28/01/15
HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
This is a complaint case wherein it has been averred by the Complainant that from the year 1991 her husband Late Dinabandhu Chatterjee was treated for cardiac ailments by the OP No.7, that is, the Hospital of IISCO Ltd., SAIL, Burnpur, District-Burdwan. On 6th November, 1992 he was referred to B. M. Birla Heart Research Centre at Kolkata (OP No.9) under office memo dated 06/11/92 of the OP No.7. After thorough investigation the said B. M. Birla Heart Research Centre submitted a report on 11/11/92 stating that there was no evidence of L.V. dysfunction, but in spite of that the said Hospital (OP No.7) administered heavy doses of medicines for heart disease and her husband was declared unfit for service on 23/04/96 on health ground. The report of the OP No.9 was not given to the Complainant, but to the OP and, as such, the report is lying with the OP Nos.7 and 9. On 03/07/96 a Medical Board was constituted by OP No.7 to check up the condition of her husband, but the result of that check up by the Medical Board was not made available to the Complainant or her husband. However, the patient was declared unfit. The husband of the Complainant was declared medically unfit upto 03/01/97 by the IISCO Hospital which compelled her husband to take voluntary retirement from service on and from 04/01/97. On 19/05/06 her husband was admitted to the said Hospital complaining of pain in right side of abdomen, but without any test or scanning, the Hospital (OP No.7) operated on 23/05/06 the left side of the abdomen of the patient. On being asked they told that it was the operation of hernia on the left side of abdomen. For the willful negligence, wrong and inefficient treatment by the doctors of IISCO Hospital (OP No.7) the condition of the patient deteriorated day after day and finally he expired on 22/09/06. The complaint was lodged with the Director of Health Services, West Bengal and the Medical Council of West Bengal. The Medical Council did not take any action. The Director of Health Services (Administration), Government of West Bengal advised the Chief Medical Officer, Burdwan to enquire and investigate into the matter. Accordingly, the CMO(H) of Burdwan formed a Board of three members to investigate into the matter. The Enquiry Committee gave opportunity of personal hearing to the Complainant on 09/08/07 and on 20/08/07 at Burnpur Hospital and also in the office of CMO(H), Asansol respectively. The enquiry report was sent to the Director of Health Services, West Bengal who intimated the Complainant that the said report along with documents have been sent to Medical Council, West Bengal for appropriate action. Due to premature retirement the patient suffered loss of Rs.3,50,000/-. The Complainant claimed damages of Rs.23,50,000/- against the OP Nos.1, 2, 3, 4 and 7.
The OP No.3 filed W.V. denying all the material allegations raised by the Complainant. It has been contended that the patient Late Dinabandhu Chatterjee during his service period applied for voluntary retirement which was accepted by the Competent Authority and all his retirement benefits regarding such voluntary retirement was paid to him on 04/01/97. He took voluntary retirement on and from 04/01/97 vide order dated 03/01/97. He was admitted to Burnpur Hospital benevolently maintained and run by IISCO Hospital at Burnpur for rendering free medical treatment to the employees and ex-employees of the Company. On 27/08/06 at about 11.35 a.m. he got admitted in the Hospital with C.A. gall bladder secondaries in liver and jaundice. On admission the patient gave history of his being operated somewhere in Kolkata on 18/07/06 and it was revealed that he was suffering from carcinoma, gall bladder and liver. At the time of admission he also gave, inter alia, histopathology report which revealed that the patient was suffering from highly malignant tumour involving all the layers of gall bladder with infiltration to the surrounding gall bladder fossa in liver bed. It was also suggestive of differentiated adenocarcinoma. As the picture had multiple SOLs in liver beds and rectroperetonial lymphadenopathy (vide CT Scan) it was diagnosed from the above finding that the patient had disseminated intra abdominal malignancy. He was enlisted as DIL case on admission. He expired on 22/09/06 due to critical illness and advanced stage of malignancy where survival rate is almost negligent as has been observed. The observation by B. M. Birla Heart Research Centre, Kolkata was not provided in detail to the Burnpur Hospital Authorities or its doctors. The patient was otherwise completely aware of his medical examination by the Medical Board and it reveals from the medical examination summary sheet that the patient had put his signature twice on 14/06/96 and 03/07/96 and after proper examination the Board was of opinion that he was not fit for the present type of job. During his service he applied for voluntary retirement and it was accepted. It is not correct that the patient had no complaint on the left side of the abdomen. The medical booklet entry dated 06/03/06 clearly shows that the patient was suffering from left side inguinal hernia (direct) and he was, accordingly, advised for preoperative routine test, the copies of which have been attached as Annexure-D series. After making required investigation, the patient was under pre-anesthetic check up on 24/04/06 and, subsequently, he was fit for being given anesthesia as ASA-II case and on 28/04/06 he was advised to attend room no.2 on 19/05/06 at 8 a.m. for admission for operation on 23/05/06. The surgery was planned after necessary investigations and check up. The two doctors, namely, ACMO(H), Durgapur and Zonal Leprosy Officer, Burdwan conducted enquiry taking into consideration all the documents on 09/08/07 and there was no third doctor in the said enquiry. The OP No.3 is not in the receipt of any enquiry report. The enquiry report as submitted by the Complainant shows that there were three doctors, but the fact remains that two doctors only conducted the enquiry and, as such, it is bad in law.
The Learned Counsel for the Complainant has submitted the BNA and contended that the patient was suffering from gall bladder, but the OP Nos.3 and 7 treated him for heart disease, hernia etc. for 15 years. It is submitted that on the prayer of the Complainant the Government set up 3-member Enquiry Committee and the Committee found negligence on the part of the OPs. It is submitted that the OP No.3 did not raise any objection against this report and it remains unchallenged. It is submitted that the patient was forced to take voluntary retirement and he remained on leave without pay. It is contended that the OP No.3 on recommendation of the OP No.7 had sent the patient to B. M. Birla Heart Research Centre for investigation and no ailment of heart was found there. It is submitted that for 63 days the patient remained in the Hospital as indoor patient, but at no stage the USG was done.
The OP No.3 filed BNA and the Learned Counsel has submitted that the service that was rendered was philanthropic and it was free of cost. It is contended that the patient was an employee of IISCO which was run by the Ministry of Steel and it was not a profiteering concern. It is contended that there was high malignancy in the gall bladder and the patient was unfit for the job. It is submitted that the OP rendered services and nothing was stated by the Complainant as to what he did from 1996 to 2006. It is contended that the operation was successful as to the enquiry report. It is submitted that the doctors were not subjected to cross-examination. It is contended that the patient was in the advanced stage of cancer and because of the treatment he was alive till 2006. It is submitted that before getting admitted in IISCO he was attacked with cancer.
We have heard the submission made by both sides and perused the papers on record. It has been contended by the Learned Counsel for the OP that free treatment was done and, as such, the Complainant cannot claim to be a consumer. In this connection the Complainant has annexed the copies of the cash receipts being Annexure-B (P-61) wherefrom it appears that the Complainant made payments regarding treatment in the Hospital. The Complainant, therefore, is a consumer u/s 2(1)(d) of the C. P. Act, 1986 and the complaint is maintainable.
It has been alleged by the Complainant that the patient did not suffer from any cardiac ailment, but he was treated with high doses of medicines for the heart disease, as a result of which his condition deteriorated. It is in evidence that the patient was referred by OP No.7 to B. M. Birla Heart Research Centre. It appears from the Annexure-A to the complaint, that is, letter dated 06/11/92 that the OP No.7 referred the patient to B. M. Birla Heart Research Centre. The said Centre after investigation submitted report and the final impression was “92% of maximum exercise stress test is positive for the electrocardiographic evidence of the provokable myocardial ischaemia”. There are the papers [vide Annexure-F (P-71 to 82)] relating to the investigation done regarding the ailments of the patient. Annexure-A is the report on diagnosis which shows “chest pain with palpitation”. From the aforesaid papers it cannot be said that the patient had no cardiac ailment. The contention of the Complainant in this regard is not acceptable.
It is the contention of the Complainant that the patient had pain in the right side of abdomen, but the OP No.7 wrongly conducted operation of hernia in the left side. From the copies of the medical papers filed it would not appear that at any stage the patient had pain in the right side. It is the contention of the Complainant that without any preoperative test hernia was operated upon in the left side. On this point it has been averred in Paragraph-10 of the W.V. of OP No.3 that the medical booklet entry dated 06/03/06 would clearly show that Dinabandhu Chatterjee was suffering from left side inguinal hernia (direct) and he was, accordingly, advised fro preoperative routine test. There is no evidence to show that the patient had pain in his right side prior to the operation of hernia. It appears from the prescription of Dr. V. B. Gupta dated 08/07/06 [Annexure-D (P-65)] that hernia was operated in May 2006 on treatment. The contention of the Complainant in this regard, therefore, is not acceptable.
The Learned Counsel for the Complainant has drawn our attention to the enquiry report conducted by the Medical Board and its report dated 21/08/07. The complaint was made regarding the operation of C.A. gall bladder. In this connection the Committee submitted report that prima facie the complaint seemed to be true and interrogation was done on phases in Hospital with the parties and with the doctor. It was also noted therein that on scrutiny it revealed that there were no documents of patient before 2004. While making observation the Board recorded that it was not clear as to why the USG was not done earlier and why it was overlooked by the “series of doctors/panel”. The Board also observed “RT sided hernia operation was a planned operation (as per record shown). Signs of negligency observed.” But it appears from Annexure-D (P-66), that is, the report on USG of upper abdomen dated 10/07/06 that the impression was cholelithiasis, hypoechoic SOLs in liver with portal lymphadenopathy (more likely to be neoplastic). It further appears that the patient was treated at Hindusthan Health Point and he remained admitted there from 17/07/06 to 26/07/06 and the clinical note was differentiated adenocarcenoma of gall bladder. It is not clear why the USG report was not placed before the Medical Board. The allegation of deficiency in service on this point also has not been substantiated.
Having heard the Learned Counsel for the parties and on careful perusal of the papers on record, we are of the considered view that the Complainant could not prove the alleged negligence in treatment of the patient or deficiency in service on the part of the OPs. The Complainant, therefore, is not entitled to get any relief.
The petition of complaint is dismissed.
