, got herself medical examined by Dr. J. Kar in his chamber at Medinipur on 20/2/2011 and the said doctor prescribed her medicine and asked Manowara Begum to come to his chamber after one month for check up.  As per advice of Dr. J. Kar, Manowara Begum took such medicines for

Contd…………………..P/2

 

 

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            one month but her problem  gradually increased and as such she  again got herself treated by Dr. J. Kar on 20/3/2011 and after hearing about her problems, Dr. J. Kar advised some clinical test.  She therefore went to Medinipur Scan Centre i.e. the opposite party for her clinical test on 5/6/2011 and after receiving fees, such tests were done by the opposite party on 5/6/2011. Opposite party delivered the report of Upper Gi Endoscopes on the same day and the report of Endoscopes Biopsy on 16/6/2011.  After going through those reports dated 5/6/2011 and 16/6/2011, Manowara Begum since deceased came to know that an ulcer was noted but there was no evidence of malignancy. After going through those reports Dr. J. Kar started her treatment and prescribed several medicines for long time but her problem was not cured.  Thereafter Manowara Begum changed her doctor and visited the chamber of  Dr. Ashfaque  Ahmed at Tamluk.  As per advised of Dr. A. Ahmed, Manowara Begum again tested her stomach by way of Upper Gi Endoscope on 21/8/2011 by the opposite party and she came to know that there was no erosion, ulcer or tumor.  As per report of the opposite party Dr. A. Ahmed started her treatment but the complainant was not cured and her condition was gradually deteriorated.  Finding no other alternative, Manowara Begum went to Manipal Hospital at Bangalore, where she was medically examined and diagnosed that large ulceration in the lesser curvature extending upto incisures angularis.   Thereafter Manowara Begum went to Tata Memorial Hospital at Bombay on 15/11/2011 for her treatment and she was further clinicaly examined by the doctors of Tata Memorial Hospital and her Biopsy report confirmed moderately differentiated adenocarcinoma.   Doctors of Tata Memorial Hospital started chemo therapy till  23/2/2012 in the said hospital.  For such treatment, Manowara Begum had incurred a sum of Rs. 7,00,000/-.  It is stated in the petition of complaint that all test reports dated 5/6/2011, 16/6/2011 and 21/8/2011 done by the opposite party are wrong and contradictory and they have done all such clinical tests negligently and due to their wrong reports Manowara Begum did not get proper treatment from her local doctors who treated her  on basis of such wrong reports submitted by the opposite party.  If the reports of the opposite party were correct then Manowara Begum would get proper treatment and her physical condition might not be so grievous and could save her life from deadly diseases like cancer and as such the opposite party is fully responsible and liable to pay compensation to the complainant for negligence, deficiency in service, mental pain and agonies.  Manowara Begum thereafter issued notice to the opposite party through her Advocate Mr. U.S. Bera for compensation but in spite of that opposite party did not pay any heed to the letter of the complainant. On the other hand, the opposite party issued a notice through his advocate denying all the allegations and threatening to take

Contd…………………..P/3

 

 

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             legal action against her.  Hence the complaint, praying for an award of Rs.10,000,00/- for negligence and deficiency in service an award of Rs.2,00,000/- as compensation an award of Rs.10,000/- as litigation cost

                                Opposite party has contested this case by filing a written objection.

                                 Denying and disputing the case of the complainant, it is the specific case of the opposite party that the present complaint is not maintainable due to non-joinder of necessary parties, that the complainant is not a consumer under the provision of C.P. Act and that the allegation  made in the petition of complaint are vague, baseless, improper and speculative.  It is stated by the opposite party that as referred Dr. J. Kar,  Gi Endoscopy of Manowara Begum, a female of 36 years old, was done on 5/6/2011 and 21/8/2011. Subsequently Manawara Begum went to Manipal Hospital and Gi Endoscopy of one Manowara Begum aged 31 years old was done on 21/10/2011 and they have also came to the findings regarding indication of dyspepsia and upper G.I.  findings – ulcer over posterior wall of body of stomach and on receipt of Biopsy report it was found malignancy.  It is stated that there were three upper Gi Endoscopy reports wherefrom it is revealed that the report dated 5/6/2011 of the opposite party corroborates the report dated 21/10/2011 of Manipal Hospital.  It is also stated that it is to be decided whether both the patients are same or not and secondly the indication was same finding.  It is further stated that the patient was all along under the treatment of doctor and she took medicines and as a result of that the  report can be varied and the findings can be changed and the difference between the two Endoscopy was more than two months gap and therefore  change of report of the patient can be different.  It is further contended by the opposite party that he had no negligence for such pathological test. Opposite party therefore claims dismissal of the complaint with cost.   

 

    Point for decision

1. Is the case maintainable in it’s present form and prayer ?
2. Is the case bad for defects of necessary parties ?
3. Was there any medical negligence on the part of the opposite party ?
4. Are the complainants entitled to get the reliefs, as sought for ?                        

                                                            Decision with reasons

                          For the sake of convenience and brevity, all the above points are taken up together   for consideration.

                         In order to prove their case, the complainants have examined Sk. Syed Ali, substituted complainant no.1 as PW-1, one Dr. Jugal Kishore Kar as PW-2 and another

Contd…………………..P/4

 

( 4 )

     doctor (Professor) Rabindra Nath Laha  as PW-3.  During the evidence of PW-1, some documents were marked as exhibit -1 series for identification.  During the evidence of PW-2 Dr. Jugal Kishore Kar, one document has been marked as exhibit-2 and during the evidence of PW-3, his signature on exhibit-2 has been marked as exhibit-2/1.  On the other hand, opposite party adduced no evidence.

                       At the very outset, it is to be stated here that initially the petition of complaint was filed by Manowara Begum alies Bibi alies Khatoon and after her death, the present complainants being the legal representatives of said Manowara Begum have been substituted as complainant no.1 (a), 1(b) and 1(c) respectively. 

                      It is not denied and disputed that as per advice of Dr. Jugal Kishore Kar some clinical test of Manowara Begum was done in the Scan Center of the opposite party on 5/6/2011 and 16/6/2011.  It is not also denied and disputed that subsequently as per advice of Dr. Ashfaque Ahmed, upper Gi Endoscopy of the stomach of Manowara Begum was done by the opposite party on 21/8/2011.  It is the case of the complainant that after going through those reports dated 5/6/2011 and 16/6/2011, Manowara Begum came to know that an ulcer was noted but there was no evidence of malignancy and her treatment was accordingly done by Dr. Jugal Kishore Kar. Since there was no improvement after such treatment so Manowara Begum got herself treated by Dr. A. Ahmed and as per his advice, she got her upper Gi Endoscopy of stomach  done by opposite party on 21/8/2011 and she came to know that there was no erosion, ulcer or tumor.  Dr. A. Ahmed started her treatment but Manowara Begum was not recovered from her such illness for which she went to Manipal Hospital at Bangalore and after examining her, the  doctors of Manipal Hospital diagnosised that there was large ulceration in the lesser curvature extending up to incisures angularis.  Malignancy was found and they impressed poorly differentiated Adenocarcinoma vide report dated 22/10/2011. Manowara Begum was thereafter taken to Tata Memorial Hospital, Bombay on 15/11/2011 and there treatment with neo adjuvant chemo therapy was done and the complainant incurred a sum of Rs.7,00,000/- for her treatment.  According to the complainant, all those testing reports dated 5/6/2011, 16/6/2011 and 21/8/2011 done by the opposite party are wrong and contradictory and the consultant Gastroenterologists  of the opposite party did not execute their work in the proper way and in scientific manner.  It is further alleged by the complainant that the opposite party did all such clinical examination of the complainant negligently and due to such wrong reports the complainant did not get proper treatment from her local doctor.  If those reports were correct then the Manowara Begum would get proper treatment and her physical condition might not be so grievous and she could save her life from deadly diseases like cancer.

Contd…………………..P/5

 

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                       At the very outset we find that the complainant has  made the Director of the opposite party-Scan Center as opposite party in this case but none of the doctors who did such test in the scan center of the opposite party has been made a party in this case,  although they were very much necessary party in this case in as much as it is alleged that all such tests were done by those doctors of the opposite parties-scan center.  We are therefore of the view that the present case is bad for non-joinder of necessary parties. 

                       Regarding the alleged medical negligence, the complainants have examined two doctors apart from producing all those tests reports.  Out of those two doctors, Dr. Jugal Kishore Kar has stated in his cross-examination that he has no knowledge as to how the medical board arrived at such decision as disclosed in the medical report (exhibit-2) of the medical board.  From this Exhibit-2, we find that the medical board of Medinipur Medical College and Hospital observed that a benign gastric ulcer may turn into a malignant ulcer in due course of time, specially in presence of intestinal metaplasia.  The medical board, as we find from the said report (exhibit-1), did not give any opinion that there was any negligence on the part of the opposite party-scan center in doing such clinical test of Manowara Begum.  Another doctor i.e. PW-3 who was one of the members of the said Medical Board in his cross-examination has stated that it is not possible for them to say as to whether there was any medical negligence in pathological test done by the opposite party-Scan Center.  Complainants examined no other expert doctor to say and to prove that all such pathological test were done in negligent manner by the opposite party-Scan Center.  Complainants have also not examined any doctor of either of Manipal Hospital or of Tata Memorial Hospital to say and to prove that those pathological tests done by Midnapur Scan Centre are wrong and that all such tests were done in negligent manner.  It is therefore held that the complainants have failed to prove by adducing cogent and reliable evidence that those pathological test done by the opposite party-Scan Centre are wrong and those were done in the negligent manner.  It is therefore held that the complainants have failed to prove their case of medical negligence against the opposite party-scan centre and the petition of complaint is therefore liable to be rejected.

                                                    Hence, it is,

                                                                          Ordered,

                                      that the complaint case no.06/2013 is hereby dismissed on contest but in the circumstances without cost.                                                                               

                               Let plain copy of this order be given to the parties free of cost.

             Dictated and Corrected by me

                     Sd/-B. Pramanik.                    Sd/- D. Sengupta.                     Sd/-B. Pramanik. 

                              President                                  Member                                    President

                                                                                                                            District Forum

                                                                                                                         Paschim Medinipur