State Consumer Disputes Redressal Commission
Smt. Namita Chatterjee vs Dr. Mousami Banerjee & Others on 31 May, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/328/2012 (Arisen out of Judgement dt. 21.5.12 of DCDRF, Burdwan in D.F.Case No. 75/2009) DATE OF FILING : 20.06.2012 DATE OF FINAL ORDER: 31.05.2013 APPELLANTS 1. Dr. Mousami Banerjee Doctors Quarter, Block-I Quarter No. 4, Baburbag Burdwan-713 104. 2. Smt. Indrani Ghosh Proprietor of H.K.Nursing Home Khosh Bagan Burdwan-713 101. RESPONDENTS 1. Smt. Namita Chatterjee At Tejganj (Dutta Para) Nutanganj, Burdwan-713. 2. Dr. Tushar Maji Chamber Address Beside H.K.Nursing Home (Western Side), Khosh Bagan, Burdwan-713 101. FOR THE APPELLANT : Mr. Avik Kr. Das, Ld. Advocate FOR THE RESPONDENT : Mr. Amit Chattopadhyay, Authorised representative (Respondent No. 1) S.C. CASE NO. : FA/421/2012 (Arisen out of Judgement dt. 21.5.12 of DCDRF, Burdwan in D.F.Case No. 75/2009) DATE OF FILING : 23.07.2012 DATE OF FINAL ORDER: 31.05.2013 APPELLANT Smt. Namita Chatterjee Wife of Late Aditya Chattopadhyay Resident of Tejganj (Dutta Para) Nutangong, Burdwan-713 102. RESPONDENTS 1. Dr. Mousami Banerjee Doctors Quarter, Block-I Quarter No. 4, Baburbag Burdwan-713 104. 2. Smt. Indrani Ghosh Proprietor of H.K.Nursing Home Khosh Bagan Burdwan-713 101. 3. Dr. Tushar Maji Chamber Address Beside H.K.Nursing Home (Western Side), Khosh Bagan, Burdwan-713 101. FOR THE APPELLANT : Mr. Amit Chattopadhyay, Authorised representative (Respondent No. 1) FOR THE RESPONDENT : Mr. Avik Kr. Das, Ld. Advocate BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MR. S.COARI MEMBER : MRS. MRIDULA ROY : O R D E R :
MR. S.COARI, LD. MEMBER The present two Appeals having arisen out of a single judgement dt. 21.5.12 passed by the Ld. District Consumer Disputes Redressal Forum, Muchipara, Burdwan, in D.F.Case No. 75/2009 both the Appeals are considered analogously and as such, the following judgement is delivered governing both the Appeal.
The case of the Complainant/Appellant in FA/421/2012 before the Ld. District Forum, in brief, was that the complainant was suffering from various ailments including Chronic Obstructive Pulmonary Disease (COPD) and was under the treatment of the OP No. 3, Dr. Tushar Maji.
The complainant was detected to have drug allergy in Penicillin and Sulpher. According to the complainant, as the complainant developed some vision problems, the complainant consulted an Ophthalmologist and Surgeon at Burdwan, who opined that the complainant has developed premature Cataract in her left eye which could be eliminated through surgical intervention. Thereafter, as per advice of the OP No. 3 the complainant got admitted in the nursing home of OP No. 2 at Burdwan under the OP No. 3.
Subsequently, on the advice of the OP No. 3 the complainant got herself examined by the OP No. 1/Ophthalmic Surgeon, who is also a specialist medical practitioner in Micro Surgery and Ophthalmology. The OP No. 1 upon examination of the complainant opined that Cataract Operation could be done successfully by her. Thereafter, at the intervention of the OP No. 3 the complainant was admitted in the nursing home of the OP No. 2 and on the assurance so given by the OP No. 1 as regards safe and successful Cataract operation of the complainant the complainant underwent Cataract operation on the left eye on 14.6.2007.
According to the complainant, the operation was effected under anaesthesia and the COPD factor did not cause any hindrance in the said operation of the complainant. On 15.6.2007 the complainant was discharged from the nursing home. But the complainant was not free from various sorts of discomforts including irritation, watering, reddishness etc. in the eye, which compelled the complainant to attend the chamber of the OP No. 1, who prescribed some medicines with the assurance that discomforts etc. will go away within a very short period of time. As the complainant did not get any relief whatsoever as regards her discomforts etc. in her eye, she once again visited the OP No. 1 on 21.6.2007 when the OP No. 1 prescribed some high dose of anti-biotic for the purpose of eliminating the scope of secondary infection in the eye of the complainant. According to the complainant, though it was not necessary, but in spite of that the Op No. 1 noted in the prescription about referring the complainant to a higher institution without explaining any reason therefor and also did not mention the history of the case for reasons best known to the OP No. 1. It was the further case of the complainant that subsequently the complainant again visited the OP No. 1 on 23.6.2007 when the OP No. 1 has though observed that everything was going on fine, but at the same time, has referred the case to a higher institution. Thereafter, according to the complainant, the complainant was taken to Disha Eye Hospital at Hooghly on 24.06.2007 where she was examined by Dr. D.Chakraborty, who diagnosed that the complainant was suffering from Endopthalmities and referred the complainant to one Dr. T.K.Sinha at Barrackpore Disha Centre. On the next date, i.e. 26.6.2007, Dr. Sinha operated on the left eye of the complainant and continued her treatment under the supervision and care of Dr. Sinha till 19.11.2007 when as there was no improvement in the eye of the complainant the same had to be eviscerated. It is the specific case of the complainant that the OP No. 1 performed the surgery on her left eye without taking reasonable care and that the operation was conducted in a negligent manner. At the instance of the complainant the CMOH, Burdwan, placed the complainant under a three-men enquiry committee and the said committee by submitting a report has held that the OP No. 2/Nursing Home was deficiency in providing infrastructural facilities to the complainant in the matter of conducting the eye surgery in question and also held that the Nursing Home was not clean as per standard specifications, which has caused infection in the eye of the complainant. According to the complainant, the OP No. 1 without taking proper precautions and without obtaining pre-operative investigation reports in respect of the complainant, which were extremely necessary for conducting successful operation in the eye of the complainant, conducted the operation in question, which tantamounts to gross deficiency in service at the instance of the OP No. 1 and hence, the petition of complaint for a relief to the tune of Rs. 9,99,000/- as per prayer of the petition of complaint.
The OP No. 1, Dr. Mousami Banerjee, and the OP No. 2, Smt. Indrani Ghosh, proprietor of H.K.Nursing Home, Burdwan, contested the case by filing two separate written versions thereby denying and disputing the allegations so put forward on behalf of the complainant contending, inter alia, that there was no negligence and/or deficiency in service at the instance of the OP, as claimed by the complainant. According to the OP No. 1, the operation on the left eye of the complainant was conducted after observing all the necessary formalities and precautions, which are required in a case of present nature including necessary investigations, which were necessary for surgical intervention in the left eye of the complainant. According to the OP No. 1, the complainant was admitted under the OP No. 3 with some COPD problems and thereafter, as the situation arose the OP No. 1 was engaged for treatment and removal of Cataract in the left eye of the complainant and the OP No. 1 after observing all the required formalities in due course of time operated and removed the Cataract from the left eye of the complainant. It was further contended by the OP No. 1 that after the complainant was found fit to undergo the operation she was operated on the left eye and in this regard, there was no negligence and/or deficiency at the instance of the Op No. 1. According to the Op No. 1, the complainant was initially admitted under the care and supervision of the OP No. 3 and after the Cataract operation she remained in the nursing home under the care and supervision of the OP No. 3 and as per advice of the OP No.3 she was released therefrom and as such, question of giving discharge certificate at the instance of the OP No. 1 does not arise at all. It is further contended by the OP No. 1 that immediately after the operation the complainant did not develop Endopthalmities and necessary care was taken by the OP No. 1 before and after the Cataract operation so conducted by the OP No. 1 upon the left eye of the complainant. In the absence of any cogent and reliable materials against the OP No. 1, as alleged by the complainant, the petition of complaint was liable to be dismissed against the Op No. 1.
The OP No. 2 while denying the allegations so put forward by the complainant in the petition of complaint has contented, inter alia, that the complainant at her own will and desire got admitted in the Nursing Home in question on the advice of the Op No. 3. The Op No. 2 never insisted and/or requested to get herself admitted in the nursing home of the Op No. 2 and as such, question of accusing the Op No. 2 in this regard does not arise at all. The doctors under whom the complainant was admitted in the nursing home, never raised any dispute and/or allegation against the nursing home in question so far as it relates to providing necessary infrastructural facilities, which are required for the purpose of operation upon the left eye of the complainant. According to the OP No. 2, for the purpose of Cataract operation of the complainant the nursing home in question was adequately equipped with the necessary facilities. In the absence of any negligence or deficiency in service at the instance of the Op No. 2, the petition of complaint was liable to be dismissed.
Ld. District Forum while disposing of the petition of complaint has observed that the allegations so put forward by the complainant against the OP No. 1 have been substantiated to a reasonable extent.
In this regard, the Ld. District Forum has opined that from the materials on record it has become evident that the OP No. 1 without conducting the necessary and required investigations and tests upon the complainant conducted operation and even after the operation when the complainant attended the OP No. 1 for her discomforts etc., the OP No. 1 has failed to provide proper treatment to the complainant so as to give relief to the complainant from her ailments and discomforts, which has clearly established that the OP No. 1 was deficient in service, as alleged by the complainant. In this regard, the Ld. District Forum has also observed that the OP No. 1 did not care to provide Discharge Certificate in respect of the complainant, which also tantamounted to deficiency in service. So far as it relates to asking the complainant to consult a higher institution, according to the Ld. District Forum, it was nothing but avoiding the responsibility by the OP No. 1 and the same certainly tantamounted to gross negligence and deficiency in service. In this connection, the Ld. District Forum has also observed that the infection, Endopthalmities, certainly developed before the complainant attended the higher institution, as it is evident from the materials on record. According to the Ld. District Forum, the OP No. 1 was also responsible for the loss of left eye of the complainant, which was only due to the negligence and deficiency in service at the instance of the OP No. 1.
While designating the OP No. 2 to be deficient in service, the Ld. District Forum has observed that the report of the CMOH, Burdwan, supports the allegation levelled against the OP No. 2 by the complainant, inasmuch as, the concerned report clearly indicates that the Nursing Home in question was not fit with infrastructural facilities, nor it was neat and clean as per standard specifications. Having adjudged the OP Nos. 1 & 2 to be deficient in service and negligent in rendering medical services to the complainant the Ld. District Forum disposed of the case by granting compensation to the tune of Rs. 5,00,000/- in favour of the complainant, out of which the OP No. 1 was directed to pay Rs. 4,50,000/- while the OP No. 2 was to pay Rs. 50,000/-, and disposed of the petition of complaint accordingly.
The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified enough in disposing of the petition of complaint in the manner as mentioned above.
Decisions relied upon by the complainant :-
1.
IV (2005) CPJ 62 (NC)
2. 2004 (2) CPR 130 (NC)
3. IV (2005) CPJ 394
4. III (2008) CPJ 376
5. CPJ 2 (2000) 308
6. IV (2005) CPJ 14 (SC)
7. IV (2003) CPJ 298
8. IV (2003) CPJ 311
9. II (2006) CPJ 142
10. II (2007) CPJ 21 (NC)
11. I (2002) CPJ 199
12. CPJ 2 2000 384
13. AIR Supreme Court 1996 2111
14. CPR 1 2005 695
15. 2001 ACJ 1204
16. Civil Appeal No. 3541 of 2002 Martin F. DSouza Vs. Mohd. Ishfaq DECISION WITH REASONS At the time of hearing the authorized representative for the complainant has submitted before us that though the Ld. District Forum has held the OP Nos. 1 & 2, i.e. the Doctor, who had operated upon the eye of the complainant and the Nursing Home concerned, to be negligent and deficient in service, but has failed to appreciate the magnitude of the deficiency and/or negligence on the part of the Ops and, as such, has arrived at a decision thereby granting compensation to the tune of Rs. 5,00,000/-, which is certainly erroneous and also against the principles of natural justice, when the complainant has prayed for a sum of Rs. 9,99,000/- and more so, when the complainant has been able to substantiate her case by adducing cogent and reliable evidence. While elaborating on this point the authorized representative for the complainant has urged before us that on perusal of the materials on record it has become evident that the OP No. 1 was deficient in service and negligent in rendering medical services to the complainant, which has been pleaded and proved in minute details at the instance of the complainant. According to the authorized representative, so far as it relates to deficiency in service, when it is an admitted position that the OP No. 1 has failed to take necessary preventive and precautionary measures before and after the operation and when the Ld. District Forum has accepted the version of the complainant in this aspect, there was no point on the part of the Ld. District Forum to diminish the claim of the complainant to a great extent without any rhyme and reason and that on this score alone the impugned judgement is liable to be set aside and the complainant should be awarded with the claim as prayed for in the petition of complaint. The authorized representative for the complainant has further submitted before us that it was rather curious enough that even after adjudging the Ops to be deficient and negligent in service on the basis of the allegations so put forward by the complainant, the Ld. District Forum did not assign any reason for diminishing the just and proper claim of the complainant by passing the impugned judgement. According to the authorized representative for the complainant, when the case of the complainant so far as it relates to deficiency and negligence on the part of the Ops has been proved to a reasonable extent, the Ld. District Forum ought to have granted the reliefs, as prayed for by the complainant, and the Ld. District Forum having failed to do so the present appellate court is competent enough to set aside the impugned judgement and allow the Appeal so preferred by the complainant and enhance the quantum of compensation so awarded in the impugned judgement in terms of the prayer of the complainant made in the petition of complaint.
The Ld. Advocate for the Ops while countering the submissions so put forward on behalf of the complainant has submitted before us that there is practically no cogent and reliable evidence against the OP No. 1 so far as it relates to alleged medical negligence to the complainant and/or deficiency in service on the part of the Ops. While elaborating on this point the Ld. Advocate for the Ops has submitted before us that the complainant has heavily banked upon the report of the CMOH, Burdwan, but on perusal of the said report it has become evident that the same is absolutely silent against the OP No. 1 and on the basis of that report no adverse inference can be drawn against the OP No. 1 so far as it relates to medical negligence and/or deficiency in service, as claimed by the complainant.
The Ld. Advocate for the Ops has also submitted before us that when in spite of repeated requests by the OP No.1 for attending a higher institution, the complainant was not prompt enough to attend any higher institution and after a delay of couple of days when she actually attended a higher institution, by that time some infections might have developed in the eye of the complainant, for which it is the complainant who is responsible and not the OP No. 1.
According to the Ld. Advocate for the Ops, when the complainant herself chose to get herself admitted in the Nursing Home on the advice of the OP No. 3, one cannot accuse the OP No. 2 subsequently by alleging insufficient infrastructural facilities. According to the Ld. Advocate, knowing fully well about the infrastructural facilities available in the nursing home in question the complainant opted for getting herself operated in that nursing home, for which the OP No. 2 should not be held responsible by designating it to be deficient in service. While concluding his submissions the Ld. Advocate for the Ops has urged before us that in this case the complainant has utterly failed to produce any medical experts opinion/report so as to substantiate her allegations levelled against the Ops. According to the Ld. Advocate, without a medical experts report/opinion question of holding a doctor to be deficient in service and/or negligent in rendering medical services to a patient does not arise at all and the Ld. District Forum having ignored this aspect of the case, the impugned judgement is liable to be set aside on this score alone. According to the Ld. Advocate, the Ld. District Forum having failed to appreciate the actual state of affairs has arrived at a wrong and improper decision and, as such, the impugned judgement is not at all sustainable under the law and is liable to be set aside.
We have duly considered the submissions so put forward on behalf of both sides and have also gone through the materials on record including the different decisions relied upon by the complainant and find that in this case the complainant has come forward with a case of medical negligence and/or deficiency in service against the doctor, who had operated upon her left eye, and also against the nursing home in which she was admitted, wherein the operation was conducted. According to the complainant, the doctor was deficient in service in not adopting preventive measures and precautions before and after the operation and also medically negligent in conducting the operation without having pre-operational investigations upon the complainant, which are extremely necessary for an effective operation of the present nature. As, immediately after the operation, the complainant developed discomforts and problems, initially the complainant attended the OP No. 1 on several occasions. But as the OP No. 1 failed to give any relief to the complainant, the complainant had to attend a superior institution where her actual discomforts were properly diagnosed and after an operation, which was uneventful, her left eye had to be eviscerated. According to the complainant, the manner in which the OP No. 1 conducted the operation was clearly a case of gross medical negligence and deficiency in service and that the nursing home without having proper infrastructural facilities allowed the complainant to get herself admitted therein and operated upon her left eye, which has caused serious infection in the eye of the complainant after the operation, for which the nursing home is responsible on the ground of deficiency in service and, hence, the petition of complaint. The Ops contested the case by filing two separate written versions thereby denying and disputing all the allegations of the complainant contending, inter alia, that there was no medical negligence and/or deficiency in service at the instance of the Ops and prayed for dismissal of the petition of complaint.
We have carefully gone through the impugned judgement and perused the materials on record. On a careful perusal of the materials on record we find hat it is an admitted position that the complainant after the operation attended the Op No. 1 with some discomforts and that the OP No.1 though prescribed some medicines to the complainant, but at the same time also advised the complainant to approach a higher institution. The complainant without approaching any higher institution immediately attended the OP No. 1 on several occasions and that on all occasions the OP No. 1 advised the complainant to approach a higher institution. Thus, we find that the complainant did not care to follow the advice of the OP No. 1, which, in our opinion, tantamounts to non-cooperation. In this regard, the decision of the Honble National Commission reported in 2012 (2) CPR 118 (NC) Dr. V.S.Malik Vs. Avik Mukherjee and Anr., is very much relevant, wherein the Honble National Commission has held, Doctor cannot be saddled with medical negligence if patient does not co-operate. Moreover, we find much substance in the submission so put forward by the Ld. Advocate for the OP No. 1, according to whom, in the absence of any medical experts report/opinion, question of holding the OP No. 1 to be medically negligent or deficient in service does not arise at all. So far as it relates to the report of the CMOH, we find that the same is silent so far as it relates to OP No. 1/Doctor. If that be the position, we are unable to accept the proposition so observed by the Ld. District Forum thereby holding the OP No. 1 to be deficient in service and medically negligent in rendering the medical help to the complainant.
So far as it relates to the OP No. 2/Nursing Home, we find that the report of the CMOH, Burdwan, clearly depicts the shabby condition of the nursing home in question and also absence of adequate infrastructural facilities annexed to it. The unhygienic condition of the Nursing Home is, therefore, an established fact. In our opinion, the Ld. District Forum was quite justified in upholding the case of the complainant so far as it relates to the OP No. 2/Nursing Home. In this connection, in the decision reported in 2013 (1) CPR 402 (NC) The Apollo Emergency Hospital and Others Vs. Dr. Bommakanti Sai Krishna and others, the Honble National Commission has held in Paragraph-8, Thus, there is preponderance of possibilities of the infection having been acquired in the hospital itself.
Much has been agitated on behalf of the complainant to the effect that the Ld. District Forum has not appreciated the claim of the complainant and the awarding of compensation was not adequate. In this regard, we are of the considered opinion that awarding of compensation so far as it relates to OP No. 2 is quite justified and proper and we are not inclined to interfere with the finding of the Ld. District Forum so far as it relates to OP No. 2/Nursing Home.
We have also gone through different decisions so relied upon by the complainant.
But, as the facts and circumstances of those decisions are quite different from the instant one, the principles laid down in those decisions are not applicable in the facts and circumstances of the instant case.
Having considered the present Appeal in the light of above discussions, we are of the considered opinion that the finding of the Ld. District Forum so far as it relates to the OP No. 1/Doctor is liable to be set aside and that of the OP No. 2 stands confirmed. Both the Appeals are accordingly disposed of.
Hence, it is ORDERED that both the Appeals bearing Nos. FA/328/2012 and FA/421/2012 stand disposed of with the observation that awarding of compensation of Rs. 4,50,000/- as against the OP No. 1/Doctor stands set aside while that of Rs. 50,000/- so awarded against the OP No. 2/Nursing Home stands confirmed.
The impugned judgement is modified to the extent stated above.
MEMBER MEMBER PRESIDENT