State Consumer Disputes Redressal Commission
Ram Prasad Mondal vs Dr. Jayanta Sharma on 28 August, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/397/2013 (Arisen out of Order Dated 15/03/2013 in Case No. Complaint Case No. CC/44/2010 of District North 24 Parganas DF, Barasat) 1. Ram Prasad Mondal On his death his legal heirs Bula Mandal(Wife), Shubha Mandal(Son), Dipan Mandal(Son), Munsef Para, P.O. & P.S. Basirhat, North 24 Pgs., Pin-743 411. ...........Appellant(s) Versus 1. Dr. Jayanta Sharma VIP Road, Teghoria, North 24 Pgs., Kolkata - 700 157. 2. Uma Medical Related Institute VIP Road, Teghoria, North 24 Pgs., Kolkata - 700 157. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MRS. MRIDULA ROY MEMBER HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Ms. Runi Chakraborty, Advocate For the Respondent: Mrs. Romi Chatterjee, Advocate Mrs. Romi Chatterjee, Advocate ORDER
28/08/15 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, in case no.CC 44 of 2010 dismissing the complaint alleging medical negligence against the OPs.
The case of the Complainant/Appellant, in short, is that he was a patient under Dr. Jayanta Sharma since 2006 and on several occasions he visited his chamber for treatment of acidity, stomach ache and black stool. Sometime in second week of January 2008 the Complainant again felt severe pain in abdomen accompanied with black stool. He consulted Dr. Bitan Chatterjee who after examining him advised medicines and suggested endoscopy of the upper abdomen and directed the Complainant to consult a specialist for further treatment. The Complainant consulted Dr. Jayanta Sharma who advised admission of the Complainant in Uma Medical Related Institute Pvt. Ltd. and, accordingly, the Complainant was admitted in the said Nursing Home on 16/01/08 and released on 21/01/08. The treatment sheet of the said Nursing Home was not supplied to the Complainant. Subsequently, the Complainant faced similar problem and had been to the chamber of Dr. Jayanta Sharma on 29/01/08, 21/02/08, 08/04/08, 17/06/08 and 20/10/08. On every occasion Dr. Sharma suggested medicines and tests which were done as per his advice. Subsequently, the Complainant again faced the similar problem and as per the advice of Dr. Sharma was admitted in Uma Medical Related Institute Pvt. Ltd. on 25/12/08. Dr. Sharma conducted endoscopy followed by biopsy. It revealed that the Complainant was suffering from adenocarcinoma of stomach. Subsequently, the Complainant had been treated in C.M.C. Vellore and Tata Memorial Hospital wherein total "gastrectomy and esophagojujenostomy" was conducted. The OPs all along treated the Complainant negligently and failed to perform or advise endoscopy of abdomen as a result of which the severity of carcinoma increased to a great extent. Due to delayed detection of carcinoma the condition of health of the Complainant deteriorated. For the said reasons, the Complainant filed the complaint before the Learned District Forum.
The Learned Counsel for the Appellant/Complainant has submitted that the G.I. Endoscopy was not done and had it been performed earlier the presence of adenocarcinoma of stomach could have been detected earlier. It is contended that the omission to perform G.I. Endoscopy at the earlier stage itself shows negligence and deficiency in service on the part of the OPs. It is submitted that the expert report revealed that G.I. Endoscopy could have established the diagnosis and thereupon the specific treatment could have been started. It is submitted that because of the failure on the part of the OPs to conform to the established medical practice and procedure the adenocarcinoma of the Complainant reached stage IV. It is contended that the G.I. Endoscopy was ultimately done almost after one year and the patient had to undergo surgery at Bombay Hospital. The Learned Counsel for the Appellant has referred to the decision of the Hon'ble National Commission in RP 625 of 2006 [Dr. Niraj Awasthi vs. Jagdish Bharti, decided on 02/02/10].
The Learned Counsel for the Respondent has submitted that the patient refused to undergo endoscopy as it appears from the treatment sheet itself. It is contended that the complaint was filed by Ram Prasad Mondal, since deceased and the complaint stood abated. It is contended that the substitution was done at the District Forum. It is submitted that since the Complainant Ram Prasad Mondal who filed the complaint died during the pendency of the complaint, the right to sue did not survive. It is contended that the Complainant sustained injury and it was his personal injury. It is submitted that the expert body considered the bed head ticket and gave the specific opinion stating that there was no negligence. The Learned Counsel has referred to the decisions reported in III (2012) CPJ 253 (NC) [Malnad Hospital and Institute of Oncology Super Specialty Surgical Centre & Ors. vs. H. C. Eranna]; (1986) 1 SCC 118 [Melepurath Sankunni Ezhuthassan vs. Thekittil Geopalankutty Nair]; (1988) 1 SCC 556 [M. Veerappa vs. Evelyn Sequeira & Ors.].
We have heard the submission made by both sides and perused the papers on record. It appears that patient Ram Prasad Mondal died during the pendency of the complaint case and his legal heirs were substituted. In this connection we place reliance on the decision of the Hon'ble National Commission in the case of Dr. Niraj Awasthi vs. Jagdish Bharti (supra) wherein it has been observed as follows:
"....... The legal heirs of the deceased claimant were brought on record by legal fiction and that apart, claim brought by deceased was not a claim for this personal right. Legal heirs of deceased too, would be beneficiary in case complaint succeeds and hence we are driven to conclusion that right to sue petitioner is not extinguished with death of claimant, Jagdish Bharti."
Since the legal heirs were already on record by way of substitution the contention of Learned Counsel for the Respondent that the cause of action does not survive with the death of the patient, is not acceptable. Moreover, the cessation of the cause of action in case of personal action of the doctor arising out of surgery/treatment cannot be equated with sufferings and injuries and death of the patient and thereby non-survival of cause of action on the ground of personal action.
Secondly, it is the specific contention of the Complainant that G.I. Endoscopy was not done by the OPs at the earlier stage and it constituted negligence and deficiency in service. From the treatment sheets dated 16/01/08 and 18/01/08 it is clear that G.I. Endoscopy was advised by Dr. Sharma and in the treatment sheet dated 19/01/08 it was clearly mentioned that the patient was not willing to do upper G.I. Endoscopy there and wanted to get it done from Government Medical College and Hospital later on. It is, therefore, clear that the patient did not follow the advice of the doctor and because of such abstinence and non-cooperation the doctor cannot be saddled with medical negligence. The Learned District Forum rightly dismissed the petition of complaint and there is no merit in this Appeal.
The Appeal is dismissed. MA 512 of 2015 is also disposed of. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MRS. MRIDULA ROY] MEMBER [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER