Date of filing: 30.8.2013                                                                Date of disposal:  15.5.2017

Complainant:               Sk. Jaidur Hossain, S/o. Late Sk. Abdul Manan, Parbirhata, Sankharipukur Housing, flat No. R/14, PS. & Dist: Burdwan.

-V E R S U S-

Opposite Party:    1.     The Officer-in-Charge, The Mission Hospital, Plot No. 219 (p), Immon Kalyan Sarani, Sector 2C, Bidhannagar, Durgapur – 713 212.

                              2.   Dr. Ashoke Kr. Parida, C/o. The Mission Hospital, Plot No. 219 (p), Immon Kalyan Sarani, Sector 2C, Bidhannagar, Durgapur – 713 212.

3.      The Officer-in-Charge, India Medtronicnic Pvt. Ltd., 1214, Solitaire Corporate Park, Andheri (E), Mumbai – 93.(Expunged vide Order No. 08, Dated: 20.02.2014)

4.      The Officer-in-Charge, RTIICS, Narayana Hrudayalaya Hospitals, 124, Mukundapur, E.M.Bye-pass, Kol – 99.

5.      Dr. B. Bhattacharya, C/o. RTIICS, Narayana Hrudayalaya Hospitals, 124, Mukundapur, E.M.Bye-pass, Kol – 99.

Present:      Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:              Ld. Advocate,  Tamal De.

Appeared for the Opposite Party 1&2:  Ld. Advocate, Subrata Ghosh.

Appeared for the Opposite Party 4&5:  Ld. Advocate, Sumit Roy & Arnab Dey.

J U D G E M E N T

This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OP-1, 2 & 3 as the OP-1 had purchased below quality stent from the OP-3 which was implanted by the OP-2 in the artery of the Complainant at the OP-1 and the OP-3 sold a below quality stent to the OP-1.

By filing this complaint the complainant has prayed for refund of the amount from the OP-1 as paid by him towards the cost of the stent to the tune of Rs.2,18,400=00.

         The brief fact of the case of the Complainant is that he was suffering from chest pain and for this reason he visited the OP-1 for treatment and got admission in the Cardiology Department of the OP-1 under the OP-2 on 01.10.2012 at about 12.15 am. The treating doctor prescribed some clinical tests and advised some medicines for immediate relief. The authority of the OP-1 directed the relatives of the Complainant to deposit Rs.3,00,000=00 for medical expenditure of the Complainant to be cured from the double vessel disease of the heart and for this reason two stents were required to be implanted by way of an operation for removing clotting. The relatives of the Complainant accordingly deposited some amount towards advance for the purpose of medical expenditure, surgery was done on 02.10.2012. Two stents were implanted namely, RAMMUS-ENDEAVOR SPRINT 3.0 X 3 mm and ENDEAVOR SPRINT 2.75 X24 mm purchased from the OP-3 by the OP-1 and the cost of two stents were for Rs.2,18,400=00. The Complainant got discharge from OP-1 on 05.10.2012 after making payment of Rs.3,06,540=00 as medical expenditure including the cost of the stents. Thereafter the Complainant used to go at the OP-1 regularly for checking as per advice of the OP-2, but his chest pain was not cured. The Complainant lastly visited the OP-2 at the OP-1 on 14.05.2013. During checking the OP-2 told him that the patient should be admitted further at the OP-1 as the stents deployed earlier became blocked by 95% of LAD and 40% of RI stent as the deployed stents were not functioning properly and for this reason the Complainant may be undergone by-pass surgery to be cured properly. The OP-1 charged a sum of Rs.13,200=00 towards the cost for check up for last two days and the same was paid by the Complainant though he was still suffering from the chest pain. As the pain was not subsided inspite of incurring huge amount, hence the Complainant decided to approach before the OP-5 at OP-4. The Complainant was advised by the OP-5 for admission at the OP-4 and accordingly he got admission therein on 06.06.2013 under the OP-5. Some clinical tests and investigations were prescribed by the OP-5 and it was stated by the OP-5 that the first operation was totally failure due to negligent and deficient deployment of the stent. The OP-5 had provided an estimated cost for Rs.2,00,000=00 for PTCA with stenting to LAD, RI and Diagonal. Stent was implanted by the OP-5 being 3.0 mm X 38 mm ENDEAVOR RESOLUTE on 08.06.2013 at the OP-4 and the Complainant got discharge from the OP-4 on 10.06.2013 in a stable condition without any problem and the  Complainant could not feel any discomfort after the said implantation. According to the Complainant the OP-1 had charged a higher price than the actual price of the implanted low quality stent and the OP-2 had negligently deployed the below quality stent and as a result of which the Complainant had to suffer from mental and physical agony for a quite considerable period and therefore the Complainant took the decision to approach before this Ld. Forum against the OP-1, 2 & 3 due to negligent and deficient act towards the Complainant at the time of treatment. By filing this complaint the Complainant has prayed for direction upon the OP-1 to return the cost of the stent as deployed on 02.10.2012 to the tune of Rs.2,18,400=00, directing the OP-2 to pay compensation for Rs.1,00,000=00 due to negligent and deficient service towards the complainant at the time of deployment of below quality stents, directing the OP-3 to pay a sum of Rs.1,00,000=00 as compensation due to unfair trade practice as it sold a  below quality stent to the OP-1 and directing the OP-1, 2 & 3 jointly to pay a further sum of Rs.4,00,000=00 for medical expenditure incurred by him at the time of second operation along with mental pain, agony and harassment.

              The petition of complaint has been contested by the OP-1 by filing written version contending that being a well equipped Super Speciality & Government recognized Hospital having trained and experienced staffs, nurses, doctors and RMO etc. it used to take proper care and attention to each and every patient including this patient-Complainant. This OP always used to maintain and keep the bed head tickets in accordance with Law, so this OP has made party unnecessarily in this complaint and for this reason this complaint should be dismissed. The patient was diagnosed as a case of MI (Myocardial Infraction) on 30.09.2012 and stared life saving medications on emergency basis and ultimately he was shifted in the CCU at this OP. Pre-operative and post-operative complication was explained by the doctor of this OP to the patient as well as the patient party and the procedure was done after taking consent from the patient party. The expenditure incurred had been reflected in the final bill of this OP and the same was handed over to the patient party as per the hospital policy. The discharge summary dated 05.10.2012 shows that the patient was explained about drug complication, risk of stent thrombosis and chance of restenosis. The names of the stents, which implanted in the patient, were ENDEAVOR SPRINT-RI, ENDEAVOR SPRINT-LAD, approved by USFDA.  Mishap occurs despite the exercise of reasonable skill, care & practice of evidence based medicine. This OP had provided proper and standard treatment by its eminent doctor to this patient in accordance with the procedure of medical science and for this reason as there was no negligence on its part in providing medical treatment to the patient, hence this complaint is liable to be dismissed.

              The petition of complaint has been contested by the OP-2 by filing written version stating that there was no lack of competency in attending the patient. There was no negligence either in the application and selection of remedies or lack of proper skill in the use of instrument or failure to give proper treatment to the patient. The patient presented himself with complaint of chest pain on 30.09.2012 at about 11.15 pm. He was evaluated in the Department of Emergency Medicine as a case of NSTEMI (TROP I+ve) and was transferred to CCU under the Department of IOCS. On 01.10.2012 the patient underwent coronary angiogram which revealed coronary artery disease, double vessel disease i.e. Lad 9-0% stenosis distal segment and Ramus intermedius 100% proximal stenosis. Patient was recommended for PTCA + stent to RI and LAD, which was performed on 02.10.2012. Subsequently he got discharge on 05.10.2012 in a hemodynamically stable condition. The relatives of the patient were explained about using of drug, risk of strength thrombosis and chance of restenosis (as per discharge summary dated 05.10.2012). The patient was again admitted on 14.05.2013 with complaint of recurrence of anginal pain and detail re-evaluation was done. Coronary Angiogram was done on 15.05.2013 which revealed 95% instent restenosis in DES to LAD with new lesion developing proximally and the patient was advised revascularization due to instent restenosis in LAD. Patient wanted to do at a later date and he was discharged on request on 15.05.2013. Thereafter the patient was admitted in RTIICS on 06.06.2013 with diagnosis of instent restenosis and underwent PTCA with stenting to LAD, RI and DIAGONAL and was discharged on 10.06.2013. The patient was advised revascularization due to instent restenosis in LAD, which was performed in RTIICS and the diagnosis and the treatment procedure advised by the OP-1 co-related with the treatment in the RTIICS. The OP-2 has submitted that being a qualified and eminent cardiologist he diagnosed the patient as case of MI (Myocardial Infraction) on 30.09.2012 and stared life saving medications on emergency basis. Thereafter the OP had advised for shifting in the CCU at the OP-1. Pre-operative and post-operative complication was explained by him to the patient as well as the patient party, and the procedure was done after taking consent from the patient party. The expenditure incurred had been reflected in the final bill and the same was handed over to the patient party as per the hospital policy. The discharge summary dated 05.10.2012 shows that the patient was explained about drug complication, risk of stent thrombosis and chance of restenosis. The names of the stents, which implanted in the patient, were ENDEAVOR SPRINT-RI, ENDEAVOR SPRINT-LAD, approved by USFDA.  Mishap occurs despite the exercise of reasonable skill, care & practice of evidence based medicine. This OP had treated the patient in accordance with the procedure of medical science and for this reason as there was no negligence on his part in providing medical treatment to the patient, hence this complaint is liable to be dismissed. 

               The petition of complaint have been contested by the OP-4 & 5 by fling conjoint written version stating that within the four corners of the complaint no allegation has been made out by the Complainant in respect of these OPs and no relief has been sought for from these OPs also. Therefore, by impleading these OPs in the petition of complaint the Complainant has tried to harass these OPs unnecessarily. It is mentioned by the Complainant in the petition of complaint that he was admitted at the OP-4 as per the advice of the OP-5 and got discharge from the OP-4 in a stable condition. After the treatment at the OP-4 by the OP-5, no whisper has been made by the Complainant that inspite of taking treatment of the OP-5  at the OP-4 his sufferings did not subsided, rather since discharge from the OP-4 till date no averment is made out by the Complainant that he is still suffering from the same problem. According to the OP-4 & 5 proper treatment was provided by the said OPs and for this reason the OPs have prayed for either expunging their names from the cause title of the complaint or to dismiss the complaint with cost.

               The Complainant by filing a petition had prayed for an expert in the field of Cardiology for determination as to whether there was any medical negligence on the part of the OPs or not. Accordingly the said prayer was allowed and all the medical treatment related papers of the Complainant was transmitted to the expert doctor of the SSKM Hospital, Kolkata and Dr. S. Dutta being the Director and HOD (Cardiology) has forwarded his opinion upon considering the documents and papers. The Complainant and all the OPs have adduced their respective evidences on affidavit. The Complainant has cross examined the OPs separately by filing questionnaire and all the OPs have filed their respective replies on affidavit. The evidence of the Complainant has been challenged by the OPs by way of filing questionnaire and the Complainant has filed the replies, but not on affidavit. The parties have filed several papers and documents along with treatment related papers of the concerned patient in support of their respective contentions.

             We have carefully perused the record; papers and documents filed by the parties and the expert opinion submitted by the expert doctor of the SSKM Hospital, Kolkata and heard argument at length advanced by the Ld. Counsel for the parties. At the very outset we are to adjudicate as to whether the Complainant is a consumer or not and this complaint is maintainable or not. From the petition of complaint it is evident that the Complainant had hired the medical treatment and service from the OPs by making payment of due consideration amount, so in our view the Complainant is a consumer in view of the definition of ‘Consumer’ as enumerated in the Consumer Protection Act, 1986. Admittedly the Complainant was treated at the OP-1 under the OP-2. The addresses of the OP-1 and 2 fall within the territorial jurisdiction of this Ld. Forum and in the prayer portion of the complaint the amount which the Complainant has sought for (value of service and compensation) does not exceed the pecuniary jurisdiction of this Ld. Forum. Hence this complaint is maintainable both from territorial and pecuniary points of view.

              Now we are to adjudicate as to whether there is any deficiency in service and medical negligence on the part of the OPs or not. It is necessary to mention that in the prayer portion the Complainant had sought for compensation to the tune of Rs.1,00,000=00 from the OP-3 due to supply of below quality stent. During proceeding of this complaint the OP-3 paid the amount of Rs.1,00,000=00 to the Complainant on ‘humanitarian ground’ by issuing an account payee cheque along with a petition on affidavit. Subsequently by filing a petition the Complainant had expunged the name of the OP-3 from the cause title of the complaint.

              Upon careful perusal of the petition of complaint we have noticed that no allegation has been made by the Complainant against the OP-4 and 5, rather it is mentioned that since discharge from the OP-4 wherein he was under the treatment of the OP-5, he is not suffering from any discomfort and chest pain till date. In the prayer portion also no relief has been sought for by the Complainant against the OP-4 and 5. Therefore in our opinion as we do not find out any medical negligence on the part of the OP-5 and negligent and deficient service of the OP-4 and moreover where no allegation is made out against these OPs, hence the complaint should be dismissed against the OP-4 and 5.

                 Now we are to see as to whether there is any medical negligence and deficiency in service on the part of the OP-1 and 2 or not. It is pertinent to mention that the petition of complaint has been filed by the Complainant not supported by affidavit, which is mandatory as per law in view of the landmark judgment of the Hon’ble Supreme Court passed in the case of Dr. J. J. Merchant. Moreover the replies submitted by the Complainant in respect of the questionnaire of the OPs are also not supported by any affidavit, which is also mandatory as per law in view of the abovementioned judgment. Hence the evidence adduced by the Complainant should go and as the written versions of the OPs are supported by affidavit and the complaint is not supported by affidavit, hence complaint has lost its value and we cannot rely on the averment mentioned in the complaint because by filing written versions on affidavit the OPs have contradicted the averment of the petition of complaint. So, on this score alone the complaint is liable to be dismissed. Inspite of this we are inclined to dispose of the complaint on merit.

              In the petition of complaint the Complainant has alleged that the stents implanted by the OP-2 at the OP-1 were suffering from its below quality, not up to the mark and for which he had to suffer for a prolonged period and ultimately he went to the OP-4 wherein after operation by the OP-5 he became cure from his discomfort and chest pain. Admittedly the questioned two stents was supplied by the OP-3 as per the specification of the OP-1 and 2 and the Complainant paid the cost of those stents. The Complainant had also incurred the entire expenditure of his treatment. We have noticed that though the Complainant has made allegation regarding the below quality of the stents, which are lying in his custody as the same were removed subsequently by the OP-5 at the OP-4, but the stents has not been sent to the appropriate expert/laboratory for examination to determine as to whether the stents suffer from its below quality or not. No application has been made by the Complainant in this connection for sending the same to any Forensic laboratory for examination. During argument it is stated by the Ld. Counsel for the Complainant that as the OP-3 has paid a sum of Rs.1,00,000/- to him from whom the stents was purchased by the OP-1, hence such action clearly reveals that the stents are suffering from its below quality. In this respect the ld. Counsel for the OP-1 and 2 has submitted that due to below quality of the stents the OP-3 did not pay such amount towards partial refund, he paid the amount on humanitarian ground only. It is seen by us that the OP-3 had filed an affidavit stating therein that he paid a sum of Rs.1,00,000=00 to the Complainant on humanitarian ground by issuing an account payee cheque in his favour. The affidavit does not show that the OP-3 has admitted that the stents were below quality. Though the OP-3 paid the said amount to the Complainant, but we cannot come to the conclusion that the quality of the stents were below. Moreover the cost of two stents were for Rs.2,18,400=00, but the OP-3 had paid a sum of Rs.1,00,000/- to the Complainant. Under the circumstances we are to say that in case of admission by the OP-3 regarding the below quality stent, why partial payment was made by the by the OP-3 and in our view he was under obligation to pay the entire cost of the stents to the Complainant.  During argument the Ld. Counsel for the Complainant has argued that due to substandard quality of the stents restenosis occurred in the patient. But the Expert Doctor has opined that ‘Restenosis may appear due to several factors i.e. Lesion Anatomy, Under Deployment and Anti Platelet Resistance or Irregular Medicine Intake’. No where it is mentioned by the Ld. Expert Doctor that the stents implanted by the OP-2 at the OP-1 were suffering from its low quality and due to implantation of such below quality stents restenosis occurred. The Expert opinion does not reveal that the questioned stents were below quality. It is said by the Expert that the cost of the questioned stents is high, but in our view being agreed with such cost the Complainant gave his consent for implantation of those stents and during making payment of the said cost, neither he nor his relatives raised any protest regarding the cost of the product.  The Complainant has failed to show us any authentic and standard literature mentioning the mandatory ingredients of any standard and quality stent and he has also failed to prove that the one or some ingredients are shortcoming in the questioned stents. Therefore the Complainant has miserably failed to prove the allegation as made by producing cogent evidence. Hence the complaint fails against the OP-1 and 2.

               Going by the foregoing discussion, hence it is

O r d e r e d

 that the complaint is dismissed on contest against all the OPs. However considering the facts and circumstances there is no order as to cost. 

            Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer protection Regulations, 2005.                

Dictated and corrected by me.                                                               

                  (Silpi Majumder)

                         Member

                DCDRF, Burdwan

                                                      (Pankaj Kumar Sinha)                        (Silpi Majumder)

                                                                 Member                                          Member   

                                                          DCDRF, Burdwan                          DCDRF, Burdwan