Date of Filing: 14.09.2015 Date of Final Order: 07.07.2017
Sri Gurupada Mondal, President.
This is an application u/s 12 of CP Act, 1986 filed by Susanta Guha Roy against Dr. Balbant N.S. Laguri and Sunshine Nursing Home praying for compensation of Rs.5,00,000/-, medical expenditure of Rs.75,000/-, Rs.3,00,000/- for medical negligence and deficiency of service, Rs. 7,50,000/- for mental pain and agony and Rs.10,000/- as cost.
The case of the Complainant in short, is that his mother Mukti Guha Roy fell down at her residential house and then she was taken to OP No.1, Dr. Balbant N.S. Laguri with a complaint of severe pain and after examination, OP No.1 diagnosed that she was suffering fracture Trochantric Right and advised her that she required surgical fixation invariably for easy mobilization and accordingly, the mother of the Complainant was admitted at OP No.2 Nursing Home on 13.09.13 for surgery and paid Rs.75,000/- for the cost of surgery, pre and post operative care including the medicines.
Further case of the Complainant is that operation was performed on 14.09.13 by OP No.1 and informed the Complainant’s family members that the operation was successful and the mother of the Complainant was discharged on 16.09.13 after prescribing some medicines. Even after the surgery, the mother of the Complainant was feeling acute pain and her conditions started deteriorating and matter was informed to the attending nurse for call book of Dr. Balbant N.S. Laguri but the attending nurse did not pay attention and no life saving equipment was attached with her. It is alleged by the Complainant that the OP No.1 and 2 referred the patient at Shila Nursing Home at Cooch Behar on 16.09.13 and the patient died at 5.05 PM on the same date. It is also alleged by the Complainant that due to ordinary care and skill at the time of pre-operative and post-operative care, the mother of the Complainant died at Shila Nursing Home, Cooch Behar.
According to the Complainant, his mother Mukti Guha Roy died due to medical negligence and deficiency in service of the Ops and as such, the Complainant has filed this case for proper relief.
The OP No.1 and 2 have jointly filed w/v denying all material allegations contending inter-alia that the instant case is not maintainable. The Complainant has no cause of action to file this case and the Complainant has filed this instant case for illegal gain.
Specific case of the OP No.1 and 2 is that the OP No.1 is a Surgeon having Master Degree in Orthopedic as well as a reputed surgeon and practicing at Cooch Behar with unblemish carrier and Mukti Guha Roy was brought to OP No.1 on 13.09.13 with a history of fracture Trochanter (Right Hip joint) by falling and he advised for surgery (DHS) and the patient was of Hypertension with irregular treatment.
It is also alleged that the OP No.1 examined the fitness of the patient and performed uneventful surgery on 14.09.13 and had no complication on the part of the patient and was recovering. She had taken proper diet on 15.09.13 without any complaint.
Further case of the Ops is that on 16.09.13 at about 2.30 PM, it was informed that the patient was feeling uneasiness and breathlessness and then the OP No.1 examined the patient and noticed that the Blood Pressure reached to 200/110 and suspected to have developed CVA(Stroke) and then the patient was referred to Physician-cum-Cardiologist at Dr. P.K. Saha Nursing Home and since then, neither the patient nor her relatives contacted with the Ops and did not submit any information regarding further treatment and condition of the patient. The OP No.1 performed the operation perfectly and it was uneventful and had no negligence on his part. The entire allegations were false and baseless. It is also alleged that the Ops had no medical negligence and deficiency of service. On the basis of the aforesaid facts, the Ops pray for dismissal of this case with cost.
Considering the Complaint and written version against the Complainant, the following points necessarily come up for consideration.
POINTS FOR CONSIDERATION
- Are the Complainants Consumers as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainants?
- Whether the Complainants are entitled to get relief/reliefs as prayed for?
We have gone through the record very carefully and perused the evidence on affidavit of the Complainant. Perused the entire documents in the record also heard the argument advanced by the parties at a length.
DECISION WITH REASONS
Point No.1
Ld. Advocate for the Ops submits that the Complainant is not a consumer at all. Neither the mother of the Complainant and nor the Complainant paid package fee of Rs.75,000/- to the OP. The mother of the Complainant obtained the treatment free of cost and as such the mother of the Complainant was not a consumer. The Complainant in his Complaint petition has stated that he paid package fee of Rs.75,000/- to the Ops for the cost of surgery, pre-operative, post-operative care and expenditure of medicines. But the Complainant has failed to produce any document before this Forum that he paid Rs.75,000/- to the Ops. There is nothing in the w/v filed by the Ops that the surgery of Mukti Guha Roy was complementary. The Ops have not denied in their w/vs that the Complainant or his mother did not pay anything towards the surgery. There is no such denial that the Complainant did not pay for the surgery to the OP. In such circumstances, we hold that the Complainant paid to the Ops for surgery of Mukti Guha Roy. The Complainant is the son of the deceased Mukti Guha Roy, consumer includes heirs. As such, the Complainant is a consumer. Hence, this point is decided in favour of the Complainant.
Point No.2.
The Complainant is the resident of Madari Road in the district of Alipurduar but the OP No.1’s chamber is situated within the town of Cooch Behar. The OP No.2 Nursing Home is situated at South Khagrabari in the district of Cooch Behar. The residence of the Complainant is immaterial to confirm the jurisdiction of this Forum. But the office/chamber of the OP Nol.1 and 2 are situated within the district of Cooch Behar. Hence, this Forum has territorial jurisdiction to try this case.
The pecuniary jurisdiction of this Forum is of Rs.20,00,000/-. The claim of the Complainant is much less of pecuniary limit. Therefore, this Forum has pecuniary jurisdiction to try this case.
Point No.3 & 4.
Both the points are taken up for the consideration of discussion as well as the points are related with each other.
Admitted fact need not require to prove. The Ops have admitted in their written version that Mukti Guha Roy came to OP No.1 on 13.09.13 with a history of fracture Trochanter (Right hip joint) caused by falling down and he advised for surgery (DHS). It is also the admitted fact that on 14.09.13, he performed surgery, which was uneventful and there was no complication.
Therefore, it is established that Mukti Guha Roy suffered right hip joint fracture on her person and as per advice of OP No.1, the OP No.1 performed surgery (DHS).
The Complainant has alleged that he paid Rs.75,000/- for the package of surgery. But the Complainant has not produced any document before this Forum.
It is alleged by the Complainant that after the operation, the mother of the Complainant was feeling acute pain instead of relief and her condition started deteriorating. The matter was informed to the attending Nurse for call booking of Dr. Balbant N.S. Laguri for visit. But the attending Nurse did not pay attention and there was no life saving equipment. The victim was referred to Shila Nursing Home at Cooch Behar and she died on 16.09.13 at 5.05 PM. It is further alleged due to lack of care and skill at pre-operative and post-operative stage, Mukti Guha Roy died.
The Complainant has placed one discharge certificate and death certificate of Mukti Guha Roy. Neither the Complainant nor the Ops have filed Admission Sheets, BHT and other treatment sheets. In absence of such documents, it is very difficult to ascertain as to whether there were medical negligence and deficiency of service on the part of the Ops or not.
But from the document filed by the Complainant, we find that the Complainant sent an application on 24.12.13 by Speed Post with a request to supply admission sheet, BHT, all treatment sheets including Test Reports of Mukti Guha Roy. But the same were not supplied to the Complainant. As per WB Medical Code of Medical Ethics under 3.1 every Doctor Registered with the WB Medical Council should maintain his medical records pertaining to his patients for a period of three years. If any request is made for medical records, either by the patients/authorized attendant/WB Medical Council or legal authorities involved, the same may be duly acknowledged and the documents shall be issued within 72 hrs. Therefore, a patient or his authorized agent are entitled to get the medical records within 72 hrs. But the OP No.1 did not issue the same in favour of the Complainant. As such, it amounts to deficiency of service on the part of the OP No.1.
Neither the Complainant nor the Ops have filed any document before this Forum to ascertain as to whether there was medical negligence on the part of OP No.1 and 2. Admitted fact that Mukti Guha Roy was admitted at OP No.2 Nursing Home on 13.09.17 and OP No.1 treated the patient and did the surgery (DHS).
According to the OP No.1, the surgery was uneventful on 14.09.13 and had no complication and the mother of the Complainant took normal diet on 15.09.13. But on 16.09.13 at 2.30 PM, the patient felt uneasiness and breathlessness and on examination her blood pressure was found 200/110 and suspected to have developed CVA (Stroke), and she was referred to Physician-cum-Cardiologist at Dr. P.K. Saha Nursing Home.
As per discharge certificate issued by OP No.2, we find that the patient was apparently all right till the date of discharge but patient suddenly developed CVA on 3rd post-operative date and she was referred to Dr. P.K. Saha Nursing Home for better management. It is evident from the death certificate of Mukti Guha Roy that the patient was admitted at Shila Nursing Home at 4.20m PM to 5.05 PM and the cause of death was C.R. failure following entertrocherteric (Rt) repair CVA.
There is nothing in the case record that the surgery done by the OP No.1 was wrong which amounts to medical negligence.
The OP No.1 did the surgery on the Right Hip Joint on the person of Mukti Guha Roy on 13.09.17. At this stage, it; is very much difficult to ascertain as to whether there was any medical negligence at the time of surgery by OP No.1. It is fact that proof of negligence was found in more surgical cases than medical cases on post mortem examination case. Most of the medical negligence cases arrived to the Hospital with major health problems. Post mortem findings in surgical cases were more clear compare to medical cases. In case of death owing to medical negligence, P.M. examination is must to take action against the negligent Doctor. As per discharge certificate, the patient developed sudden CVA on the 3rd post-operative date and she died due to C.R. failure following entertrocherteric. But there is no evidence on record that there was negligence on the part of OP No.1. In order to ascertain the negligence in performing the surgery of Right Hip Joint of the patient, P.M. of the dead-body was required. But negligence of OP No.1 performing the surgery on Right Hip Joint of the person of the deceased is not established and as such, the Complainant is not entitled to get any relief over this matter.
But the Complainant sent a petition by Speed Post with a request to furnish Admission Sheet, all treatment sheets, BHT and Test reports. The said letter is presumed to be served upon the OP No.1 as there is no denial on the part of the OP No.1. But the OP No.1 did not supply the said documents to the Complainant as per clause No.3.1 of WB Medical Council Medical Ethics, which amounts to negligence and deficiency of service on the part of the OP.
Both the points are disposed of accordingly.
Hence,
Ordered,
That the case be and the same is allowed in part against the OP No.1 and 2 with cost of Rs.5,000/-.
The Ops are hereby directed to pay Rs.10,000/- to the Complainant for negligence and deficiency of service. The Ops are jointly and severally liable to pay the said amount to the Complainant.
The Ops are hereby directed to pay the aforesaid sum within 45 days from this date, failing which the OP No.1 and 2 shall pay Rs.30/- for each day’s delay and the said accumulated amount shall be deposited in the Consumer Forum Legal Aid Fund, Cooch Behar.
Let a copy of the final order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action as per Rules.
Dictated and corrected by me.
