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                   Hence, we hold that the Complainant is a consumer, as defined in Section 2(1)(o) of the Act.

 

II.     

         Second question is - whether there was negligence and deficiency in service on the part of Opp.Party No.2 at the initial stage, i.e., on 30.1.1995 and 1.2.1995 in proper diagnosis/treatment and not referring the deceased to a cardiologist?

           

          In this regard, it is contended by the complainant that on 30.1.1995, the deceased visited Opp.Party No.2 for discomfort and heaviness in chest, sweating and pain.  ECG  showed Mild Eschaemia changes on lateral wall  which was noted by the Opp.Party No.2.   Despite this, Opp. Party No.2  did not advise the patient (deceased) to consult a Specialist/Cardiologist.  On the contrary, medicines for gastric trouble were prescribed.  This is nothing but deficiency in service on the part of Opp.Party No.2.

No.  But I advised him verbally to consult Physician and Cardiologist.
                  
                   The  aforesaid answer of Dr. Deb would clearly indicate that on the basis of the  ECG, the deceased was required to be informed to consult a Cardiologist.  Then the question would be: whether the  stand taken by  Dr. Deb  that he had  advised the deceased to consult a cardiologist / Physician   orally, can be believed?   In our view, normally a doctor is expected to write such advice in a medical book/prescription. Further, it is the allegation of the Opposite Parties that the deceased was a chain smoker and drinking heavily. If that was the position, and in case where the ECG was not found normal,  it was the duty of the Doctor to advise him in writing to consult the Cardiologist as well as to reduce smoking and drinking.
 
                    For this, it would be worthwhile to refer to the relevant part  in the cross-examination of Dr.Deb wherein he has stated   that he (Dr.Deb) has not advised late Chinmoy Bhattarchjee in writing to go to a cardiologist, but advised him verbally to consult Physician and Cardiologist; though not exactly the Medical Ethics may  permit to advise a patient verbally to go to a Cardiologist, but sometimes Doctors have to deviate from that by considering the position of the patient concerned; in spite of finding ischemic changes in the ECG, he did not refer the patient in writing to go to a cardiologist; and, he is not always duty bound to advise in writing; he is also not always duty  bound to examine the past medical records in the Medical Book of a patient; as late Chemnoy Bhattarcharjee was a close friend,  he did not  advised  in writing; even the normal ECG report cannot rule out heart diseases;  silent ischemic mainly occurs in diabetic patients, and patients do not feel any symptoms; it is correct that a patient with silent heart attack may go on his day-to-day business or normal work without understanding it; he had advised late Bhattacharjee to stop alcoholic drink and smoking at once and to go for further check up by physician/Cardiologist, and that this statement which he has made in his affidavit is not false or an afterthought.
           
          From the aforesaid cross-examination it is clear that Dr.Deb had noted that the deceased was having heart problem, as the ECG revealed Ischemic changes.   It can also be held that Dr. Deb was aware about the seriousness of the disease. In such case, in our view, it is not permissible for a  Doctor to prescribe medicines for gastric trouble. Proper treatment ought to have been given for heart problem or in any case in the light of the revelation of ECG he ought to have advised the patient  to consult a Cardiologist.    Dr. Deb  is also aware that even  the normal ECG report  cannot rule out heart disease.  Dr.Deb  also stated that he and the deceased were friends and knowing each other.  Then in such case, it was his duty to suggest the deceased to reduce smoking and drinking and he ought to have enquired subsequently whether the  patient had consulted the Cardiologist or had taken any  treatment from the Cardiologist. That was not done, and, finally, as a result of the deficiency  on the part of the Opposite Party No.2 in not advising the patient to  consult  a Physican/ Cardiologist, the patient received fatal massive heart attack and died.