State Consumer Disputes Redressal Commission
Smt. Suchitra Das vs Dr. Soumo Swarup Chatterjee on 9 February, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/567/2017 ( Date of Filing : 31 Jul 2017 ) 1. Smt. Suchitra Das W/o Ram Chandra Das, Vill. & P.O. - Raghudebpur, P.S. - Uluberia, Dist. Howrah, Pin - 711 322, W.B. ...........Complainant(s) Versus 1. Dr. Soumo Swarup Chatterjee Attached with Calcutta Medical College & Hospital, 88, College Street, Kolkata - 700 073. 2. Head of the Dept., Regional Institute of Opthalmology, Dept., Health & Family Welfare, Calcutta Medical College & Hospital 88, College Street, Kolkata - 700 073. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER PRESENT: Ms. Keka Chakraborty,Mr. Uttiya Saha, Advocate for the Complainant 1 Mr. Subrata Mondal, Mr. Barun Prasad, Advocate for the Opp. Party 1 Dated : 09 Feb 2023 Final Order / Judgement
HON'BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT This is an application under section 17 of the Consumer Protection Act for deficiency in service and unfair trade practices filed by the complainant Smt. Suchitra Das.
The complainant Smt. Suchitra Das has filed the instant complaint case praying for the following reliefs :-
"In the above premises it is therefore prayed that Your Lordship may be kind enough to admit this complaint and issue notice upon the opposite parties and after hearing be pleased to pass an order directing the Opposite Parties jointly and severally to pay a compensation to the tune of Rs.30,00,000/- to the complainant for her permanent loss of vision in her right eye, for committing medical negligence in performing cataract operation and may be further pleased to pass any such other orders, for the ends of justice."
The brief facts of the case are that on 31/05/2016, the complainant accompanied by her husband and son went to Opposite Party No. 2 Hospital and their she had been medically examined by the Opposite Party No. 1 Dr. Soumo Swarup Chatterjee on 31/05/2016 for the first time. The Opposite Party No. 1 Doctor had advised the complainant with some eye drops and further suggested the complainant to come next to him to check up on 06/09/2016. On 06/09/2016, the complainant had duly visited the said Opposite Party No. 1 Doctor and after thorough check up, the Opposite Party No. 1 had told that the complainant had been suffering from cataract disease in the right eye as a layer had developed in the right eye of the complainant which cannot be cured by way of medicines or spectacles or lenses and further advised the complainant to visit further on 21/10/2016. As per advice of the Opposite Party No. 1 Doctor, on 21/10/2016, the complainant again visited the Opposite Party No. 2 hospital and there she had been again medically treated and checked up by the Opposite Party No. 1. On that day, the Opposite Party No. 1 had advised the complainant to undergo cataract operation on her right eye and also advised the complainant for getting admitted at the institution of the Opposite Party No. 2 on 25/10/2016 for right eye cataract operation. The Opposite Party No. 1 Doctor had suggested the complainant for thorough check up for her cardiac problem and the complainant on 09/09/2016 had duly done all prescribed cardiac and pathological reports and in those reports no significant cardiac problems were located / referred and the health of the complainant was in good condition for operation.
Further case of the complainant is that as guided and advised by the Opposite Party No. 1 Doctor, the complainant on 25/10/2016 had duly been admitted with the Opposite Party No. 2 Hospital at 4.20 p.m. The Opposite Party No. 1 under medical institution of Opposite Party No. 2 had duly performed the cataract operation in the right eye of the complainant on 26/10/2016. Thereafter, the complainant was shifted to general bed and the Opposite Party No. 1 had assured the complainant that the said operation was a successful one and soon within a few days the complainant shall get back her vision and could see all the things as she used to see previously before getting affected with cataract disease.
Further case of the complainant is that the complainant then got discharged from the Opposite Party No. 2 Hospital on 27/10/2016 with final diagnosis of her right eye cataract with surgery status showing right eye PPV dislocated and the Opposite Party No. 1 also advised the complainant to wear dark glass for six weeks. The Opposite Party No. 1 also advised several medicines and eye drops to the complainant.
Further case of the complaint is that the complainant had duly followed all the advice and had taken all the medicines as prescribed by the Opposite Party No. 1 Doctor. The complainant had put on dark glass on her eyes for six weeks but unfortunately, the vision of the complainant had not improved. The complainant observed that her right eye vision is becoming blurred and hazy more than it was before the operation.
On 04/11/2016 the complainant again visited the Opposite Party No. 1 Doctor at the Opposite Party No. 2 Hospital and narrated the Opposite Party No. 1 all her difficulties regarding her vision in her right eye. The Opposite Party No. 1 there assured the complainant that slowly her vision shall be clear and nothing wrong about it. But days passed by and months passed by but the right eye vision of the complainant was deteriorating day by day and in the end the complainant had totally lost her vision in her right eye due to unskilled cataract operation performed by the Opposite Party No. 1 under the Opposite Party No. 2 Hospital.
Further case of the complainant is that then the complainant several times visited the Opposite Party No. 1 Doctor at the Opposite Party No. 2 Hospital for her check up but the Opposite Party No. 1 always made false assurances to the complainant that her vision shall be back soon. This occurred for three months after the operation of the cataract in the right eye of the complainant.
The complainant totally lost her vision in her right eye. The complainant then visited one Dr. Jyotirmoy Dutta on 05/12/2016 where the said Doctor namely Dr. Jyotirmoy Dutta told the complainant that her right eye have been damaged and the vision of her right eye shall never be recovered. Dr. Jyotirmoy Dutta also made observations that "Aphakia dislocated 10L removed" also felt pity for her loss of vision on her right eye. Dr. Dutta also told the complainant that it would be very difficult for him to recover her vision in her right eye but the Doctor will try his level best by using various medicines and eye drops but ultimately the said Doctor failed to recover the vision of the right eye of the complainant. In all prescriptions issued by Dr. Jyotirmoy Dutta, he had written "sorry" for right eye which is a conclusive proof of total loss of vision of the right eye of the complainant.
Further case of the complainant is that the complainant was in heart broken position. The complainant through her son first lodged a written complaint before the West Bengal Medical Council, Salt Lake on 10/05/2017 against the Opposite Parties for their medical negligence and again personally on 17/05/2017 but till date no reports from West Bengal Medical Council has been received by the complainant.
Further case of the complainant is that it is for the unskilled and unprofessional operation performed by the Opposite Party No. 1 under the institution of Opposite Party No. 2, the vision of the right eye of the complainant had totally lost for which the complainant had become a disabled person with permanent disablement of her right eye vision. The Opposite Parties should be held liable for the acts of medical negligence upon the complainant for which the complainant had suffered a lot in the manner of permanent loss of vision in the right eye of the complainant.
For the unskilled acts of the Opposite Parties, the entire family of the complainant had been ruined both mentally as well as financially as huge expenses had to be borne by the complainant and her family members for her treatment of her right eye.
Hence this complaint case.
The Opposite Party No. 1 Dr. Soumo Swarup Chatterjee entered appearance in this case and was contesting the case by filing written version denying the material allegations in the petition of complaint. His specific case is that on 31/05/2016, the complainant came at the Opposite Party No. 2 Hospital with the complaint of right eye of vision where the Opposite Party No. 1 examined the patient thoroughly and medicines were prescribed. After proper investigation, the Opposite Party No. 1 gave note in the prescription that the patient suffered with posterior subcapsular cataract, the patient was hypermetropic, hypertensive and all these factors were predisposed of to posterior capsular rent in cataract surgery.
Further case of the Opposite Party No. 1 is that pre operative counselling was done to the patient and guarded visual prognosis was explained to the patient which can be revealed from the OPD ticket where GVP note was given on 09/09/2017. The post capsular rent is a dreaded complication in cataract surgery and it occurs in 2 to 3 percent of time (PEYMEN).
Further case of the Opposite Party No. 1 Doctor is that PCR is treated with vitrectomy Mellow at all shown the percent of retinal detachment 16% (PEYMEN). The complication which the complainant suffered was not very uncommon in that surgery and the Opposite Party No. 1 doctor performed the surgery work as per standard medical protocol and there is no fault, imperfection, deficiency or negligence regarding treatment of the complainant. Phacoemulsification with a ruptured posterior capsule occurs 2-3% of the time 15.16 and is the most common indication for an anterior vitrectomy that a general ophthalmologist will encounter. The anterior vitrectomy technique is determined by the point during cataract surgery at which vitreous loss is noted and by the extent of vitreous loss. Vitreous loss is the movement of vitreous outside the globe through the surgical wound. Vitreous prolapsed is the movement of vitreous into the anterior chamber through the anterior capsulorhexis resulting from a rupture in the posterior capsule. In general, the sooner the surgeon notices vitreous prolapsed, the smaller the anterior vitrectomy that will be required to treat it.
Further case of the Opposite Party No. 1 is that there is no question of principles of res ipso loquitor as records clearly show that the patient received a thorough check up, all others made to help the patient to recover. Therefore, this is not a case but it is a case of unfortunate complications and in such situation the case of medical negligence cannot be established and the complainant is not entitled to claim any compensation against the Doctor. Hence the Opposite Party No. 1 prayed for dismissal of the complaint case.
The Opposite Party No. 2 did not appear and did not contest the case though notice was duly served upon him. As such, the case was proceeded ex parte against the Opposite Party No. 2.
Both the parties filed their respective evidence on affidavit in support of their case, exchanged interrogatories and also brief notes of arguments.
Upon hearing both sides and on perusal of the pleadings of both sides, the following issues were framed for proper adjudication of the case.
Issues :
i) Is the complaint case maintainable ?
ii) Are the Opposite Parties guilty of deficiency in service as alleged by the complainant ?
iii) Is the complainant entitled to get any relief and / or reliefs, if any, as prayed for ?
Decisions with reasons :
Issue No. 1 :
This issue is taken up first for consideration.
Learned Lawyer for the Opposite Party No. 1 has urged that the complainant is not consumer. So, the complaint filed by the complainant is not maintainable in law. In support of his argument, he has relied upon the decision reported in 2022 Live Law (S.C.) 781.
We disagree with the argument that the complainant is not a consumer as the Opposite Party No. 2 is a Govt. hospital. It was held by Hon'ble Supreme Court in V P Santha's Case 1 (1996) CLT 81 (SC) and Savita Garg's Case IV (2004) CPJ 40 (SC) that Govt. hospitals are also liable for medical negligence. Recently, Hon'ble Supreme Court in the case of V. Krishnakumar Vs. State of Tamil Nadu, Civil Appeal No. 8065 of 2009, decided on July 1, 2015 held the Govt. of Tamil Nadu is responsible for medical negligence caused in the Govt. Hospital.
In such situation, the submission as made by the Learned Advocate appearing for the Opposite Party no. 1 cannot be accepted and the ruling cited by the Learned Lawyer appearing for the Opposite Party No. 1 is not applicable in the instant case.
This issue is thus decided in favour of the complainant and against the Opposite Party No. 1.
Issues No. 2 & 3 :
These two issues are taken up together for consideration for the sake of brevity and their inter relatedness.
Learned Lawyer appearing for the complainant has urged that the Opposite Party No. 1 under medical institution of Opposite Party No. 2 have duly performed cataract operation in the right eye of the complainant on 26/10/2016 and the complainant was discharged from the Opposite Party No. 2 hospital on 27/10/2016 with final diagnosis of right eye cataract with surgery status showing right eye PPV dislocated. The Opposite Party No. 1 also advised the complainant to wear dark glass for six weeks and further the Opposite Party No. 1 also advised several medicines and eye drops to the complainant. The complainant followed all the advice as prescribed by the Opposite Party No. 1. But unfortunately, the vision of the complainant had not improved, the complainant slowly observed that her right eye vision is becoming blur and hazy more than it was before the operation. The complainant several times visited the Opposite Party No. 1 and 2 for check up but the Opposite Party No. 1 always made false assurance to the complainant that her vision shall be back soon. The complainant totally lost her vision in her right eye. Thereafter, the complainant visited one Dr. Jyotirmoy Dutta on 05/12/2016 where the said Doctor told the complainant that her right eye vision has been damaged and vision of her right eye shall never be recovered. It is for the unskilled and unprofessional operation performed by the Opposite Party No. 1 under the Opposite Party No. 2 hospital. The vision of the right eye of the complainant had totally lost, for which the complainant had become a disable person with permanent disablement of her right eye vision. So, the Opposite Parties No. 1 & 2 should be held liable for the acts of medical negligence. So, the complaint should be allowed.
On the other hand, Learned Lawyer appearing for the Opposite Party No. 1 has urged that the complaint case is not maintainable in law. He has further urged that no expert evidence has been lead by the complainant to prove and substantiate the complaint case. Mere allegation will not prove medical negligence.
He has further urged that West Bengal Medical Council formed one committee and decided the allegation levelled against the Opposite Parties No. 1 & 2 and the West Bengal Medical Council had submitted the report. The said report has not been challenged by the complainant. The complainant also did not prefer any appeal against the said report submitted by the West Bengal Medical Council. So, the complaint case should be dismissed.
Having heard the Learned Advocate appearing for both the parties and on perusal of the materials on record it appears to us that it is an admitted position that the complainant was suffering from right eye vision and the complainant visited the Opposite Party No. 1 for treatment of her right eye. It is also an admitted position that on 06/09/2016 the complainant visited the Opposite Party No. 1 and after thorough check up the Opposite Party No. 1 had told that the complainant has been suffering from cataract disease in the right eye as a layer had developed in the right eye of the complainant which cannot be cured by way of medicines or spectacles or lenses and further advised the complainant to visit his chamber further on 21/10/2016. Accordingly, on 21/10/2016 as per the advice of the Opposite Party No. 1, the complainant again visited the institution of Opposite Party No. 2, there she had been again medically treated and checked up by the Opposite Party No. 1. It is also an admitted position that on that date Opposite Party No. 1 advised the complainant to have to undergo cataract operation in the right eye. It is also an admitted position that on 26/10/2016, the Opposite Party No.1 under medical institution of the Opposite Party No. 2 had duly performed the cataract operation in the right eye of the complainant. It is also an admitted position that the complainant was discharged from the Opposite Party No. 2 hospital on 27/10/2016 with final diagnosis of right eye cataract with surgery status showing right eye PPV dislocated. It is also an admitted position that after operation the complainant visited the Opposite Party No. 1 to follow-up the operation.
In the instant case, the complainant has alleged that due to medical negligence on the part of the Opposite Party No. 1 she lost vision in her right eye. The Opposite Party No. 1 has denied the allegations of the complainant, rather asserted that the Opposite Party No. 1 adopted correct line of treatment as per the symptoms and there was no negligence or deficiency in service. Thus the material question which arises for consideration is whether there was any negligence or deficiency in service on the part of the Opposite Party No. 1.
In case of medical negligence, the specific allegations regarding negligence on the part of the Doctor have to be proved and onus of which lies on the complainant. A professional charged with the negligence is to show that he acted in accordance with general and approved practice. Negligence cannot be attributed to a Doctor so long as he performs his duties with reasonable skill and competence. The Doctor has discretion in choosing treatment which he proposes to give to the patient, but such discretion is relatively ampler in cases of emergency. Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1 considered as to what constitutes medical negligence and laid down as under :-
"Negligence is the breach of a duty caused by Commission 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."
"2. Negligence in the context of medical 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 from 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 acceptance to the medical profession of that day, he can 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 experience of men has found to be sufficient; a failure to use specia or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged the light of knowledge available at the time of the incident, and at the date of trial.
3. A professional may be held liable for negligence on one of the 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 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 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) 1 W.L.R. 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 from the basis for prosecution.
6. The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.
7. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service or determining per sufficiently explained the liability for negligence within the domain of criminal law. Res ipsaloquitur has, if at all, a limited application in trial on a charge of criminal negligence".
In Jacob Mathew (supra) the three Judge Bench of Hon'ble Supreme Court elaborating on the degree of skill and care required of a medical practitioner quoted Halspbury's laws of England (4th Edition Vol.30 para 35) as follows :
"35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way."
In Martin F. D'Souza Versus Mohd. Ishfaq 1(2009) CPJ 32 (SC), Hon'ble Supreme Court observed as under :-
"From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful."
"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission".
"Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse."
It is well settled principle of law that a physician cannot assure the patient of full recovery in every case. A surgeon cannot guarantee that the result of surgery would invariably be successful, much less to the extent of 100% for the person operated upon. 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 the 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. A medical practitioner cannot be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment, in choosing one reasonable course of treatment, in preference to another. A medical practitioner would be liable, only where his conduct fell below that of the standards of a reasonably competent practitioner of such field.
The facts of the present case are to be analysed in the light of the proposition of law laid down in the afore discussed authorities.
From the evidence adduced by the parties it appears to us that the Opposite Party No. 1 under the medical institution of the Opposite Party No. 2 had duly performed the cataract operation in the right eye of the complainant on 26/10/2016 and after that the complainant was shifted to general bed. The complainant was discharged from the Opposite Party No. 2 hospital on 27/10/2016.
It is also in evidence that the complainant had been treated medically and checked up by the Opposite Party No. 1 on several occasions. It is also in evidence that prior to surgery the Opposite Party No. 1 suggested that the complainant for thorough check up for her cardiac problem and the complainant on 09/06/2016 had duly done all the prescribed cardiac, pathological reports and in those reports no significant cardiac problems were located and the health of the complainant was in good condition for operation.
Therefore, we find that the pre-surgical medical work up in respect of the complainant / patient was done. Therefore, it may be concluded that the Opposite Party No. 1 took proper care prior to surgical operation and the Opposite Party No. 1 was not careless and negligent in giving advice to the complainant which was required to be followed in pre operative stage. This conduct of the Opposite Party No. 1 proves that he applied his mind in taking care of his patient, i.e. the complainant. The Opposite Party No. 1 took proper care and was not negligent at all. The Opposite Party No. 1 brought his task to a reasonable degree of skill and knowledge and exercised a reasonable degree of care.
The case of the complainant is that it is for unskilled and unprofessional operation performed by the Opposite Party No. 1, the vision of right eye of the complainant had totally lost. But it is the evidence of the complainant on affidavit that the complainant visited the hospital of the Opposite Party No. 2 and the Opposite Party No. 1 examined her medically on 31/05/2016 for the first time. She has further stated in her evidence that on 06/09/2016 again she visited the Opposite Party No. 2 hospital and she was examined again on 06/09/2016. On 21/10/2016 as per the advice of the Opposite Party No. 1 she again visited the Opposite Party No. 2 hospital and was medically treated on 21/10/2016 and the Opposite Party No. 1 advised the complainant for admission for right eye cataract operation on 25/10/2016.
It is also in evidence that the complainant was admitted on 25/10/2016 and the operation was done on 26/10/2016. The complainant was discharged on 27/10/2016. On 04/11/2016 after operation the complainant visited the hospital and narrated the difficulties to the Opposite Party No. 1 Doctor. The complainant on several times visited the Opposite Parties No. 1 & 2 for check up. If the story, as propounded by the complainant is correct, then the complainant would not go to the same Doctor for further treatment on several times.
It is the case of the complainant that the complainant through her son first lodged a written complaint before the West Bengal Medical Council, Salt Lake on 10/05/2017 against the Opposite Parties for their medical negligence and again personally on 17/05/2017 the complainant lodged complaint.
Record goes to show that the West Bengal Medical Council decided the complaint lodged by the complainant and submitted their report. The report is in the record. The said report goes to show that the West Bengal Medical Council conducted enquiries and submitted their report. The report submitted by the West Bengal Medical Council is reproduced as under :-
"The PE Committee opines that it is very much unfortunate that the patient has lost her vision after cataract surgery, but it is documented complication of cataract surgery even after best effort. So the case may be dropped.
Decision of the West Bengal Medical Council in their meeting held on 14_06_2018 The Council noted the observations of the concerned P & E Cases Committee that (a) all the pre-operative investigations for cataract operation were carried and were within normal limits, (b) following dislocation of PCIOL, immediate pars planning vitrectomy with removal of IOL and iridectomy was done following standard management protocol, (c ) the patient was referred to RRC (Urgent) following diagnosis of bullous retinal detachment and (d) the reported incidence of symptomatic sub location or dislocation of an IOL after uncomplicated cataract surgery is well documented and for all ages and gender groups, eyes that have undergone cataract surgery have four fold higher risk of rhegmatogenous retinal detachment in comparison to fellow eye. The Council accepted the recommendation of the concerned P & E Cases Committee that the unfortunate loss of eyesight in the instant case is that of a documented complication even after best efforts and accordingly, decided to close the case with intimation to all concerned."
The said report has not been challenged by the complainant by filing written objection. The complainant also did not prefer any appeal against the said report submitted by the West Bengal Medical Council before any higher forum.
In such situation, the said report may be considered as correct and true. On consideration of the said report submitted by the West Bengal Medical Council it can safely be held that there was no negligence or deficiency in service on the part of the Opposite Party No. 1 Doctor.
There is no question of principles of "res ipso loquitor" as the record clearly shows that the patient received a thorough check up, all efforts made to help the patient to recover. Therefore, it is clear that there was no negligence but a case of unfortunate complications and in such situation, case of medical negligence cannot be established.
Learned Lawyer appearing for the complainant has argued that prior to operation 'No informed consent' was obtained from the patient / or from her relatives. So, there is deficiency in service on the part of the Opposite Party. We fail to accept such contention of the Learned Advocate appearing for the complainant as because the complainant has nowhere stated in the complaint case that the Opposite Party did not obtain Consent Form prior to operation. From the evidence produced on record, it also appears that there is no evidence or record about the said Consent Form. The complainant has come out with a concocted and afterthought version about the Consent Form. Therefore, the submission of the Learned Lawyer cannot be accepted.
In view of the above facts and circumstances, we have no hesitation in observing that the complainant has failed to prove that there was any medical negligence on the part of the Opposite Party No. 1 at the time of performing surgery on her right eye or post operative treatment.
In the result, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed.
The parties concerned be communicated of the order accordingly.
The complaint case is thus disposed of accordingly.
[HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER