State Consumer Disputes Redressal Commission
Sri. Aniket Dey vs Dr. Sujit Basu & Ors. on 27 August, 2008
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.: 40/O/2005 DATE: 27.08.2008 DATE OF FILING: - 02.12.2005 COMPLAINANT : Sri. Aniket Dey, 22/A, Raja Raj Ballav Street, Calcutta-700 003. OPPOSITE PARTIES : 1. Dr. Sujit Basu, 14, Hindustan Road, Calcutta-700 029. 2. Mission of Mercy Hospital, 125/1, Park Street, Calcutta-700 017. 3. Dr. Shivaji Basu, C/o Wockhart Hospital & kidney Institute, 111A, Rashbehari Avenue, Calcutta-700 029. 4. Wockhart Hospital & kidney Institute, 111A, Rashbehari Avenue, Calcutta-700 029. BEFORE: HONBLE JUSTICE : Sri. Aloke Chakrabarti, PRESIDENT. MEMBER : Smt. Silpi Majumder. FOR THE COMPLAINANT : Smt. Koyeli Mukherjee, Advocate. FOR THE OPPOSITE PARTIES : 1. M. Chakraborty, Advocate. 2. Sri. Prabir Kumar Basu, Advocate. 3 & 4. Mrs. Geeta Handa Khanuja, Advocate. -ORDER- S.Majumder, Member.
This complaint filed by the Complainant, Sri Aniket Dey alleging medical negligence and deficiency in service relating to the treatment towards him by the OPs.
The facts of the Complainant in a nutshell are during August, 2003 the Complainant felt severe pain in his waist region and consulted the OP no-1-doctor for medical treatment at the medical unit of the Rotary Club of North Calcutta on 20.08.2003. On physical examination the OP-1 came to the conclusion that the surgery is required in his kidney and advised that a Double DJ Stent (a chemically treated plastic pipe) having no-5 and size 5F had to be implanted in the body of the Complainant. He was further advised for urine test and USG of the affected region. After reviewing the USG the OP-1 advised certain medicines and also advised to get himself checked up by the OP-1 at the OP-2-hospital on 20.09.2003 and to purchase a double DJ Stent having no 5 and size 6F for the purpose of surgery on the kidney. The Complainant has alleged that the size of the DJ Stent as prescribed by the doctor in his two prescriptions varied. At the OP-2-hospital the Complainant paid a sum of Rs.35 for check up and as such became a consumer of both the OP-1 and 2. It has been stated by the Complainant that reviewing him at two different places and advising the same treatment and medicine is a definite proof of unfair trade practice. As the pain of the Complainant increased he again got himself checked up by the OP-1 and the said doctor advised him to get himself admitted at the OP-2 hospital and further advised to purchase a DJ Stent of 6F-26cm and a guide wire. The Complainant accordingly purchased the same from K.R. Lynch for the purpose of surgery.
On 05.12.2003 the OP-1 operated upon the Complainants kidney at the OP-2 hospital. The surgery which was conducted upon the Complainant was called Cystosecopy. The Complainant has alleged that the surgery was conducted by the OP-1 without conducting any IVP/IVU test which is considered a mandatory test for any surgery of kidney.
It has been stated by the Complainant that in the surgery, instead of implanting of the DJ Stent in the body of him the OP-1 implanted a catheter into his body, but neither the OP-1 nor the OP-2 have mentioned that a catheter was implanted. Before surgery the OP-1 had suggested that the DJ Stent would be implanted in the lower abdominal area of him, however after the surgery the Complainant found that a catheter was implanted in the penis of him. The change in area of the operation without the consent of him or the family member and planting a catheter in place of DJ Stent is a clear act of deficiency in service on the part of the OP-1 & 2. As the Complainant not being free from severe pain complained to the OP-1, who prescribed certain pain killers to reduce the pain. Subsequently, the condition of the Complainant deteriorated as there was bleeding from the operated area on closer examination it appeared that there was puss and blood clots near the operated area as such the OP-1 advised the Complainant for admission with the Kalidas Mullick Sevayatan which is also known as Suborno Banik Samaj. After treatment at there from 13.12.2003 to 16.12.2003 though his high fever was reduced, the severe pain from which he was suffering from had not been reduced and for this reason he was brought to the chamber of the OP-1 on 22.12.2003, but the said doctor refused to treat the patient on the ground he belongs to the lower middle class and the OP-1 treated only the rich patients and according to the Complainant such disregard is a clear act of deficiency in service on behalf of the OP-1. As his health did not improve he was treated by his house physician who diagnosed his condition as septicemia and treated accordingly for several weeks.
Thereafter the Complainant went to the OP-3 on 03.01.2004, who after checking advised for IVU test and after perusing the said report on 08.01.2004, the Complainant was advised for further surgery at the OP-4-hospital. As the Complainant paid all the bills raised by the OP-3 &4, he became a consumer so far as the OP-3 and 4 are concerned. On 10.01.2004 he underwent another surgery by the OP-3 at the OP-4-hospital for removal of the catheter placed by the OP-1 and further DJ Stent was implanted in the body of the Complainant. But inspite of such removal and implantation the pain continued and as such for better treatment the Complainant went to Christian Medical College, Vellore, where the doctors after checking him came to a conclusion that the treatment of the OPs were based on negligent diagnosis as the Complainant was suffering from Arthritis and had no trouble so far his kidneys were concerned. The allegation of the Complainant is that due to wrong and negligent surgery by the all OPs he could not be removed from his ailments and in such negligence the OPs have a great role. Therefore filing this complaint before this Commission he has prayed for direction upon the OPs to pay him a sum of Rs.25,00,000/- as compensation for mental and physical harassment, to give direction to the OP-1 to refund all the charges paid by the Complainant, to give direction to the OP-1 to stop unfair trade practice and the Complainant has also claim litigation cost of Rs.25,000/- from the OPs.
The OP-1 raised objection by filing written version against the complaint filed by the Complainant contending that for the treatment the Complainant paid only Rs.35/- to the OP-2 towards the registration charges and such contribution could not be classified as a consideration for availing services and such services would not fall within the ambit of service u/s 2(1)(O) of the C.P. Act, 1986. The OP-1 has stated that he has provided a gratuitous service to the Complainant and hence the Complainant is not a consumer as per the Consumer Protection Act. The OP-1 has denied all the allegations as mentioned in the complaint and prayed for dismissal of the same.
The OP-2 filing written version against the complaint has contended that no charge has been taken from the Complainant on account of surgery and the Complainant only paid Rs.35/- to it only for registration of his name, so the Complainant cannot be termed as consumer under the Consumer Protection Act, 1986. The OP-2 also prayed for dismissal of the complaint.
The OP nos-3 and 4 in their written version have also denied the entire allegations made by the Complainant and prayed for dismissal of the complaint.
The Complainant and all the OPs have filed evidence on affidavit, questionnaires and replies, brief notes of argument and etc. On careful perusal of the record and entire documents it is seen by us that it is true that during August, 2003 the Complainant feeling severe pain in his waist region consulted the OP no-1-doctor for medical treatment at the medical unit of the Rotary Club of North Calcutta on 20.08.2003. On physical examination the OP-1 came to the conclusion that the surgery is required in his kidney and advised that a Double DJ Stent (a chemically treated plastic pipe) having no-5 and size 5F had to be implanted in the body of the Complainant and he was further advised for urine test and USG of the affected region. After reviewing the USG the OP-1 advised certain medicines and also advised to get himself checked up by the OP-1 at the OP-2-hospital on 20.09.2003 and to purchase a double DJ Stent having no 5 and size 6F for the purpose of surgery on the kidney. The Complainant has alleged that the size of the DJ Stent as prescribed by the doctor in his two prescriptions varied. At the OP-2-hospital the Complainant paid a sum of Rs.35 for check up and as such became a consumer of both the OP-1 and 2. The OP nos-1 and 2 have stated that mere payment of Rs.35/- to the OP-2 towards registration charges, the Complainant cannot be termed as consumer. In this respect we are to say first of all that though the size of the DJ Stent as prescribed by the OP-1 in two prescriptions varied, the Complainant purchased the same only one time and therefore such variation cannot be termed as deficiency in service. Secondly, in the questionnaires the OP-1 has stated that the Complainant underwent the treatment under him, who on behalf of the Rotary Club has organized a charitable clinic and was providing a gratuitous service and the operation was done in the OP-2 hospital where the OP-1 provided a gratuitous service. In reply the Complainant remained in silent, simply denied. We have noticed that the Complainant failed to produce any payment voucher relating to his treatment and operation provided by the OP-1 and 2. As the pain of the Complainant increased he again got himself checked up by the OP-1 and the said doctor advised him to get himself admitted at the OP-2 hospital and further advised to purchase a DJ Stent of 6F-26cm and a guide wire. The Complainant accordingly purchased the same from K.R. Lynch for the purpose of surgery. On 05.12.2003 the OP-1 operated upon the Complainants kidney at the OP-2 hospital. The Complainant has alleged that the surgery was conducted by the OP-1 without conducting any IVP/IVU test which is considered a mandatory test for any surgery on kidney. The OP-2 has asked the Complainant in its question no-6 that whether this opinion of the Complainant is based on any proper expert evidence or opinion or not. The Complainant kept himself silent. However we have noticed that in this respect the Complainant did not file any expert opinion or any medical ethics in support of his contention to prove that without IVP/IVU test, surgery on kidney cannot be performed and which is also mandatory. Regarding medical negligence we may mention to a judgment passed by the Honble Supreme Court, reported in 2006, CTJ, 662 in the case of Sikha Nayek vs. Dr. Manabesh Pramanik, where Their Lorships have held that 'a case of medical negligence has to be proved by proper medical expert's evidence; it cannot be based on mere statements of a patient or patient party.' Another judgment passed by this Commission, reported in 2001 (2) CTJ 368, where it has been held that since there was no expert evidence to prove that the operation was the proximate cause of cerebral attack resulting in death no negligence could be attributed to the OPs-Doctors. In the case in hand there is nothing on the record that conclusively proves whether there was any negligence or deficiency in service on behalf of the OP-1 and 2 relating to the treatment and surgery. Therefore the allegations leveled against the OP nos 1 & 2 have no legs to stand.
It has been further stated by the Complainant that in the surgery, instead of implanting of the DJ Stent in the body of him the OP-1 implanted a catheter into his body, but neither the OP-1 nor the OP-2 mentioned that a catheter was implanted. Before surgery the OP-1 had suggested that the DJ Stent would be implanted in the lower abdominal area of him, however after the surgery the Complainant found that a catheter was implanted in the penis of him. The change in area of the operation without the consent of him or the family member and planting a catheter in place of DJ Stent is a clear act of deficiency in service on the part of the OP-1 & 2. In this respect the Complainant failed to adduce any experts view that instead of DJ Stent implantation of catheter is not permitted as per medical ethics. But the OPs have filed the opinion of Prof. (Dr.) Arunava Chowdhury, F.R.C.S. (Edinburgh), F.A.C.S. in Urology and an eminent author of various Medical Texts on Urology, who is of the opinion that failure to insert DJ Stent in case of impacted stone and temporary stenting with ureteric catheter later to be changed to DJ Stent is in practice. In the instant case the OP-1 tried to insert DJ Stent, but being failure only ureteric stenting was done by ureteric catheter in December, 2003. The Complainant has stated that without taking consent from the Complainant or from his family members the catheter was implanted, but in this context also the Complainant has failed to adduce any evidence whether the consent is necessary or not.
Thereafter, as there was due to bleeding from the operated area the condition of the Complainant deteriorated, on examination it appeared that there was puss and blood clots near the operated area as such the OP-1 advised the Complainant for admission with the Kalidas Mullick Sevayatan which is also known as Suborno Banik Samaj. After treatment though his high fever was reduced, the severe pain from which he was suffering from had not been reduced and for this reason he was brought to the chamber of the OP-1 on 22.12.2003. The allegation of the Complainant is that the said doctor refused to treat the patient on the ground that he belongs to the lower middle class and the OP-1 treated only the rich patients and according to the Complainant such disregard is a clear act of deficiency in service on behalf of the OP-1. In this respect we are of the opinion that though the Complainant has made such serious allegation against the OP-1, failed to produce any cogent evidence in favour of such allegation. Thereafter he was treated by his house physician who diagnosed his condition as septicemia and treated accordingly for several weeks. The Complainant did not file any prescription of his house physician and no where in his complaint disclose the name of the said house physician.
Thereafter the Complainant went to the OP-3 on 03.01.2004, who after checking advised for IVU test and after perusing the said report on 08.01.2004, the Complainant was advised for further surgery at the OP-4-hospital. On 10.01.2004 he underwent another surgery by the OP-3 at the OP-4-hospital for removal of the catheter placed by the OP-1 and further DJ Stent was implanted in the body of the Complainant. But inspite of such removal and implantation the pain continued and as such for better treatment the Complainant went to Christian Medical College, Vellore, where the doctors after checking him came to a conclusion that the treatment of the OPs were based on negligent diagnosis as the Complainant was suffering from Arthritis and had no trouble so far his kidneys were concerned. The allegation of the Complainant is that due to wrong and negligent surgery by the all OPs he could not be removed from his ailments and in such negligence the OPs have a great role. Dr. Arunava Chowdhury, an expert in this filed has opined that DJ Stent was inserted for better healing of the unhealthy ureter. The Complainant was asked by the OP nos-3 and 4 in their questionnaires (Q no-36) that what proof does he possess regarding negligent diagnosis by the OP nos 1 to 4? In reply the Complainant has stated that he has filed the necessary documents and proof before this Commission. Actually the Complainant did not file any evidence to prove the negligent diagnosis provided by the OP nos 1 - 4. The Complainant was further requested by the OP nos 3 and 4 to produce the full and complete hospital record of Christian Medical College, Vellore. But the Complainant did not file any document and record of the Christian Medical College, Vellore. Therefore we are unable to hold that the complainant was suffering from Arthritis and had no trouble so far his kidneys are concerned. As the said report is not before us we cannot draw the conclusion that the OPs were in negligent providing treatment to the Complainant. The Complainant filing this complaint before this Commission has prayed for direction upon the OPs to pay him a sum of Rs.25,00,000/- as compensation for mental and physical harassment, to give direction to the OP-1 to refund all the charges paid by the Complainant, to give direction to the OP-1 to stop unfair trade practice and the Complainant has also claim litigation cost of Rs.25,000/- from the OPs. In this context we are of the opinion that the Complainant has failed make out any case regarding medical negligence and deficiency in service on behalf of the OPs in the context of treatment and surgery, No evidence has been adduced by the Complainant in the case in hand to prove such negligence of the doctors and the hospitals. Therefore the Complainant is not entitled to get any compensation and litigation cost from the OPs. Regarding refund of all the charges from the OP no-1 paid by the Complainant, we are of the clear view that no document has been filed by the Complainant to show us that he has made entire payment to the OP 1 and 2. The Complainant only paid a sum of Rs.35/- to the OP no-2 as registration charge. Apart from this no payment was made towards the treatment and surgery. Treatment and surgery were done free of cost by the OP no-1 and 2. Therefore as no payment was made by the Complainant, question of refund does not arise.
We may mention to a judgment passed by the Hon'ble National Commission, reported in 2004 CTJ, 175, (CP) (NCDRC), where their Lordships have held that 'As per settled law on medical negligence, it has to be alleged as to which action of the doctor was not as per accepted medical practice and what was done should not have been done or what was not done should have been done, this has to be supported by expert evidence or available medical literature on the subject. Therefore the Complainant's allegations have not been proved. The Ld. Counsel for the OP nos 3 and 4 has referred to a judgment passed by the Hon'ble National Commission, reported in 2006 (2) CPJ 348 (NC), where Their Lordships have held, 'As per law laid down by the Hon'ble Supreme Court in catena of judgments that the cases of medical negligence fall in a category of its own and they need to be proved with the help of expert opinion.' In a very recent judgment passed by the Hon'ble National Commission, in a case between Upasana Hospital and Another vs. S. Farook, reported in II (2007) CPJ 235 (NC), where the said Commission have held that without any expert evidence produced by the Complainant for alleged negligence, onus lies on the Complainant to prove the same.' Therefore in connection of the allegations made by the Complainant that the Ops were negligent and deficient in providing medical treatment to the Complainant, but in this context the Complainant has failed to produce any experts opinion regarding wrong treatment and gross negligence made by the OPs in writing before this Commission. The Complainant also failed to show us any medical authorities/books in support of his contention that due to maltreatment of the OPs he has suffered loss and injury and so he is not entitled to get any amount towards compensation and other reliefs as prayed for in his complaint.
Having regard to the entire discussion made above we are constrained to hold that the charge of negligence or deficiency in service against the OPs has not been substantiated from the materials on record. We see no merit in the Petition of complaint and we dismiss the same on contest. However, considering the circumstances we do not pass any order as to cost. The office is directed to issue the copy of this judgment upon the recorded Advocates of all the parties immediately free of cost. With the above observation the complaint be disposed of accordingly.
(S. Majumder) (Justice. A. Chakrabarti) MEMBER PRESIDENT