State Consumer Disputes Redressal Commission
North City Hospital & Neuro Institute ... vs Sri Kamalesh Singh on 30 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/187/2014 (Arisen out of Order Dated 15/01/2014 in Case No. CC/300/2011 of District Kolkata-II(Central)) 1. North City Hospital & Neuro Institute Pvt. Ltd. 73, Bagmari Road (near HUDCO Bus stop), P.S. Ultadanga, Kolkata - 700 054, P.O. Kankurgachi, Dist. North 24 Pgs. 2. Dr. Sudipta Kumar Dutta 9/121, HUDCO Housing Estate, P.S. Ultadanga, Kolkata - 700 054, P.O. Kankurgachi, Dist. North 24 Pgs. ...........Appellant(s) Versus 1. Sri Kamalesh Singh S/o Siya Shankar Singh, CISF, Unit NSCBIA, P.O. & P.S. - Airport, Kolkata - 700 052. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Abhik Das Mrs. Koyeli Mukhopadhyay, Advocate For the Respondent: None appears Dated : 30 Mar 2017 Final Order / Judgement HON'BLE MR. TARAPADA GANGOPADHYAY, MEMBER
This Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OPs challenging the judgment and order dated 15.1.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in C.C. No. 300 of 2011, directing the OPs to pay Rs. 1,00,000/- as compensation for negligence and Rs. 10,000/- by each of the OPs as litigation cost within one month from the date of the order, failing which the OPs shall have to pay Rs. 400/- by each of the OPs per day as punitive damages for the entire period of default.
The brief facts of the case, as revealed from the materials on records, are that the Respondent/Complainant visited the Appellant No. 2/OP No. 2-Doctor with complaint of 'Lt. sided Varicocele. Rt. sided varicose vein (Leg)' for which the Respondent/Complainant was declared unfit for recruitment to the post of S.I. in C.P.F., as averred in the Petition of Complaint. After such visit, the Appellant No. 2/OP No. 2-Doctor examined the Respondent/Complainant, advised some laboratory tests at his recommended pathological centre and also advised for admission to the Appellant No. 1/OP No. 1-Hospital for operation. After admission on 14.1.2010 the Appellant No. 2/OP No. 2-Doctor performed 'Lt. sided varicocele with excision and ligation of Rt. sided Superficial Saphenous vein multiple subfascial ligation of varicose vein done on 15.1.10' as revealed from the Patient Discharge Summary. After such operation, the Respondent/ Complainant was discharged on 23.1.2010 in a 'haemodynamically stable and improved condition'. After discharge, the Respondent/Complainant further reported to the Review Committee of CPF/S.I. with medically fit certificate on 29.1.2010, but the said Review Committee further declared the Respondent/ Complainant medically unfit observing 'Right side Varicose Vein (leg) operated and cured and Left side Varicocele is present' as revealed from the result of review and medical examination for unfit condition. After such unfit declaration, the Respondent No. 1/Complainant sought second opinion from one Dr. D.K.Chattopadhyay who advised for operation for 'Left Varicocele' diagnosing the case of the Respondent/Complainant as 'Varicocle +' as revealed from the prescription dated 29.9.2010. With this factual background, the Respondent/ Complainant moved the Complaint concerned before the Ld. District Forum alleging non-performance of operation of the 'required left-sided varicocele' for which the Respondent/Complainant was allegedly denied selection in the post of S.I. of C.P.F., and the Ld. District Forum passed the order in the aforesaid manner. Being aggrieved by such order the OP s have preferred the instant Appeal.
The Ld. Advocate for the Appellants/OP Nos. 1 & 2 submits that the Respondent/Complainant with complaint of 'Left sided varicocele with right sided varicose vein' was admitted on 14.1.2010 to the Appellant No. 1/OP No. 1-Hospital for treatment under the Appellant No. 2/OP No. 2-Doctor.
The Ld. Advocate continues that after admission the Appellant No. 2/OP No. 2-Doctor performed surgery upon the Respondent/Complainant to the effect of 'Lt. sided excision of Varicose veins of the cord and ligation of Rt. sided Superficial Saphenous vein multiple subfascial ligation of varicose vein done'.
The Ld. Advocate adds that after such surgery, which was 'uneventful', the Respondent/Complainant was discharged on 23.1.2010 in 'haemodynamically stable and improved condition' as it is evident from the Patient Discharge Summary and Fit Certificate issued on 29.1.2010 by the Appellant/Doctor.
The Ld. Advocate further submits that after such discharge when the Respondent/Complainant reported to the Review Committee of the C.P.F. concerned on 13.4.2010, the said body opined "Lt. Varicocele - present, Rt. sided Varicose Vein (leg) operated and cured".
The Ld. Advocate adds that the finding of presence of left sided Varicocele is the result of its recurrence which is very common and chance of such recurrence is about 60%.
The Ld. Advocate continues that the fact of 'recurrence' is evident from the prescription dated 20.9.2010 of Dr. D.K.Chattopadhyay on records.
The Ld. Advocate finally submits that as the Appellant/OP-Doctor treated the patient following the standard medical protocol and recurrence of varicocele is very common, so there is no medical negligence on the part of the Appellant/OP-Doctor and as the doctor is not liable for negligence, so also the Appellant/OP-Hospital is also not liable vicariously.
The Ld. Advocate in support of his submission refers to a decision of the Hon'ble Supreme Court in Dr. C.P.Sreekumar, M.S. (Ortho) Vs. S.Ramanujam delivered on 1.5.2009 in Civil Appeal no. 6167 of 2008.
The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should be allowed and the impugned order be set aside and the Complaint be dismissed.
None appears on behalf of the Respondent/Complainant despite due service of Notice as is evident from the order dated 2.6.2016 of this Commission. Therefore, the case is being disposed of ex parte against the Respondent/ Complainant on the basis of evidence available on records.
Patient Discharge Summary dated 23.1.2010, as available on records (Running Page-34 of Memo of Appeal) reveals that the Appellant No. 2/OP No. 2-Doctor performed on 15.1.2010 the surgery upon the Respondent/Complainant to the extent "Lt. sided excision of Varicose veins of the cord and ligation of Rt. sided Superficial Saphenous vein multiple subfascial ligation of varicose vein". The said certificate also reveals that the Respondent/Complainant was discharged with 'improved condition'. Also the 'Fit Certificate' dated 29.1.2010, as available on records (Running Page-35 of the Memo of Appeal), reveals that the Respondent/ Complainant was declared fit for resuming work with effect from 30.1.2010.
On the other hand, the result of Review Medical Examination by C.P.F/S.I. dated 13.4.2010, as available on records (Running Page-40 of the Memo of Appeal) reveals "Lt. sided varicocele - present" which clearly indicates that the left-sided varicocele, the excision of which was claimed by the Appellant/OP-Doctor, who was neither a Urologist nor an Andrologist, not a Radiologist, was not properly done. Had the excision of the varicocele been done properly, then its presence could not have been traceable within a period of four months from the date of operation despite the possibility of recurrence which takes more than five months' time on an average, as is evident from the Publication in the website : www.ncbi.nix.gov>NCBI>leader>pub.met center.
From the Fit Certificate as referred to hereinabove it is also evident that after the operation the length of follow-up time which signifies the affects of recurrence, as commented in the website - www.ajantrology.com/article , is very short.
Also, no evidence was produced on behalf of the Appellant No. 2/OP No. 2-Doctor to show that the branches of internal spermatic were initially ligated, non-ligation of which causes recurrence, as is reported in the website : www.ajantrology.com/article .
Further, no evidence showing that the Appellant No. 2/OP No. 2-Doctor before operation brought to the knowledge of the Respondent/Complainant about the possibility of the recurrence of Varicocele within a short period of time and such non-communication about the possibility of recurrence goes against the medical ethics.
As a result, for the presence of Varicocele even after surgery the Respondent/Complainant was declared medically unfit and thus lost the opportunity for selection in the recruitment process concerned.
The aforesaid evidence on records and the observations clearly indicate the presence of three essential components of medical negligence, i.e. 'duty', 'breach' and 'resultant damage' in the case on hand.
The decision referred to by the Ld. Advocate for the Appellants/OPs are of no assistance to them.
The aforesaid discussion lead to the conclusion that the impugned order does not deserve any interference by this Commission.
Consequently, the instant Appeal is dismissed and the impugned order of the Ld. District Forum is affirmed. No order as to costs. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER