CONSUMER CASE NO. : 121/S/2007. DATED : 18.12.2009.

BEFORE PRESIDENT : SMT. ANITA DEBNATH,

Ex-Member of W.B. Higher Judicial Services and

Addl. Dist. & Session Judge,

President, D.C.D.R.F., Siliguri.

MEMBERS : SMT. PRATITI BHATTACHARJEE

&

SRI ASIT RANJAN DAS.
COMPLAINANT : SRI AJIT KUMAR ROY,

S/O Sri Narayan Chandra Roy,

Addressed at South Deshbandhu Para, Pipe Line,

P.O. & P.S.- Siliguri, Dist.- Darjeeling (W.B.).

O.Ps. 1. : DR. AMITABH MISHRA,

BBS Aastha, C/O. Unit : Madan Ganga Nursing

Home, Beside Royal Motor, Sevoke Road,

P.O. & P.S.- Siliguri, Dist.- Darjeeling (W.B.).



2. : THE ADMINISTRATOR,

BBS Aastha, C/O. Unit : Madan Ganga Nursing

Home, Beside Royal Motor, Sevoke Road,

P.O. & P.S.- Siliguri, Dist.- Darjeeling (W.B.).
3. : THE MANAGING DIRECTOR,

BBS Mediscanners Private Limited,

Registered Office : 79/27, AJC Bose Road, Kolkata.


FOR THE COMPLAINANT : Sri Suresh Kumar Mitruka, Advocate.

FOR THE OPs : Sri Bijoy Saha, Advocate.

J U D G E M E N T

This is a case under Section 12 of the Consumer Protection Act, 1986 for realization of compensation to the tune of Rs.9,00,000/- and other incidental cost as incurred.

That on 02.12.05 at about 3.30 p.m. one Smt. Gouri Rani Roy aged about 56 years was arranged to be taken to Siliguri Sub-Divisional Hospital for her medical treatment in respect of her suffering from some weakness and she was advised by the doctor to get



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her better treatment in a Nursing Home in stead of Sub-Divisional Hospital and she was also advised for CT Scan of her brain.

Accordingly, she got admission to one BBS Mediscanners of Siliguri, a unit of the OP No.3 for getting the CT Scan in her brain through her son, the complainant. Accordingly, she was admitted in the Nursing Home under the care of the OP No.2 on 02.12.05 for her better treatment. The OP No.1, the doctor attended the complainant’s mother on the self same date and he informed that some blood has been clotted in her brain and some medicines are required to be undertaken for clearing the said blood clotting with an assurance for her recovery very soon within 6 – 7 days.

The mother of the complainant was under the treatment of the OP No.1./Dr.Mishra. In spite of assuring for recovery very soon and admitted in the said Nursing Home under the treatment of the OP No.1 no improvement was noticed within 6 – 7 days as assured. The OP No.1 prescribed several blood tests for his mother and same was conducted by the said BBS Mediscanners of Siliguri on 03.12.07 on the requisition of the OP No.1. On seeing the report he was informed by the OP No.1 that WBC count and Nutrophils count of his mother is little bit excessive unnecessary and necessary medicines were prescribed for count down the WBC and Nutrophils in normal condition. As per advice of the doctor, the OP No.1, the ECG was conducted on 03.12.07. Meanwhile the mother of the complainant faced difficulties in talking and got reply irrelevantly without giving proper answer and she started to loose her memory. Subsequently, after a few days complainant’s mother lost her memory and failed to talk completely. Despite such physical condition it was informed to the complainant by the OP No.1 that his mother was stable in condition and made response by moving her body with an assurance for recovery very soon. The OP No.1 then prescribed some medicines and injections in the name as ‘Pipzo’ and ‘Linospan’ G on 09.12.05. As per advice of the said doctor/OP No.1 the complainant made arrangement to get the said medicines from the market by paying a sum of Rs.1,900/- and on regular basis since 09.12.05 onwards. The further case of the complainant that his mother started to make vomiting whatever she used to eat as per advice of the OP/doctor and she was given food through food pipe. His mother was again advised to get CT Scan in her brain by the OP No.1 and CT Scan was undertaken from the BBS Mediscanners on 09.12.05 by removing their from at the centre of CT Scan. On perusal the said report of the said CT Scan he was informed by the OP No.1 the blood clot has started to remove from her brain and she was in stable condition. His mother was again advised for some blood tests and such blood test was conducted through BBS Mediscanners on 11.12.05. As per said report the WBC count



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and Nutrophil count has not been reduced or come down in normal condition rather they have increased. The OP No.1 assured that by increasing the dose of the medicine WBC count and Nutrophil count would come to its normal condition. Although the complainant was not so satisfied about the physical condition of his mother but he believed the version of the OP No.1 as true and waited for her recovery.

The further case of the complainant is that in spite of repeated request to the OP No.1 for taking consultation with some other doctors if he so desire but the OP No.1 did not agree and did not pay any heed about the request as made by the complainant. It has been further informed that his mother got some infection due to some catheter and also assured that it would be cured very soon. But without any further improvement the physical condition of his mother became deteriorated and some breathing problem was started. On seeing her breathing trouble he requested the OP No.1 for providing Oxygen help but it has been avoided by the OP No.1. Even repeated request was made to the OP No.1 for shifting his mother in ICU Ward, the said OP No.1 did not pay any heed shifting his mother to any ICU Ward for better treatment. On 12.12.05 the complainant requested the OP No.1 to check up his mother through one Dr. Malay Chakraborty but at first no consent was given for check up through Dr. Malay Chakraborty and ultimately on several request through his near relatives and well wishers such consent was given by the OP No.1 for check up through Dr. Malay Chakraborty who then came to the Nursing Home for check up to his mother but the OP No.1 was not then present. The OP No.1 then took the assistant of one Dr. Sekhar Chakraborty with regard to the treatment of his mother as he was a visiting doctor of the said Nursing Home. Again OP No.1 and the said doctor Sekhar Chakraborty prescribed for some blood test, Chest X-ray and accordingly it was conducted on 14.12.05 by the said BBS Mediscanners and X-ray was conducted on 15.12.05 by North Point X-ray Centre of Siliguri. The said report also speaks about the increase of WBC count and Nutrophil count in stead of coming down to normal condition. On 16.12.05 the OP No.1 went on leave for a period of 7 days keeping his mother under the care of one Dr. G.C. Ojha who was also the visiting doctor of the said Nursing Home. Ultimately, as per advice of Dr. S. Chakraborty two bottles of blood have been transmitted to his mother but no development was noticed. In the meantime Ultra Sonography was conducted and it has come to his knowledge that his mother was suffering from Gall Bladder stone. Ultimately, Dr. Sekhar Chakraborty referred his mother to Anandaloke Hospital, Kolkata for her better treatment on 21.12.05 and he was informed that his mother was suffering from Septicemia. While the complainant was ready to take his mother for Apollo Hospital all on a sudden the OP No.2 demanded a



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sum of Rs.60,000/- towards the treatment and while the complainant expressed his inability to pay the said sum and ultimately on the request of several other well wishers he paid a sum of Rs.25,000/- so as to release his mother from the said Nursing Home and then his mother was taken to Apollo Hospital and got admission there on 22.12.05 at about 7-30 A.M. in ICU Ward. The attended doctor at Apollo Hospital at Kolkata disclosed that the physical condition of his mother is not so good and 80% parts of the complainant’s mother had already been damaged and his mother would not survived for more than one or two days and ultimately, the mother of the complainant took her last breathing on the same day on 22.12.05 at about 9-40 p.m. and left for Heavenly abode. The dead body of his mother was released there from by paying a sum of Rs.38,977.46/- and brought the same on 24.12.05 for her last cremation.

It is further case of the complainant that after the expiry of his mother the complainant demanded copies of Bed Head Tickets and treatment sheet as provided upon the mother of the complainant by the OP No.2 from 02.12.05 to 21.12.05 but they did not provide the same in order to get wrongful gain. So, the complainant issued a letter dated 08.03.07 to the OP No.2/Nursing Home with a request to provide the said treatment sheet but no reply was received there from.

The OP No.1 did not treat his mother properly even she has not been advised for proper Blood Test and other medical tests and as such the OP No.1/The doctor concerned is not acquainted with required treatment as noted to his mother. It has been further urged that the mother of the complainant since deceased was admitted under the management and care of the doctor/the OP No.1 who handed over the treatment under the management of Dr. G.C. Ojha without notice and went on leave. Since proper treatment has not been under taken upon the mother as a result of which death took place on 22.12.05 due to fault on the part of the OP No.1/the doctor concerned as the management of the treatment was handed over to Dr. G.C. Ojha this sort of activities of the OP No.1 and the other OPs/the Nursing Home amounts to deficiency in service and negligence on their part. As a result of which death of the mother took place. Thereby it causes mental pain, sufferings and harassment to the complainant. Hence this case supported by affidavit.

The case was contested by the OP No.1/Dr. Amitabha Mishra by putting W/V denying each and every allegation as made therein with a specific defence that the OP No.1 is a doctor by profession having speciality in the filed of Neuro-Surgery and have possessed degrees from several Medical Colleges and also possessed highest medical degree in the line of medical field in India. The case is barred by law of limitation as the



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case has been instituted long after the cause of action and more than two years have already been expired.

It has been further stated that the patient, the mother of the complainant was treated free of service without taking or receiving any fees. Thereby the complainant does not come under the purview of Consumer as provided under the law. It is further alleged that proper remedy lies before the Civil Court having jurisdiction thereon as because the case in question is a complicated one and voluminous document is to be considered. It is specifically pleaded no assurance was given to the complainant about the recovery of his mother within six or seven days. But in fact the condition of the patient was in a critical condition and there was live risk. On seeing the condition of the patient and on the basis of report of the CT Scan the size of the clot was increased for which Pypzo or Linospan were started on 14.12.05 and it was not under taken on and from 09.12.05. Since the condition of the patient became critical he never assured or stated to the complainant about the stable condition of the patient. Different types of medicines were under taken according to the physical condition of the patient concerned for precautionary measures. As the patient party wanted and requested for a second opinion through Dr. Malay Chakraborty, Neuro-Surgeon, the said doctor was called on then and there. It is categorically stated that Oxygen was provided in time. Since Dr. G.C. Ojha was requested for the management of the patient concerned during his leave the patient was property treated by the said doctor and other associate doctors. There is no part of negligence or deficiency on his part. On the basis of deterioration of physical condition of the patient she was referred to other hospital for better management. He all along followed the established protocol or method of treating the patient and the same was duly confirmed by other two Neuro Surgeon and as such the case is liable to be dismissed with cost.

OP No.2/The Authorized Signatory of B.B.S. Astha and Manager of the Nursing Home contested the case by putting W/V supported by affidavit denying each and every allegation as made therein with a specific allegation that the case is not maintainable and the case lies before the Civil Court as voluminous document and evidence is to be considered. Since the complainant expressed his desire to shift his mother for her better management he was requested to clear the bills of the Nursing Home amounting to Rs.60,000/- but the complainant expressed his inability to pay the said sum. Even with the intervention of Senior Advocate of Siliguri Sri Ashok Kumar Basu, the Nursing Home Authority agreed to take the medical bill only and demanded a sum of Rs.25,000/- which would not covered the full amount under the medicine bills and /or Nursing Home



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charges. It is further specifically stated that a sum of Rs.5,400/- was waved as per request of Senior Advocate, Mr. Basu. The complainant assured to pay the balance amount after returning from Kolkata but to avoid the full payment the instant case has been instituted only to harass the OP. The Instant case has also been filed with motivation to lower down the reputation of the Nursing Home and also to avoid the payment of the amount as outstanding. The patient concerned got admission on 02.12.05 and was discharged there from on 21.12.05. As there is no cause of action for sue and all the allegations are false and fabricated the case is liable to be dismissed with cost.

OP No.3 contested the case by putting separate W/V supported by affidavit denying each and every allegation as made therein with a specific defence that the case is not maintainable the remedy lies before the Civil Court. It is further alleged that the patient got admission in the Nursing Home with the history of ‘Hemorrhagic Stroke’. BBS Mediscanners is a Pvt. Ltd. Company and BBS Astha is partnership firm and the management of the two units are completely separate. Since BBS Mediscanners is a well reputed Diagnostic Centre of Siliguri the question of collusion does not lie. The instant case has been filed motivatedly having no medical knowledge and also for illegal gain. As there is no deficiency on the part of the OP No.3 the case is liable to be dismissed with cost.

Upon consideration of the pleadings of the respective parties the following issues are framed for adjudication :-

1) Is the case maintainable ?

2) Is the case barred by limitation ?

3) Has the Forum any jurisdiction to try the instant case ?

4) Is there any deficiency of service or Unfair Trade Practice on the part of the OPs ?

5) Is the complainant entitled to get decree as prayed for ?

6) To what other relief/reliefs as sought for ?



Points No.1, 2 & 3.



The Ld. Advocate on behalf of the OPs advanced argument that the case is barred by limitation and it has not been filed within two years from the date when cause of action arose.

It is evident that the mother of the complainant got admission to Madan Ganga Nursing Home on 02.12.05 and got her discharge from the said Nursing Home on 21.12.05.



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Section 24(A) of the Consumer Protection Act, 1986 as amended provides for limitation period. It lays down that the District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

When the patient was discharged from the Nursing Home on 21.12.05 cause of action for sue on the plea of medical negligence already starts. So, the case ought to have been filed by 21.12.2007 i.e. within two years from the date on which the cause of action has arisen. But the instant case was filed on 24.12.07 in place of 21.12.07. So, it is evident there was alleged delay of three days. But on scrutiny of the List of Holidays published by the Government of West Bengal it reveals that 21.12.07 was Id-Uz-Zuha and the office remains closed due to such holiday. 22nd and 23rd December, 2007 were also declared regular holidays being Saturday and Sunday. The instant case has been filed on 24.12.07 i.e. on the reopening date of office concerned and when the case has been instituted on the reopening date after regular holidays and declared holidays under the law of limitation the case can be instituted on the reopening date. Therefore, the case as instituted on 24.12.07 does not hit by law of limitation. Therefore, the argument as advanced by the Ld. Advocates of the OPs is not entertainable and thereby the case is not barred by law of limitation.

It is further urged by the Ld. Advocate on behalf of the OP that this is a case of medical negligence voluminous documents and evidence are to be lead in the instant case and proper remedy is Civil Court.

There is no doubt that the Statute does not contemplate the determination of complicated issues of fact involving taking of elaborate oral evidence and adducing of voluminous documentary evidence and a details scrutiny and assessment of such evidence. But the Statues under the Act have vested the Forum with the power to examine witness on oath and to order discovery of the documents. But such power is to be exercised in cases where the issues involved are simple such as defective quality of any goods, purchased or any shortcomings or inadequacy in the quality, nature and manner of performance of a service which the Respondent has contracted to perform for consideration. More so, the Provisions of this Act, 1986 are in addition to and not in derogation of any other law for the time being in force.

Section 2(1)(d) defines ‘Consumer’ which means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any users of such goods.

Sub-Clause (ii) defines hires or avails of any services for a consideration which has



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been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of services for consideration.

Herein the instant case the sole contention of the complainant that the service as rendered by the OP No.1/the doctor concerned who actually treated the mother of the complainant did not perform his duty and despite assurance for surviving his mother shortly he did not make any treatment properly consequence of which death of his mother follows. Even the Nursing Home concerned or BBS Mediscanners also did not perform their service properly to the mother of the complainant and issued huge bill without furnishing proper bill despite repeated request for issuing bills with regard to the medicines and other tests as under taken from them. But no such response was made by the OP No.2 & 3. Thereby they are also negligent in rendering service upon the mother of the complainant for which the alleged case of medical negligence was filed against all the OPs. In this context it has been urged by the OP No.1 that free service has been provided upon the mother of the complainant and no professional fees was received either from the complainant or from the Nursing Home. Thereby the complainant can not come within the definition of ‘consumer’ as provided under the law. On scrutiny of the medical papers and it is not the case of the Nursing Home concerned that gratuitous service was under taken to the patient concerned, the mother of the complainant. Rather it is the defence case that at the time of discharging the patient concerned who was referred to other hospitals for better management on 21.12.05 demanded a huge sum of Rs.60,000/- towards Nursing Home charges, medicines and other tests as under taken to the patient concerned. If that be so, when the OP No.2 claimed Nursing Home charges it includes the doctors’ fees also and no scrap of paper has been furnished that the patient concerned was treated gratuitously and/or free of charges. Rather it is the defence case that with the intervention of Senior Advocate of local Bar the complainant was allowed to release the patient on payment of only Rs.25,000/- and some amount was waved. If that be the position, how it would be considered that the patient concerned was treated free of charges or professional fees. It is not the case of the complainant or the OP that the doctor/the OP No.1 was treated at the personal interest of the complainant concerned. Rather it is evident that the patient concerned was admitted in Madan Ganga Nursing Home/the OP No.2 under the care of Dr. Amitabha Mishra, the OP No.1 or any other doctor as settled either by Dr. Mishra or by the Nursing Home. If that be so, the case of free of charges or gratuitous treatment does not lie.



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Under this facts and circumstances, when service was hired on consideration and availed of on consideration the complainant being the beneficiary of the patient i.e. son of the patient comes within the purview of ‘consumer’ as provided under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.

It further reveals when service alleged to have been rendered not properly and there is allegation of short performance of service as rendered by the OPs towards the patient and denial thereof on the part of the OPs the nature of dispute obviously comes within the purview of ‘consumer dispute’ as provided under Section 2(1)(e) of the Consumer Protection Act, 1986.

On careful consideration of materials on record and the evidence as led by the respective parties we do not find the dispute in concerned is a complicated one and thereby it does not justified to refer the instant case to the Civil Court having jurisdiction thereof for consideration. Further we are of the view that it justifies to dispose of the case before this Forum for the allegation of medial negligence on the part of the OPs.

Considering all the facts and circumstances, in the light of our reasoning as made hereinbefore we are of the view that the complainant is a ‘consumer’ under the law and the case is quite maintainable in law and the case also does not barred by law of limitation.

Thus the issues are decided in favour of the complainant.



Point No.4, 5 & 6.



In a case of medical negligence the Ld. Advocate on behalf of the complainant advanced argument that the OP No.1/Dr. Mishra is not the authorized to treat the patient as services of neurology doctor was necessary. When the patient got admission with the history of haemmarogic stroke with right side weakness the OP No.1 did not utter any single statement in his testimony that he is practicing doctor in the line of neurology. The patient/Smt. Gouri Rani Roy has not found any symptoms so as to provide her surgery after her admission. Since the OP No.1 is a Specialist and practicing in the field of neuro surgery the treatment under a neurologist was essential to attend the patient. So, without providing neurologist and treated by neuro surgeon like Dr. Mishra is not proper and his service has been provided only to commercial gain.

It is further urged that on seeing deterioration of the health of the patient day by day she has not been provided or get her admission in ICU even Oxygen was also not provided in time. But considering her physical condition and when no improvement was noticed on the treatment as under taken by Dr. Mishra/the OP No.1, the patient



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concerned was ultimately transferred to ICU only on 12.12.05 and Oxygen inhalation was started as a precautionary measure. In this context it has been mentioned further that Dr. Atanu Biswas, the Expert witness categorically stated in a case of haemmarogic stroke management of treatment by providing nutrition oxygenation either through nose or sometime by ventilator necessitates to improve the health condition of the patient concerned. If all these services were provided just after admission of the patient the result would be otherwise than that of the fatal as taken place in the case of the complainant. So, it is clear according to the complainant requisite services of ICU and oxygenation to the patient was not provided in time and thereby allowed the condition of the patient to be deteriorated. Such type of service as rendered towards the patient comes within the purview of deficiency of service as provided under the law. In course of treatment since after admission the patient concerned suffered from Urinary Tract Infection and Septicemia and if the Nursing Home or the OP No.1/the doctor concerned advised for making treatment with a Physician doctor for precautionary measure to prevent Urinary Tract Infection and Septicemia the result would not be fatal or otherwise.

It is further urged that service of Dr. Sekhar Chakraborty was taken long after the admission of the patient and if the service was allowed to take earlier or just after admission of the patient there may not be case of Urinary Tract Infection and Septicemia.

It is further urged that Expert doctor categorically stated in his evidence in a case of haemmarogic stroke there is scope of having Urinary Tract Infection and Septicemia if the syringe or urinary catheter or cannula used to patient are contaminated. So, burden lies upon the OPs to disprove that such Urinary Tract Infection and Septicemia was not caused due to contaminated syringe or urinary catheter or four (iv) cannula.

Initially, the patient concerned was not a heart patient or heart disease but from the Death Certificate it has been recorded one of the cause of death was the ischemic heart disease. But no advice was given for Blood Sugar test at any point of time and it was only advised by Dr. Sekhar Chakraborty on 19.12.05 i.e. after a lapse of 17 days and from the Blood Sugar report it appears that the patient concerned was suffering from high Blood Sugar. So, the nature of treatment as under taken by the OP No.1 clearly comes within the purview of negligent and allowed the physical condition of the patient concerned to be deteriorated and proper treatment was not under taken since after admission.

It has been further urged that excessive doses of medicines administered.

It has been further urged that the bill as raised by the OP is excessive and does not



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disclose the Batch number or the date of manufacturer or expiry date in the bills as raised by the OP/Nursing Home. Thereby the OPs/Nursing Home is not entitled to get a huge amount as asked for or shown in the bill in concerned.

It has been further urged that Bed Head Tickets and other document as called for from the OP No.2 did not supply for verification of the complainant about the amount as charged for.

It has been further urged without producing relevant documents by the OP No.2 demanded a huge sum of Rs.60,000/- from the complainant at the time of discharge of the patient concerned and only to avoid their liability causing wrong treatment the patient was referred to other hospitals in the pretext of better management. But the patient concerned was discharged at the last stage as disclosed by the doctors of the Apollo Gleneagles.

The Ld. Advocate on behalf of the OP No.1/Dr. Mishra it has been urged in a case of medical negligence none can be entangled on the basis of presumption or assumption. Negligence as put is to be established and can not be presumed as decided in 1999 III CPJ 9 N.C. in the case of Kanhair Kumar Singh Vs M/S Park Medical and Research Centre.

No Expert has been examined by the complainant to prove his case that there was medical negligence on the part of the OP No.1 and the mother of the complainant has not been properly treated by him. Until and unless the same be proved by cogent evidence the case of the complainant with regard to medical negligence or deficiency in service can not stand as because the Courts and Consumer Fora are not experts in medical science and must not substituted their own views over that of specialist as it has been decided in the case of Martin F. Dsuza Vs Md. Ishfaque reported in 2009 Vol.-I C.T.J. 352 (Supreme Court).

It has further been argued that in a land mark Judgement of the Supreme Court reported in 2005 Criminal Law Journal 3710 (S.C.) in the case of Jaccob Mathew Vs State of Punjab and another it has been held that a Physician would not assured the patient of full recovery in an every case. A Surgeon can not and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100 % for the persons operated on. But only assurance which such a professional can give can be understood to have been given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and will undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what a person approaching the professional can expect.

It has been further argued that when the OP denies or disputes the allegation



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contained in the complaint the dispute is to be settled on the basis of the evidence brought by the complainant and the OP or to decide the case Ex-parte where OP omits or fails to take any action to represent his case.

It has further been argued that the complainant’s sole grievance is that proper treatment has not been undertaken by the OP No.1 and nature of treatment as required has also not been communicated to the complainant. From the evidence as laid by the brother of the complainant it is crystal like clear as per evidence as led by him that he was quite aware and he has learnt the nature of treatment as given by the OPs to his mother.

Further it is the moot question whether standard treatment of protocol for a patient suffered from haemmarogic stroke (right basal) ganglionic bleed with sub-arachnoids hemorrhage with intra ventricular hemorrhage has been under taken or not. In this regard Dr. A. Biswas, the Head of the Department, N.B.M.C. & H categorically stated in his evidence that standard protocol of treatment has been followed by the OP No.1 in treating the mother of the complainant/Smt. Gouri Rani Roy. Further OP W No.3/Dr. Malay Chakraborty also categorically stated in his evidence that the mother has also been treated properly as per standard treatment of protocol for which there is no need of interference with the treatment as undertaken and thereby advised to continue the same treatment.

Similar type of argument has been advanced on behalf of the OP No.2 i.e. on the part of the Nursing Home concerned and the OP No.3/B.B.S. Mediscanners.

The complainant in support of his contention has furnished several documents to prove his case.

It reveals by letter dated 08.03.07 the complainant requested Administrative Officer, BBS Astha/the OP No.2 for production of relevant medical papers from 02.12.05 to 21.12.05 with regard to treatment slip and other documents of the patient Smt. Gouri Rani Roy who got admission in their Nursing Home. The said letter was received by 08.02.07 by the OP No.3 by putting their official seal and signature. The complainant also furnished medical papers issued by Apollo Gleneagles from which it reveals that the patient got admission on 22.12.05 therein under the care of Dr. Dhiman Sen and subsequently the patient died on the self same date. Such document relates with the expenditure as incurred. All those documents filed by the complainant reflects that the different types of medical tests, blood test were conducted just after admission in the Nursing Home and CT Scan of brain dated 02.12.05. The report of CT Scan goes to show that the patient suffers from Intra Cerebral Hemorrhage, intra ventricular hemorrhage,



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sub arachnoids hemorrhage. Different types of blood tests were under taken on 03.12.05 and report of Hematology referred by Dr. A. Mishra was submitted by the BBS Mediscanners/the OPNo.3. It further reveals that report of clinical biochemistry was also obtained as per reference of Dr. A. Mishra. Report on Serum electrolytes was also obtained as per reference of the OP No.1. Another report regarding Serum electrolytes was also obtained on 6th December, 2005. Few CT Scan of brain was also under taken on 10.12.05. So, it is clear that as per advice of the Dr. Mishra/the OP No.1 several blood tests including CT Scan over brain were under taken and different types of medicines including Pypso and Linospan were also administered. Ultimately, the patient was referred to higher centre for better management. In this context it is the case of the complainant that all those medicines were administered in excess of its limit. When the patient was not responded or progressed in administering all those medicines she was not referred to other expert doctor for better management of the patient concerned. even on seeing the last stage of the patient concerned she was referred to other hospital for better management of the patient. Thereby the OPs tried to shift their liability causing harassment to the complainant. The complainant’s further case that on seeing the physical condition of the patient concerned it was opined by the doctors of Apollo Gleneagles that there is no chance of recovery and the patient was brought in death bed stage. The OP in this regard has submitted document issued by one Dr. Dhiman Sen, Consultant Physician Co-ordinator, Department of Internal Medicine, Apollo Gleneagles Hospital by his letter dated 07.11.09 addressed to the OP No.1/Dr. A. Mishra categorically stated that he never criticized his fellow colleague being fully aware that they always put in their best efforts in treating their patient and for foremost in the minds of all Physician is the patients well-being. From this letter the said Dr. categorically stated he never instigated any body against the condition of the patient concerned nor any criticized to his fellow colleague doctors. In this context it has been urged that no doctor can come forward to say against his fellow doctors. Rather the OP No.1 to avoid his conduct in shortcoming of treatment as undertaken upon the patient concerned made such request to the doctor concerned of Apollo Gleneagles. So the burden lies upon the complainant to prove by cogent evidence that such type of remark as to physical condition of the patient in a death bed condition or last stage made by the doctors of the Apollo Hospital but in support of his contention none has been examined in this regard that such type of criticize was made by the doctors of that hospital at Kolkata. When such type of stigma was put against the doctor/the OP No.1 by making such comment similarly it also lies upon the doctor concerned to disprove that no such comment was



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made by any doctor of Apollo Gleneagles at Kolkata.

Under this facts and circumstances, the comment/remark as made by the complainant with regard to last stage as commented by the doctor of Apollo Gleneagles has not been proved by cogent evidence.

The complainant led evidence and he was cross examined thoroughly. Against the question with regard to name of person of Apollo Hospital who made such comment of negligent treatment of his mother he categorically stated that all the doctors of Apollo Hospital, Kolkata who attended his mother told about the negligence and deficiency in services of the OPs. Such type of statements are vague one.

In this regard it has already been pointed it out that the complainant failed to prove his such case of making remark by the doctors of the Apollo Hospital, Kolkata by cogent oral and documentary evidence.

The complainant led evidence through his brother Dilip Roy in the manner as stated in the complaint.

On the other hand the OP No.1 led evidence as OP W No.1 and he categorically stated about the physical condition of patient concerned and what type of treatment was administered to the said patient.

The OPs also examined one Dr. Sekhar Chakraborty as OP W No.2. According to him he was called on in the evening of 14.12.05 by the management of BBS Astha at there request of Dr. A. Mishra. The said OP W No.2/ Dr. Chakraborty categorically stated in his evidence that the OP No.1/The doctor concerned advised for urine test, X-ray of the chest and referred the patient to him. On examining the patient he confirmed the diagnosis as made by the OP No.1/the doctor concerned as he already diagnosed as CVA with Septicemia and he accordingly advised for continuously all the said treatment as made by the OP No.1/the doctor concerned and such treatment of the patient was continued up to 21.12.05 and as per request of the patient party the patient was referred to it. Despite informing the patient party about the hazards of transport to Kolkata to the patient concerned did not pay any heed.

Dr. Sekhar Chakraborty against the question as put to him with regard to supporting the entire treatment as provided by Dr. Mishra he categorically answered in affirmative. Even he also made a reply about his findings on seeing and verification of the blood test and urine examination and other medical papers. He categorically stated that the patient was suffered from Anemia with septicemia. So, from his evidence it is crystal like clear that he can not be displaced with regard to supporting his treatment as undertaken by Dr. Mishra as wrong. With regard to medicine Udiliv Dr. Chakraborty



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categorically stated that such medicine was prescribed to the patient for ‘Calculus Cholecystitis and the maximum permissible dose of that medicine is 600 – 900 mg/day. He categorically stated infection is the condition there is active parsons of the organism in body. Septicemia is the condition having evidence of infection or it’s Toxin in blood and he categorically stated the nature of treatment required to be undertaken to the said patient was available to the BBS Astha/the Nursing Home for which there was no need to transfer the patient in any other institution or doctor.

Dr. Malay Chakrabory/the OP No.3 also led evidence that on examination the nature of treatment as undertaken was found as per standard treatment of protocol by Dr. Mishra for which there was no interference for the treatment as undertaken.

Dr. Malay Chakraborty/the OP No.3 led evidence further and in reply he categorically stated that he had talked with Dr. Mishra over mobile on 12.12.05 in the evening and he met the patient party on the night and he had been there in the night and he could not meet with Dr. A. Mishra on 12.12.05 at 10-30 P.M. as he was then O.T. When question was raised by the complainant about non-cooperation by the OP No.1 to Dr. Malay Chakraborty, OT Register was called for from which it reveals that Dr. Mishra/the OP No.1 was then OT from 9 p.m. to 11 p.m. So, in this regard the complainant has failed to prove that Dr. Mishra did not co-operate Dr, Malay Chakraborty with regard to the treatment of his mother, the patient.

The Ld. Advocate on behalf of the complainant attacked the case mainly on two heads :-

1) that the treatment has not been properly done and medicines as administered were in excessive dose.

2) No proper bill was served upon the complainant despite request for which non-cooperation to the complainant it amounts to deficiency of service and the bill amounts are the exaggerated one.

The OP No.1 in his evidence categorically stated that he is an MBBS and possessed degree in Medical Surgery (General Surgery) and is possessing highest medical degree in any medical field in India as he has done his M.Ch. (Neuro surgery from IMS). He has referred the Washington Manual of Critical Care with regard to suffering of ICH (Intra Cerebral Hemorrhage). It has been led down their that ICH may cause damage to the brain by several means. Hematomy interrupts Neuronal pathways blood and its brake down products are highly toxic causing caesuras electrolyte is DER arrangement fever and automatic changes. A renewal ruptured vessel is prone to recompiled. Lastly elevated Intra Canneal Pressure (ICP) due to hematomy and subsequent Adema may



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endanger other portion of the brain. All these toxin make ICH the step type of stroke with the highest mortality (35% to 50%) at 30 dose and morbidity.

It has further been referred the principles of neuro surgery (2nd Edition) edited by Settis Rengachari, MD, FRCS, SC similar opinion has also been opined there in that the extension of hemorrhage into the ventricular system is particularly important as it is assassinated with a mortality (65 – 75%) and all fatal hypertensions bleeds.

In principles of Neurology 7th Edition by Adam’s and Victors it has been observed that the while cell count in the peripheral blood may rise transiently to 50,000 per cubic mm. It has been further observed that minimum prognosis for large and minimum size cerebral clots is grave some 35% of patients die in 1 to 30 days. In Harison’s Principles of Internal Medicine 16th Edition the treatment has been prescribed therein the ICH can be treated either medically or surgically and if the patient can no longer by manage medically surgery the perform only. Medical therapy is made at correcting any underlying systematic disorders such as hypertension or as coagulopathy and controlling Intra Canneal Pressure using manistat hyper ventilation, steroids and barbiturates as indicated and elevating the head of the patient’s body to insure optimal cerebral venues drainage. Frequent neurological examination as well as CT Scan are indicated specially early in the clinical course to modify the therapeutic plan properly and introspect further deterioration by following neuralgic and radiographic strange. In the Lancet Hand Book of treatment of neurology as added by Charlse Warlow it has been led down that the most frequent complications are falls chest and Urinary Tract Infection (UTI) and pressure sores.

From the Bed Head Tickets at appears that the patient Gouri Rani Roy since deceased got admission on 02.12.05 with the history of CVA with right BG bleed with SAH with hypertension as professionally diagnosed by the OP No.1 and final diagnosis was made on various subsequent tests. From the Bed Head Ticket it appears that the patient concerned was advised for CT Scan of brain. ECG and different types of blood test and all those tests were under taken on various dates. It further reveals that initially the patient was conscious. Oxygen was started from 12.12.05 as it appears from the Oxygen chart. In this context it has been urged by the Ld. Advocate on behalf of the complainant that if Oxygen was started since after admission of the patient concerned the fatal measure may not occur. It has categorically urged that intensive care is to be provided at the earliest stage while the patient got admission therein. It has been pointed if out that at Page-887 Principles of Neurology as referred by the OP No.1 prescribes for treatment wherein it has been led down that management of patient with large Intra



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Cerebral Hemorrhage and coma includes the maintenance of adequate ventilation, use of controlled hyper ventilation 2aPCO2 of 25 – 30 mm/Hg. Monitoring of Intra Canneal Pressure in some case. It has been further pointed it out that referring Intro Surgery 2nd Edition that it is always advisable to insure ventilation excessively in the oral state of the treatment of trauma patient. Trauma may present additional problems in the evaluation and management of breathing. But all the Bed Head Tickets do not disclose that patient concerned was in coma stage rather documentary evidence supports that patient was conscious initially. It is true that the patient concerned got admission with haemmarogic stroke which can not be constituted as come stage. Failure to provide ventilation can not be considered as fatal effect.

In the instant case no expert was examined by the complainant to prove that the treatment as under taken by the OP No.1 and other doctors of the Nursing Home were wrong and proper diagnosis was not made by the OP No.1.

In CTJ Vol.-IV 2009 at Page 352 it has been held by our Apex Court in the case of Martin F D’suja Vs Md. Ishfaq that a Surgeon with shaky hands under fear of legal action can not perform as successful operation and a quivery Physician can not administered the end dose of medicine to his patient.

In Paragraph-34 it has been further held the low light medicine is an in executed science. One can not predict with certainty and out come of many cases. It depends on the particular facts and circumstances of the case.

Initially it has been held in the case of Jacob Mathew Vs State of Punjab and another reported in 2005 CTJ 1085 wherein it has been held the precautionary must bring to his degree. 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 competent is what the law requires.

In the instant case although the complainant did not examine any expert to disprove the defence case of the OP that the treatment was taken properly and orally ventilation and Oxygenation and blood test for sugar were essential. But the OP in order to substantiate their defence one Expert has been examined in the line of neurology. Dr. Atanu Biswas, the Head of the Department, Neurology, North Bengal Medical College & Hospital categorically stated in his evidence against the questionnaire as put by the complainant that the treatment as prescribed by the OP No.1 and provided in the Nursing Home was done and Standard Protocol of treatment in the case of the patient concerned has been followed. Although by way of cross-examination it has been stated that in a case suffering from haemmarogic stroke which oftens managed in ICU as



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this is a life threatening disease. It has been further stated the decision of placing the patient is taken by the treating Physician depending upon the severity of the patient’s condition.

In this regard the other doctors like Dr. Malay Chakraborty, Dr. Sekhar Chakraborty categorically stated in their evidence that Standard Protocol of treatment in the case of the patient concerned has been followed. It has already been reflected herein before that initially the patient concerned was conscious. So, it depends upon the physical condition of the patient concerned and also opinion of the doctor concerned under whose treatment the patient concerned got admission as to provide other supporting treatment like putting under ventilation and/or providing oxygen at the initial stage.

Several arguments have been advanced about the nature of the medicine as administered to the patient concerned were excessive beyond its limit. But none of the doctor’s even the expert concerned did not opine that all doses as administered were excessive beyond the limits of the dose of all those medicines. When all the doctors came before the Forum and led evidence supporting the treatment of the Dr. A. Mishra/the OP No.1 it can not be held that excess dose were administered to the patient concerned.

Be it mentioned here all those allegations have been made by the complainant and his brother who can not be held as expert concerned having knowledge of treatment in medical science they are nothing but a laymen they can not challenge the treatment as administered by the doctor concerned in the same line and in a case of haemmarogic stroke all the authors in Medical Sciences as reflected above categorically opined that in a case of haemmarogic stroke chance of survival is in doubt and it depends upon the condition of the patient concerned and it is a settled principle of law each case is to be decided on its own merits.

The Ld. Advocate on behalf of the complainant relied several decisions reported in 2001 CPJ 31 N.C. in the case of Bhajanlal Gupta and another Vs Mool Chand Khrarati, Ram Hospital and others wherein it has been held looking to the facts of this case, the Respondent No.4 had given detailed instructions to the staff-in-charge of ICCU. The patient had been put on Oxygen and was otherwise being monitored in ICCU, yet there were two very serious lapses, one of the Nurses not noticing that the Oxygen tube had come out and the other of delay of about two hours in intubating the patient. There was also a further lapse on the part of the nurse under being vigilant to insure that the Oxygen tube remained in place and if at all it is pulled out by the patient it was restored immediately. In cases of such grave and serious nature extra care and vigilance is



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required and lack of it can have serious consequence as it did in the present case (under reference).

In the instant case it has been urged that considering the condition of the patient concerned she should be kept in ICCU and provided Oxygen. But it has already been reflected about that the patient’s condition was then conscious initially and after her deterioration she has been provided Oxygen on and from 12.12.05. Further all the doctor concerned categorically stated that Standard Protocol of treatment has been followed and gave a decision of the treatment as already started. So, the decision as relied by the ld. Advocate on behalf of the complainant is not applicable in the instant case.

Several decisions reported in Vo.-I 2008 CPJ 360 (N.C.); Vol.-II 2008, CPJ, 232 N.C. have also been relied on wherein Hon’ble National Commission held that patient should be put on erroneously ventilation and discharged forcibly it means to share negligence on the part of the hospital concerned and the patient was allowed to sink from critical to fatal condition. But in the instant case that after admission to the Nursing Home all along medical check up, with various blood test and CT Scan were advised and all along such advice of the doctor concerned was followed up to the date of staying there i.e. 21.12.05. Ultimately, the patient concerned was referred to some other hospital for better management and accordingly, the patient was discharged on 21.12.05 and admitted at Apollo Gleneagles, Kolkata on 22.12.05 and ultimately she died therein on the self same date.

All the medical reports as diagnosed by Apollo Gleneagles are same in the line as already diagnosed by the OP No.1 and other doctors. No scrap of paper as already held herein before that the doctors of the Apollo Gleneagles made any observation that the patient concerned was taken at the last stage. Rather the Dr. Dhiman Sen of Apollo Gleneagles categorically made his comment that he did not make any comment against his colleague doctors of Siliguri.

When all the doctors coupled with the Expert Doctor clearly stated that treatment was made therein by the OP No.1 in terms of the Standard Protocol of treatment we do not find anything by which it can be said that wrong treatment was undertaken to the patient concerned by which all the OPs can be held as medical negligence or deficiency of service as alleged.

In all decisions as referred above it has been held that in a case of medical negligence Expert’s evidence is necessary. But the complainant in the instant case did not come forward to examine any expert in this regard to prove his case about the alleged medical negligence against the OPs. Although Dr. Atanu Biswas being an Expert



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in the line categorically stated that the treatment has been undertaken following the Standard Protocol of treatment in a case of haemmarogic stroke with Urinary Tract Infection and he has not been shaken in cross examination that the nature of treatment as undertaken was wrong contrary to the principles of law in the medical science as observed by the Authors of Medical Science.

Under this facts and circumstances, relying the decision reported in Jacob Mathew’s case and the case of the D’ Suza as referred hereinbefore we are of the view that when a patient has not favourably respondent to a treatment given by a doctor or a surgery as failed the Doctor can not 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 her or injury to the patient since the profession reputation of the professional would be at stake. Here in the instant case no evidence has come forth to say that to earn illegal gain various tests have been advised by the doctor concerned and it was undertaken properly by the OPs and directions have not been followed in terms of the prescription as prescribed by the OP No.1/the doctor concerned or other doctors who led an evidence specifically that proper treatment in terms of Standard Protocol of treatment in a case of haemmarogic stroke with Urinary Tract Infection and Septicemia has been followed and thereby the doctor concerned or the OPs/Nursing Home and the BBS Mediscanners can not be held medical negligent as alleged. Thereby the case in this count fails.

The complainant also alleged that bills were not supplied to the complainant in spite of his repeated demand.

Be it mentioned here that the case of the complainant is that patient was referred to other hospital for better management and a sum of Rs.60,000/- was demanded without supplying any bill. But subsequently, after return from Kolkata due to death of his mother, the patient concerned notice was issued to the OP No.2 received by OP No.3 but they did not supply the said bill. In support of his contention several medical papers, bills have been placed for appreciation that almost all medicines were supplied by the complainant. Even then huge amount was demanded by the OP No.2/the Nursing Home.

In this regard from the document i.e. notice it reveals that the notice was served upon the OP No.3. It has been urged that logo in the official seal of the OP No.2 and the OP No.3 are same and identical. Thereby proper notice was served upon the OP No.2.

The defence case is that both the concerned are separate unit and not identical.

The complainant has not furnished any document to show that OP No.2 and OP



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No.3 are same and identical. If Memorandum of Articles be placed for appreciation it can be ascertained that OP No.2 and OP No.3 are same and identical. By service of notice upon the OP No.3 it can not be said to have served upon the OP No.2. Therefore, no notice was served upon the OP No.2 as alleged.

Admittedly, a claim of Rs.60,000/- was demanded from the complainant at the time of discharge of the patient concerned. But according to the OPs due to intervention of senior Advocate of the local Siliguri Bar the patient was allowed to take from their Nursing Home to Kolkata on depositing a sum of Rs.25,000/- although the complainant did not admit the contention as pointed it out by the OP and the defence case in this regard. But in the evidence of Ashok Kumar Basu/OP W No.4 he categorically stated that in December, 2005 the complainant had approached him to talk to the Nursing Home Authorities of BBS Astha a unit of Madan Ganga Nursing Home to get his mother discharge from the Nursing Home as he was unable to pay the bill of Rs.60,000/- and on his request as well as the assurance the said Nursing Home Authorities agreed to take the sum of Rs.25,000/- and it was also assured that the balance amount would be paid by the complainant after returning from Kolkata.

The OP W No.5, Sri Bijoy Sarkar narrated at length about the service as rendered by the Nursing Home concerned and equipment as used towards the treatment as per advised by the doctor concerned for which the OP No.3 can not be held responsible for UTI and Septicemia.

It is true the Bill submitted by the Opposite Parties does not disclose how much medicines were used and there is no details of the medicines as supplied by the Nursing Home authority and each Bill is supposed to be disclosed with breakup about the date and quantity of Medicines with Batch No and name of the visiting doctor who and when attended and the fees as charged for each dates. Therefore, such bill as furnished can not be considered as Proper Bill in true sense for which it can not be said that the amount of Rs.60,000/- was due on the date of discharging the patient concerned also. More so no document is placed to prove/substantiate that the Bill was actually served upon the complainant.

Since it is not the defence case of realization of the said sum of Rs.60,000/- and when no proper notice was issued to the OP No.2 for furnishing the details of the Bills. It is evident rather proved that no bill as furnished before the Forum at the time of trial was actually served upon the complainant and unless by service of any proper Bill the claim alleged to have been made by the OPs is not at tenable. But admittedly there was some dues at the time of discharging the patient concerned and when it has been established



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by the OPs that with the request of other Advocates of the Local Bar the patient concerned was discharged from the Nursing Home we do not find any deficiency of service or Unfair Trade Practice on the part of the Nursing Home concerned and thereby the Forum is of the view that the complainant has failed to establish his case of Medical negligence by cogent, oral and documentary evidence.

In the result, the case fails and issues are disposed of accordingly.

Hence, it is,

O R D E R E D

that the Consumer Case No.121/S/2007 is dismissed on contest but without cost.

Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.