State Consumer Disputes Redressal Commission
Manas Ranjan Samantray vs Care Hospitals on 19 August, 2022
STATE CONSUMER DISPUTES REDRESSALCOMMISSION,ODISHA,CUTTACK
CONSUMER COMPLAINT NO. 40 OF 2018
Manas Ranjan Samantaray, aged about 41 years,
S/o Late Atita Charan Samantaray of
At - 76 Jayadurga Nagar, Ps - Laxmisagar,
Bhubaneswar - 751 006, Dist. Khurda
... Complainant
Vrs.
1. CARE Hospitals represented by its
Manager/ Chief Executive, At - Plot No. 324 (P),
Prachi Enclave Chandrasekharpur,
Bhubaneswar - 751 016,
Dist - Khurda
2. Manas Ranjan Swain, S/o Not known,
CARE Hospitals, At: Plot No. 324 (P),
Prachi Enclave, Chandrasekharpur,
Bhubaneswar - 751 016, Dist : Khurda
3. Dr.Mahendra Prasad Tripathy, S/o Not known,
CARE Hospitals, At: Plot No. 324 (P),
Prachi Enclave, Chandrasekharpur,
Bhubaneswar - 751 016,
Dist : Khurda
4. The Registrar, Odisha Council of Medical
Registration, Block No. II, Unit - V,
Bhubaneswar - 751 001,
Dist - Khurda
... Opp.Parties
____________
For the complainant : M/s K.K.Rout & Associates
For opp.party No.1 : M/s P.K.Sahoo & Associates
For opp.party Nos. 2 & 3 : M/s Dr.C.Misra & Associates
_____________
2
P R E S E N T:
HON'BLE DR. JUSTICE D.P.CHOUDHURY, PRESIDENT,
DR P.K.PRUSTY, MEMBER
AND
MISS S.L.PATTNAIK, MEMBER
DATED THE 19th AUGUST, 2022
ORDER
DR. D.P. CHOUDHURY J., PRESIDENT The factual matrix leading to the case of the complainant is that the complainant's father namely, Atita Charan Samantaray who is a retired Govt. servant was on a visit to Vrindavan of Utter Pradesh. It is alleged that Atita became ill and was treated at Nayati Multi Super Specialist Hospital in Mathura of Uttar Pradesh till 1.1.2017 when he came back to Odisha. After return to Odisha said Atita complained illness for which the complainant took him to OP No.1's Hospital on the same day and consulted OP No.3 - Dr. Mahendra Prasad Tripathy, Cardiologist. It is alleged inter alia that complainant had deposited Rs.500/- towards consultation charges of Dr Tripathy. 3 After waiting for some time, OP No.2 asked the complainant to have some pathological test of Atita. Then the complainant got the pathological test of Atita. After the pathological report was submitted by the complainant to OP No.2, the pathological report of the complainant shows the sugar level was high for which complainant requested OP No.2 to prescribe some diabetic medicine but OP No.2 did not prescribe any medicine. It is further alleged that after four days of taking medicine as advised by OP No. 2 no change took place to the father of the complainant. So on 7.1.2017 the father of the complainant again went to said hospital and OP advised medicine like tablet Glevo 750 mg and Faronem 200 mg. After taking such medicines the health condition of the father of the complainant became deteriorated. It is further averred that one of the neighbour of the complainant being a P.G. student of Pharmacology verified the prescription and asked the complainant to consult the Pulmonologist. Then they visited Dr. Anil Kumar Mohanty, who 4 advised not to take above Glevo - 750 mg medicine which is a dangerous medicine.
2. Complainant further alleged that after the complainant's father suffered some suffocation and pain in chest, he again went to OP No.1 Hospital in January, 2017. Every time OP No.2 treats the father of the complainant instead of OP No.3. Since the complainant insisted for being treated by OP No.3 but on 23.1.2017 complainant could meet OP No.3 as the father of the complainant was getting pain during urination. There, OP No.3 advised for urine test but did not advice to other test relating to prostrate problem. It is alleged inter alia that the said Atita was not admitted in the Hospital but as an OPD patient, he was treated. However, on 23.1.2017 OP No.3 requested the father of the complainant to be treated by Endocrinologist. Thereafter, the complainant took his father to Dr. Abhaya Sahoo, Professor and HOD, Deptt. of Endocrinology, AIIMS, who advised him to take insulin and further advised that complainant should have been checked by Endocrinologist from the beginning. 5
3. It is further case of the complainant that on 2.2.2017 the father of the complainant got senseless and he was taken to CARE Hospital but OP No.3 without having clinical examination had only declared that he is dead. Complainant alleged inter alia that without giving any treatment and admission in the Hospital, OP No.3 only declared him dead. Complainant alleged that due to mishandling of the case of his father in CARE Hospital, his father died. Complainant stated to have lodged FIR and also lodged complaint before the Registrar, Orissa Counsel of Medical Education (OP No.4) against OP Nos. 1 to 3. After collecting all papers under RTI Act, the complainant alleged that due to negligence of OP Nos. 1 to 3, his father expired. He filed a complaint to direct OP Nos. 1 to 3 to show cause and award compensation of Rs.62,00,000/- and cost of Rs.50,000/- Hence, the complaint.
4. OP Nos. 1 to 3 filed written version but OP No.4 did not file written version. OP No.1 filed written version separately stating that the complaint is not maintainable and there is no cause of 6 action for the complainant to file any case. The complaint is bad for non-joinder and mis-joinder of necessary parties. It is the case of OP No.1 that the complainant's father was suffering from "CAD-ACS-EVOLVED INF LATERAL WALL MI, IN HYPOTENSION & RENAL SHUT-DOWN, MODERATE PERICARDIAL EFFUSION (RESOLVING), MILD LV SYSTOLIC DYSFUNCTION (EF-40%)m COPD WITH EXACERBATION, AKI (RECOVERING), DM TYPE II (NEWLY DETECTED)." The father of the complainant was advised with certain medicines but never advised to treat with any type of diabetic medicine. It is also case of OP No.1 that on 1.1.2017 father of the complainant was treated as outdoor patient in the Hospital of OP No.1. At first the registration was done in the morning hour. Thereafter, the father of the complainant was provided treatment by OP No.3 who advised certain medicine. According to OP No.1, OP No.2 being the Clinical Assistant of OP No.3, he used to prepare the outdoor ticket and other documentation of the patient. OP No.3 treated the father of the complainant. It is further averred that the father of the 7 complainant having problem of (abnormal) ECHO - Mod Pericardial 48.11mg/k1/1.29mg/d1 CXR-CE++/PVH+ and was advised the medicine in addition to following medicines prescribed by the Nayati Hospital of Vrindavan:-
A) DLURETIC 9TAB TIDE PLUS 10MGONCE DAILY) B) ANTLBLOTIC (CLARIBID 5-00MG TWICE DAILY FOR 5 DAYS) C) BRONCHODILATOR (TAB DERIPHYLLINE ONCE DAILY) D) SYRP POTKLOR 3TSF TWICE DAILY FOR 2 DAYS (for low potassium ) in addition to previous medicine.
As per pathological report since the father of the complainant has random blood sugar of 175mg, he was not advised any diabetic medicine by OP No.3. However, the father of the complainant was advised come again after five days of taking the medicine for further investigation. On 7.1.2017 the complainant's father again visited OP No.1 Hospital as outdoor patient. The investigation was already done on 6.1.2017 and investigation revealed that he has got some pulmonary problem 8 and accordingly Dr. Damodar Bindhani prescribed medicine of Tab GLEVO 750mg once daily for 10 days. Then the father of the complainant was advised to take the medicine and further take examination of the blood after two weeks. OP No.1 stated that the daily treatment prescribed was in the register of OP No.1. The allegation of the complainant that a PG student found the medicine of GLEVO 750mg is a dangerous medicine was denied by OP No.1. On 11.1.2017 the father of the complainant came with Sputum C/S report which was positive. Dr Bindhani again prescribed medicine by adding tablet Faronem 200mg for its use twice daily for 10 days. Accordingly, treatment continued but on 22.1.2017 the father of the complainant visited the OP No.1's Hospital and the treatment was provided by OP Nos. 2 and 3. On that day his urine was examined. Again the blood of father of the complainant was examined and on that day, it is found that the complainant's father has got blood sugar for which he advised to consult Dr. Utkal Keshari an Endocrinologist 9 of that Hospital. Thereafter, the father of the complainant did not come forward.
5. OP No.1 denied about any visit of complainant's father on 2.2.2017 and any check up rendered by OP No.3. He alleged that these allegations are fabricated by the complainant. It is also averred that post-mortem report of the complainant's father clearly states that he has got cardio vascular disease but not of diabetic or any other risk.
6. OP No.1 states that OP No.3 is none other an experienced Cardiologist and the best treatment has been rendered to the father of the complainant and the allegations against OP Nos. 1 to 3 is absolutely frivolous. Rather it is averred that OP Nos.1 to 3 are neither responsible nor committed any negligence as alleged by complainant.
7. OP Nos. 2 and 3 jointly filed written version stating that the complaint is not maintainable and there is no any negligence in their duty to render treatment to the father of the complainant 10 Atita Charan Samantaray. It is also found from their written version that they have almost supported OP No.1 and it is specifically stated that OP No.2 is a Clinical Assistant of OP No.3 who has the professional expertise and as per advise of OP No.3 the pathological examination of the father of the complainant was performed. Complainant has not been advised diabetic at first because the random blood sugar was 175mg which does not require any medicine. On the other hand, they pleaded that there is no any deficiency in service on their part. Whenever, OP No.3 found that the complainant's father developed diabetic, he advised for treatment by a diabetologist. Thereafter, he has not treated the complainant's father. It is also averred that the father of the complainant was having cardio vascular disease which clearly shows that death was not due to circulatory failure but due to cardio vascular disease. However, both of them denied about any commission of negligence by them. 11 ISSUES FOR DISCUSSION
8. Having gone through the complaint and the written version of OP Nos. 1 to 3 following issues emerge for determination.
i) Whether the complainant case is maintainable?
ii) Whether there is any cause of action to file the complaint?
iii) Whether there is negligence on the part of OP Nos. 1 to 3?
iv) Whether the complainant is entitled to any compensation, if so quantum of such compensation?
DISCUSSIONS Issue No.(iii) Issue No.(iii) being decisive to other issues is taken up at first for discussion.
9. After going through both the pleadings, it appears that the complainant has alleged about negligence on the part of OP No. 1 to 3 whereas OP Nos. 1 to 3 repudiated the entire claim. Both parties have adduced evidence on affidavit and documents. Most of the documents are admitted for both the parties with regard to the treatment in the Hospital of OP No.1. It is well 12 settled in law that the complainant is to prove his case with regard to the negligence committed by OP Nos. 1 to 3. In this case, complainant in order to prove the case by filing documents. In the case of medical negligence, the settled principle has been well discussed by the Hon'ble Supreme Court of India in the case of C.P.Sreekumar (Dr.)(Ortho.) vrs. S.Ramanujam (2009) 7 Supreme Court Cases 130, Martin F.D'Souza vrs. Mohd. Ishfaq 2009 AIR SCW 1807, Ramesh Chandra Agrawal vrs. Regency Hospital Limited and others (2009) 9 Supreme Court Cases 709, Vinod Jain vrs. Santokba Durlabhji Memorial Hospital and another (2019) 12 Supreme Court Cases 229 and Maharaja Agrasen Hospital and others vrs. Master Rishabh Sharma and others with Pooja Sharma and others vrs. Maharaja Agrasen Hospital and others (2020) 6 Supreme Court Cases 501. Learned counsel for both parties do not dispute about applicability of those decisions.
10. The most leading judgment on this issue is Jacob Mathew vrs. State of Punjab and another 2005 AIR SCW 3685. In that 13 case Their Lordships have considered the case of negligence in consumer dispute vis-à-vis under the IPC. It is clearly held at Para - 10, 11, 19, 23 & 49 of the judgment which are as follows:-
"xxx xxx xxx
10.With the awareness in the society and the people in general gathering consciousness about their rights, actions for damages in tort are on the increase. Not only civil suits are filed, the availability of a forum for grievance redressal under the Consumer Protection Act, 1986 having jurisdiction to hear complaints against professionals for 'deficiency in service', which expression is very widely defined in the Act, has given rise to a large number of complaints against professionals, in particular against doctors, being filed by the persons feeling aggrieved. Criminal complaints are being filed against doctors alleging commission of offences punishable under Section 304A or Sections 336/337/338 of the IPC alleging rashness or negligence on the part of the doctors resulting in loss of life or injury ( of varying degree) to the patient.
xxx xxx xxx Negligence as a tort.
11. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the 14 Law f Torts. Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P.Singh). It is stated (at p.441 - 442) - "Negligence is the breach f a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. - The definition involves three constituents of negligence (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs, for, damage is a necessary ingredient of this tort."
xxx xxx xxx
19. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he processes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his 15 client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Micael Hyde and Associates v. J.D.Williams & Co. Ltd., (2001) P.N.L.R. 233, CA, Sedly L.J. said that where a profession embraces a range of views as to what s an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable (Charlesworth & Percy. Ibid, Para 8.03) xxx xxx xxx 16
23. In the opinion of Lord Denning, as expressed in Hucks v. Cole (1968) 118 New LJ 469, medical practitioner was not to be held liable simply error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
xxx xxx xxx
49.We sum up our conclusions as under:-
(i) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable and would not do.
xxx xxx xxx (2) Negligence in the contest of medal profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different form one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medal profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary 17 experience of men has found to be sufficient: a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisites skill which he professed to have possessed, or, he did not exercise with reasonable competence in the given case, the skill which he did possess. The stand to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made that the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case (1957) I WLR 582, 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree.
Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
18
xxx xxx xxx
11. With due regard to the aforesaid decision, it must be observed that in the case of professional negligence the Bolam test was to be applied because in Bolam's vrs. Friern Hospital Management Committee (1957)I WLR 582, 586, it has been held that where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.
12. Thereafter, such decision of Jacob Mathew (Supra) and Bolam's (Supra) have been also followed in (2009) 7 SCC 130 C.P.Sreekumar (Dr.), MS (Ortho.) vrs. S.Ramanujam where Their Lordships held at Para - 29 which is as follows:-
"xxx xxx xxx
29. In paras 24 and 32 of Jacob Mathew case, it has been observed thus: (SCC pp.21 & 23 - 24) "24. The classical statement of law in Bolam case has been widely accepted as decisive of the standard of care required both of 19 professional men generally and medical practitioners in particular. It has been invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill.
xxx xxx xxx
* * *
32. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) tht many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation, the person holding the 'smoking gun"
(Emphasis supplied)."
13. Later on also the same decisions on the Bolam's test have also been followed in the decision of Martin F.D'Souza vrs. Mohd. Ishfaq 2009 AIR SCW 1807. In the D'Souza case at Para - 41 Their Lordships held as follows:-
" xxx xxx xxx
41. A medical practitioner is not liable to be held negligent simply because things went wrong form mischance or misadventure 20 or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribahu Khodwa and others vs. State of Maharashtra and others, AIR 1996 SC 2377,or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade."
However, in another decision of Hon'ble Supreme Court the Bolam test was held not mandatory vide decision passed in V.Kishan Rao vrs. Nikhil Super Speciality Hospital (Supra) where Their Lordships observed for reconsideration of the cases supporting Bolam test. In that judgment Hon'ble Supreme Court have not over ruled ratio of Jacob Mathew case or D'Souza case etc. Therefore, the Bolam test being crystal clear remains the real test to examine professional negligence of the Doctor. Not only this but also the recent decision of Hon'ble Supreme Court have been rendered in Maharaja Agrasen Hospital and others vrs. Master Rishabh Sharma and others with Pooja Sharma and others vrs. Maharaja Agrasen Hospital and others 21 (2020) 6 Supreme Court Cases 501 where Their Lordships have upheld the standard of care as enunciated in Bolam's case. The Bolam test has been a rule of practice of evidence. However, said decision has not overruled the Bolam test principle. Their Lordships in the judgment have clearly held that medical negligence comprise of following constituents as observed at para - 12.4.1 which is as follows:-
"xxx xxx xxx 12.4.1. Medical negligence comprises of the following constituents:
(1) A legal duty to exercise due care on the part of the medical professional;
(2) failure to inform the patient of the risks involved; (3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional; (4) if the risk had been disclosed, the patient would have avoided the injury;
(5) breach of the said duty would give rise to an actionable claim of negligence."
Their Lordships have also followed the Halsbury's Laws of England in following manner at Para - 12.4.4:-
"xxx xxx xxx 22 12.4.4. The degree of skill and care required by a medical practitioner stated in Halsbury's Laws of England is as follows:
"22. Negligence: Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owed him certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."
"35. Degree of skill and care required - To establish liability on that basis it must be shown (1) tht there s a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
(Emphasis supplied)
14. With due regard to the aforesaid decisions, it must be observed whether in the present case how far the OP No.3 - Doctor have treated the father of the complainant with due professional care as skilled professional. Here in this case, the complainant has to prove the negligence on the part of OP Nos. 1 to 3 and then onus shift to OP Nos. 1 to 3 to prove their innocence.
23
15. Complainant in order to prove his case has filed evidence on affidavit where he is clearly stated that his father Atita Charan Samantaray was on visit to Vrindavan from 24.12.2016 to 01.01.2017 and there he was admitted to Nayati Super Speciality Hospital, Mathura because of his illness. After recovery from the disease, he returned to Bhubaneswar on 1.1.2017. After return his father complained some illness for which he took his father to OP No.1 - CARE Hospital on 2.1.2017 to consult OP No.3 - Doctor. He stated at Para - 3 that he deposited Rs.500/- towards consultation charge of OP No.3. According to his version, OP No.2 called his father and asked for certain pathological test but on that day in spite of his effort could not meet OP No.3. The treatment record dated 2.1.2017 shows that the father of the complainant has been treated by OP No.3 although the medicines have been written by OP No.2 because of the stamp of OP No.3 affixed on the top of the document. In that treatment record, it appears that the father of the complainant has got a random blood sugar 175mg. In that 24 regard the complainant stated to have requested OP No.2 to prescribe diabetic medicine but OP No.2 did not prescribe the medicine. On the other hand, it appears from the record that on that day OP No.3 has prescribed medicine and also asked for certain test after five days. Therefore, it is not proved by the complainant that on 2.1.2017 his father was not treated by OP No.3.
16. Complainant has also stated to have taken his father on 7.1.2017 to OP No.1 Hospital where OP No.2 examined his father and again advised for pathological test with some medicine like Glevo 750 and Faronem 200mg. In that regard the treatment record dated 07.1.2017 shows that he was treated actually by OP No.3 where the blood sugar has been recorded as 169/242 as fasting blood sugar/ PP blood sugar but the Glevo 750mg has been prescribed on the pad of OP No.3. But the doctor again asked for test of pathological examination after 15 days. Here complainant alleged at para 4 of his evidence on affidavit that one of his neighbour being a P.G. student of 25 Pharmacology verified the prescription and stated that medicine Glevo 750mg has side effect and also advised to consult one Pulmonary doctor. Thereafter, complainant visited Dr.Anil Kumar Mohanty, MD, Pulmonary medicine who advised not to take that medicine as it is danger to the patient. The statement of complainant does not disclose why he has not reported this matter to OP Nos. 2 and 3. However, the medicine Glevo 750mg and Faronem 200mg were prescribed by the Pulmonary Specialist of CARE Hospital. However, on that day also the diabetic medicine was not prescribed but other medicines were added.
17. The treatment record dated 21.1.2017 vide Annexure - 1 series is also filed. The statement of complainant does not show his visit to OP No.1 - Hospital on 21.1.2017. However, the prescription dated 21.1.2017 shows that they have repeated the medicines earlier prescribed by OP No.3 after recording the Pathological test report. The report shows that the complainant has Fasting Blood Sugar 157mg and Post Prandial Plasma 307. It 26 appears from the statement of complainant that he has again visited the CARE Hospital on 23.1.2017 when he is able to meet the doctor - OP No.3. In fact signature of OP No.3 is available on 23.1.2017 where OP No.3 advised complainant to consult Dr. Utkal Kishore for the diabetic disease. At the same time, he has also asked for routine and culture examination of urine of father of complainant. Statement of complainant does not show about advice of OP No.3 to consult Dr.Utkal Kishore of CARE Hospital for diabetic disease. The omission of such fact in his statement doubt his credibility. So the supervision of OP No.3 on 23.1.2017 cannot be denied. In this regard the written versions of OP Nos. 1 to 3 show that since complainant was found having sugar level high in blood, they have asked Dr.Utkal Kishore to be consulted.
18. But the statement of complainant shows that he did not consult Dr. Utkal Kishore but consulted one Dr.Abhaya Sahoo on 24.1.2017. Dr Sahoo is not a doctor deployed at OP No. 1's Hospital. According to complainant Dr.Sahoo asked the complainant to administer insulin to his father and also he gave 27 the opinion that Dr.Tripathy- OP No.3 who has advised to consult Pulmonary Specialist should have asked to consult Endocrinologist from the beginning. However, the complainant stated to have started insulin from 25.1.2017. As per his statement, his father became senseless on 2.2.2017 morning. He immediately took him to CARE Hospital. While his father taken in his car, OP No.3 examined his father in the car without ECG and declared his father dead. According to the complainant, he asked OP No.3 to give the death certificate but the latter refused to give. So he took him to Capital Hospital where doctor declared him dead. Thereafter, complainant reiterated about negligence of OP Nos. 2 and 3 who treated his father and alleged that due to their negligence his father has expired. The complainant has also stated that OP No.3 has never advised his father to conduct CAG plus Revascularization test. Had he done the test, his father would have survived. He also stated to have alleged against OP No.3 before OP No.4 who sat over the matter 28 by asking OP No.3 to give his reply. But the complainant has not proved the outcome of enquiry held by OP No.4.
19. Be that as it may, complainant further alleged that OP No.2 is not a doctor but he has advertised himself as doctor. So, he submitted that OP No.2 having no qualification treated his father resulting negligence followed with death of his father. In appreciation of evidence, the oral testimony of witness made is to be tested along with the documents relied upon by such witness. The treatment record which are admitted by both the parties are crucial to weigh grievance of the complainant. The sole grievance of the complainant as it appears from the statement shows that OP No.3 has not treated his father as per his expectation and OP No.2 being not a doctor has prescribed medicines resulting the death of his father. The treatment records as revealed from the above analysis that OP No.3 has attended his father right from 2.1.2017 till 23.1.2017 for treating the father of the complainant. It is also revealed that the medicines have been written by OP No.2 but the statement of 29 complainant is not supported by any PG student or Dr. Anil Mohanty who have opined that Glevo 750mg is dangerous to the life of complainant's father. Had they been examined by complainant to corroborate the statement of the complainant, his statement could have got more strength. Apart from this, report of Dr Abhaya Sahoo is available on record vide Annexure
- 3 where it is not endorsed that the deceased father of the complainant could have at least treated earlier for the diabetic mellitus. His prescription only shows to have prescribed certain insulin. Dr.Abhaya Sahoo was not examined to support complainant to prove that Dr.Tripathy should have advised earlier for treatment of diabetic disease. Moreover, the treatment record does not corroborate statement of complainant to prove negligence of OP Nos. 2 and 3. Now the question arises whether OP No.2 prescribed medicine of his own or on being prescribed by OP No.3 who is a Cardiologist and very eminent doctor in the Hospital itself as per their pleadings. 30
20. From the aforesaid analysis, it appears that the complainant has not proved the facts alleged by cogent, consistent and corroborate evidence. Even if complainant has failed to prove his allegation, OPs have adduced evidence to rebut the allegations of complainant. It is also equally settled in law that if both parties have adduced evidence, importance of onus probandi was importance and both parties have to prove their respective pleas through their respective evidence.
21. OPW 1 is none but Chief Executive Officer of OP No.1 Hospital. According to him the Chief Operating Officer was Dr. Jawed who has filed the written version but however after stepping into his shoe accordingly OPW 1 filed the affidavit. The statement of OPW No.1 clearly shows that OP No.2 is a Clinical Assistant but not a doctor. The statement of OPW 2 also shows that he is not a doctor but to assist OP No.3. The statement of OPW No.1 clearly corroborates the treatment record. His evidence relies on the documents made prior to his joining. However, he has proved that OP No.3 treated the father of the 31 complainant and OP No.2 was assisting OP No.3 for rendering treatment to the complainant's father. He stated that complainant's father never came to the Hospital on 2.2.2017 where OP No.3 declared him dead. However, he entirely supports the written version of OP No.1 to OP No. 3.
22. The statement of OPW 2 shows that from 2.1.2017 till 23.1.2017 the complainant's father was treated by him as outdoor patient. It is revealed from his statement that he has not prescribed any medicine on diabetic because the discharge summery of Nayati Hospital where the father of the complainant was treated has been prescribed with medicine but not a single medicine of diabetic was prescribed. In his evidence on affidavit, he has clearly revealed about the disease for which complainant's father was hospitalised at Nayati Hospital in following manner:-
"xxx xxx xxx
3. Late Atita Charan Samantaray 72 years/male has hospitalised to NAYATI HOSPITAL, Mathura, (D.O. Admission:
25.12.`1016/ D.O.Discharge:- 01.01.2017) with diagnosis:-
CAD - ACS-EVOLVED INF.LATERAL WALL MI 32 IN HYPOTENSION & RENAL SHUTDOWN MODERATE PERICARDIAL EFFUSION (RESOLVING) MILD LVSYSTOLIC DYSFUNCTION (EF - 40%) COPD WITH EXACERBATION AKI (RECOVERING) DM TYPE II (NEWLY DETECTED) No Diabetic medication was prescribed on discharge. Complaint Mr Manas Ranjan Samantaray has written "The doctor at the above said Hospital provided good treatment and after recovery, he was discharged from Nayati Hospital on 01.01.2017 and there after he came back to Odisha." It clearly emphasised that Late Atita Charan Samantaray was in good condition with stable vitals and to have routine follow up at native place. Mr Manas Ranjan Samantaray mentioned" he got discharged from the hospital on 1st January 2017 and Dr.H.S.Somnath of the NAYATI Hospital advised to consult a doctor in Bhubaneswar as and when required." (Written to The Registrar of Orissa Council of Medical Registration dt.16.08.2017)."
OPW No.3 stated that during treatment, Atita was suffering from DM TYPE II (Newly Detected) but no medicine was prescribed. He also stated that after pathological examination in their Hospital he found the random blood sugar was 175 which is a normal in case of non-diabetic person for which he asked for test again of the blood sugar after 4 to 5 days. He further 33 stated that as there was low potassium, in blood of Patita, he added some medicines in addition to the medicine given by Nayati Hospital. He also stated that on 7.1.2017, OP No.3 verified pathological report of the deceased father of the complainant and found that the father of the complainant was suffering from some pulmonary disease. So, he advised to consult Dr. Damodar Bindhani who advised the medicine Glevo 750 once daily 10 days. Dr. Bidhani also treated the patient on 11.1.2017 as the sputum report was positive. He added Faronem 200mg tab twice daily for 10 days. The document dated 11.1.2017 does not show the signature of Dr. Bindhani. We believe the statement of OPW No.3 because in his writing pad the medicines have been prescribed. According to him whatever medicines have been prescribed, all have been prescribed either under his instruction or Dr.Bindhani to OP No.2 to writ the name of medicine with doses as per his instruction. So OP No.2 cannot be said a part of the treatment meted by him to the father of the complainant. On the other hand, OPW No.3 has clearly 34 revealed that whatever medicine has been prescribed, it has been prescribed by him and he has made signature and OP No.2 has never treated the father of the complainant except rendering clinical assistance to OP No.3.
23. However, the statement of OPW No.3 further shows that on 21.1.2017, he found the blood sugar report of complainant's father was little high. So, he again asked for repeats of same test and finally after going through the report of high blood sugar, he referred the father of complainant to be treated by Dr. Utkal Kishore, the diabetic doctor of CARE Hospital. He further submitted in his statement that he is not aware of any treatment rendered to the complainant by Dr. Abhaya Sahoo and also not aware of any PG student or Dr. Anil Mohanty to have given any opinion. He has denied to have visited the father of the complainant in car near the hospital on 2.2.2017. He further stated that they have not made any negligence in treating the father of the complainant, rather the father of the complainant died out of natural disease process. He, therefore, 35 proved the copy of the post-mortem report of the father of the complainant. The post-mortem report shows that the cause of death of father of complainant was natural disease process due to circulatory failure as a result of COIMSTRUCTIVE PERICARDITIS which means the death was not due to heart attack nor diabetic but natural. Therefore, he stated that the death of Atita was not due to any sort of negligence on the part of OP Nos. 1 to 3.
24. From the evidence adduced by OP Nos. 1 to 3, it is clear that throughout from 2.1.2017 to 23.1.2017 the treatment was meted out by OP No.3 to the father of the complainant. Of course in between Dr.Bindhani has treated for the pulmonology disease. Further, it is proved from the evidence of OPW Nos. 1 and 2 that OP No.2 being a clinical assistant had only written the medicines under the direct supervision of OP No.3. Not only this but also their statements show that OP No.3 has neither declared the father of the complainant dead nor visited father of complainant in the car near CARE Hospital on 2.2.2017. The statement of OP No.3 is relatively creditworthy becaue the 36 Senior Doctor does not visit to any patient in the vehicle to treat him. When complainant has taken his father near CARE Hospital, there is no reason why the patient was not taken to the Hospital for examination. Therefore, the statement of OPW 1 and 3 along with the written version is more reliable and creditworthy to prove that the best possible treatment was rendered to the father of the complainant.
25. Now balancing the evidence of both parties adduced, we are of the opinion that the complainant has not proved the negligence on the part of OP Nos. 1 to 3. Of course the complainant complained to OP No.4 against OP No.3 and he also proved copy of allegations vide Annexure - 4 and the show cause by OP No.3 to OP No.4 but never proved the outcome of inquiry by concerned authority. Therefore, the complainant's case has not been corroborated by any material on record even by the post-mortem report as discussed above.
26. Be that as it may, we are of the view that for proving negligence of the doctor the complainant has to call for expert 37 opinion but in the instant case, we do not find any reason to call for the expert opinion as per complainant's allegation his father died solely due to lack of treatment by not prescribing diabetic medicine. It is again observed that OP No.3 being cardiologist is well aware of his father's disease and accordingly, he only advised for consulting endocrinologist at the nick moment when the blood sugar remained high. Whether Dr. Abhaya Sahoo is part of OP No.1 Hospital or not, but he treated the father of the complainant before his death. Had he treated meticulously as per complaint, then why the father of the complainant died on 2.2.2017. Therefore, after much analysis of the case, we are of the view that there is no any negligence from the side of OP Nos.
1 to 3 to extend treatment to the father of the complainant.
Now applying the aforesaid decisions of Hon'ble Supreme Court of India when OP No.3 - Doctor has taken all best possible steps to cure the patient i.e. father of complainant, the negligence of OP No.3 is hardly to be attributed. Learned counsel for complainant submitted that OP No.1 to 3 could have taken steps 38 to detect diabetic disease from the beginning but due to their fault Atita Charan Samantaray died. Per contra learned counsel for the OPs submits that as per record OP No.1 to 3 have taken proper steps to cure the father of the complainant. Rather the father of the complainant was not treated by OP Nos. 1 to 3 from 23.1.2017 to 2.2.2017 as admitted by both parties. So negligence of OP Nos. 1 to 3 for death of father of the complainant is hardly to be believed. We have considered their contentions as per the evidence on record as observed above.
27. In view of aforesaid analysis, we are of the view that complainant has not proved negligence on the part of OP Nos. 1 to 3 towards the death of the father. This issue is answered accordingly.
ISSUE NO.1, 2 & 4
28. In view of answer to Issue No.3, we are of the view that there is no any case made out by the complainant to get the compensation from OP Nos.1 to 3. Since the medical negligence on the part of OP Nos. 1 to 3 is not proved, the complainant is 39 not entitled to compensation. So, there is no cause of action to file the case. Also due to want of proof of negligence by the complainant the case is not maintainable
29. For the forgoing reasons, we hereby find that the complaint is liable to be dismissed and accordingly same is dismissed. Respective parties are to bear their own cost.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
Date 19.8.2022 Cuttack, PS ..............................
(Dr.D.P.Choudhury J) President .....................
(Dr.P.K.Prusty) Member ..........................
(Miss S.L.Pattnaik) Member