Hon'ble Mr. Subhas Ch. Guin, Member.
The alleged negligence in medical service has dragged the Complainant, Mr. Sujay Sarkar who is a resident of village Ghoramara Sajherpar, P.S. Pundibari Dist. Coochbehar. The brief fact of Complaint petition is that the Complainant Consulted Dr. (Major) P. K Das, MBBS (Cal) (O.P. No.1) for his severe pain in abdomen with Vomitting on 14-03-17. On examination of the Complainant and looking over some previous report of endoscopy, the O.P. No.1 diagnosed him with Gastric ulcer for which the O.P. No.1 advised him to undergo some blood tests and prescribed some medicines. Accordingly, the Complainant went to "The Sun Clinical and Diagnostic Laboratory" (O.P. No.2) for undergoing the blood tests proscribed by the O.P. No.1 where blood tests were performed by them on receipt of a consideration of Rs. 1000/- and they issued 3 reports for the same but the O.P. No.2 did not issue money receipt in favour of the Complainant.
The blood reports revealed as follows:
Blood Urea:- 42.7 MD/DL.
Blood Creatinine: 1.3.
Blood Serology: Insignificant Jitre.
Blood Haemoglobin: - 9.4
Thereafter, the Complainant again visited the chamber of the O.P. No.1 alongwith abovesaid blood report and after looking over the said blood report the O.P. No.1 assured the Complainant of early recovery of the disease and again advised him to take those prescribed medicines but the O.P. No.1 did not advise him to undergo an USG test. After taking such medicines, the Complainant did not feel comfort but his abdominal pain continued with fever sometime. On 30-03-17, the Complainant again visited the O.P. No.1's chamber for review and after examination, the O.P. No.1 prescribed some medicine. On taking those medicine prescribed on 30-03.17, the Complainant did not feel any comfort but his condition began to deteriorate with tremendous pain and fever which caused his condition serious. Being puzzled, the Complainant visited the chamber of Dr. D. Mondal MD On 17-05-17 at Coochbehar who advised him for an USG and Biochemical examination. The Complainant got those examination done at Disha Diagnostic Centre, Coochbehar which revealed that blood Urea was 138 mg/dl and Creatinine was 9.8 mg/dl which made him anxious and suffering from mental pain and agony. Then finding no other alternative, the Complainant alongwith his family members rushed to Neotia Getwel, Siliguri where they consulted Dr. Asutosh Soni, MBBS, MD. DM. on 18-05-17. The Complainant was diagnosed with "Chronic renal parenchymal disease" by the Dr. Soni after undergoing several tests and USG test. Considering the gravity of the disease they rushed to Manipal Hospital, Bengaluru where Dr. Topoti Mukherjee MD. DNB (Nephrology) was consulted on 24-05-17 and 26-05-17 who diagnosed the Complainant with chronic Kidney Disease stage-v / on maintenance hemoedialysis. The treatment of the said disease was done by Dr. Mukherjee who initiated dialysis on 24-05-17 via night IJ V Catheter and advised for kidney transplant. Thus, the Condition of the Complainant became very serious for which dialysis continued once a week. Therefore, the O.P. No.1, Dr. (Major) P. K. Das was extremity negligent at every step starting from clinical diagnosis during the patient's treatment and also failed to follow the standards of medical care and to use reasonable degree of skills, knowledge and prudent while treating the patient. If a doctor fail to diagnose the disease at the initial stage then he is liable for medical negligence as his conduct falls below the level of reasonable care. The O.P. No.1 doctor had not given proper advice and treatment which amounted to blatant medical negligence and deficiency in service. In the meantime, the Complainant discovered the fact that the pathologist whom he visited for testing blood did not possess any degree and further searching in the website it was revealed that the O.P. No.2 was not a registered doctor but a fake one. Thus, by improper treatment of the O.P. No.1 and administering of unnecessary medicine prescribed by him arising from his wrong diagnosis might have adversely damaged indispensable organ like kidneys for which the Complainant faced life threat and would be suffering from various disorders or problem in his health in future. The O.Ps did not maintain professional ethics which tantamounted to medical negligence and deficiency in service. Therefore by such negligent activities and unfair trade practice on the parts of the O.Ps, the Complainant suffered irreparable loss, mental pain and agony and also suffered huge monetary loss (Nursing home charges at Siliguri and Bengaluru, continuous expense for dialysis and miscellaneous expenditure such as food, lodging and taxi fare) for which Complainant compelled to file this case before this Commission for redressal of his grievances. The cause of action of the present case arose on 14.03.17 when the Complainant paid visit to the O.P. No.1 and the Sun Clinical & Diagnostic Laboratory at Cooch Behar. The Complainant prayed for a direction to the O.Ps to pay a sum Rs. 10,00,000/- for medical negligence, deficiency in service and unfair trade practice and to pay a sum of Rs. 29991/- for medical expense and Rs. 1,00,000/- for miscellaneous expenditure and to pay a sum of Rs 10,000/- for cost of proceeding and to pay a sum of Rs. 5,00,000/- for mental pain, agony and harassment and any other relief as per law which may deem fit by the Hon’ble Commission.
The O.P. No.1 in his defence plea stated that he was a doctor in Indian Army and afterwards he is practicing as a general physician at Cooch Behar for last 23 years and during this long tenure no complain has been brought by any patient with respect to treatment, sincerity and good care against the O.P. No.1 and he is practicing with good fame. The O.P. No.1 submitted that the Complainant came to him on 14.03.17 with a complain of pain in upper abdomen frequently which increased on empty stomach and decreased after taking food and the Complainant was suffering from nausa (feeling of vomiting) and decreased appetite alongwith a feeling of feverish. That during examination, the Complainant submitted that he was treated at Fulia of Nadia District during September, 2016 and further submitted reports of USG (whole abdomen) and endoscopy of upper abdomen dated 24-09-16 which revealed that the Complainant suffered from Bilateral renal Paranchaymal disease with anterior wall ulcer in blub of duedenum but the Complainant did not mention the abovesaid disease in the complaint petition intentionally with some malice intention. After hearing all his problem and on perusal of the records of previous treatment, the O.P. No.1 thought that the Complainant might be suffering from Kidney disease or jaundice or nonhealed gastric ulcer and his feverish feeling might be due to jaundice / typhoid fever / Anemia and accordingly he was advised for blood test from a reputed pathologist. On the same day the Complainant appeared before the O.P. No.1 with blood test done at the centre of the O.P. No.2. From the blood test report dated 14-03-17 it was revealed that the Complainant had no problem of Kidney, typhoid and jaundice (since Bilurubin was 0.82) but his blood HB was low and according to the medical ethics, conjoining the patient's previous and present reports it was suspected that the Complainant was suffering from duodenal ulcer since his pain in upper abdomen increased on empty stomach and releived by taking food which matched with the symptoms of duodenal ulcer and moreover as per blood report dated 14-09-17 there was no problem of kidney and accordingly as per guideline of medical science, the O.P. No.1 started treatment of the Complainant for duodenal ulcer and for raising Hb. Again on next visit on 30-03-17, the Complainant reported that his abdominal Pain was relieved a little bit but his appetite was low and accordingly after thorough examination with the diligence, the O.P. No.1 prescribed him appetiser syrup and antacid and advised for endoscopy of USG tract. Thereafter, the Complainant did not come to the O.P. No.1 with any report nor did he report for any deterioration of his condition which kept the O.P. No.1 in dark. So, the latches lie on the part of the Complainant. But from the complaint petition, the O.P. No.1 came to know that the Complainant saw Dr. D. Mandal, Dr. Ashutosh Mani, Dr. Topoti Mukherjee, Dr. Goutam Basu of Disha Laboratory, Coochbehar and Dr. Avinash Borah of Neotia Getwel afterwards who were not made parties to this suit. So, in absence of all those doctors the suit cannot be heard for proper adjudication and natural justice will be hampered. So, the inclusion of the aforesaid doctors was Very much necessary otherwise the suit would suffer from the defect of misjoinder of necessary parties.
The O.P. No.1 argued that during treatment of the Complainant on 14-03-17 and 30-03-17 all reasonable degree of skill and care had been adopted by him and the treatment was done with due diligence maintaining medical ethics and guideline of medical science. The O.P. No.1 never prescribed unnecessary medicine and the diagnosis was correct which was done on the basis of oral statement of the Complainant and blood tests were advised after proper examination clinically. Therefore, there was no chance to cause damage to the kidney of the Complainant. So, there was no latches, medical negligence and deficiency in service on the part of the O.P. No.1 during the period of treatment of the Complainant on 14-03-17 and 30-03-17. (Therefore, the petitioner is not entitled to get any compensation for the same and the Complaint petition to is liable to be dismissed).
Moreover, the O.P. No.1 claimed that to expert opinion was given in support of the complaint petition which should not be entertained by the Commission.
The O.P. No.2 Mr. Arup Mishra, Proprietor cum pathologist of “The Sun clinical and Diagnostic Laboratory" denied each and every allegation lavelled against him. The statement that Mr. Arup Mishra, the proprietor cum pathologist who carries on business under the name and style "The Sun Clinical and Diagnostic Laboratory, were denied by the O.P. No.2. On the contrary he was an unemployed youth. He was not a resident of village Kokuyabari, P.O. Khariya Kokribari, P.S-Pundibari, Dist- Cooch Behar as mentioned in the Complaint petition. The O.P. No.2 also stated in his evidence on affidavit that the documents filed by the Complainant before the Commission were not within his Knowledge and he was a stranger to the facts of the case and no way related with the treatment and pathological test as alleged by the complainant as no such pathological test were done by him. So, he should not be the necessary party to this case. The statement made by the Complainant that the cause of action arose on 14-03-17 when he went the O.P. No.2 for pathological tests, were totally denied by the O.P. No.2. Therefore, the Complainant is not entitled to get any relief as prayed for by him and the case is liable to be dismissed with cost.
Perused the case record and documents filed by the both parties. Heard the arguments advanced by the Ld. Advocates of both parties at length. The allegation and counter allegation by the Complainant and O.Ps raise some important points which are required to be decided on the basis of the evidence available in the case record with a view to adjudicating the case.
Points for determination
- Whether there is any deficiency in services or medical negligence on the parts of the O.Ps?
- Whether the Complainant is entitled to get any relief as prayed for in his complaint petition?
Decision with reasons
Point No.1.
The Complainant was seen by Dr. (Major) P. K. Das (O.P. No.1 ) twice on 14-03-17 and 30-03-17 (Annexure-A). On the first occasion the Complainant came to the O.P. No.1 With severe abdominal pain and vomitting when he was diagnosed with gastric ulcer on the basis of some previous report of endoscopy and blood test and on date blood test(Annexure-B, B/1 & B/2) clinical examination of the complainant. The O.P. No.1 also advised him to undergo some blood text and prescribed him some medicine. By taking such medicine, the Complainant did not experience any comfort but continued to experience the abdominal pain with fever sometimes. Thereafter, he visited the O.P. No.1 's chamber on 30-03-17 and narrated the problem before the O.P. No.1 for which the O.P. No.1 prescribed some medicine and advised him to undergo endoscopy test of upper GI tract. On taking those medicine prescribed on 30-03-17 the condition of the Complainant began to deteriorate gradually with tremendous pain in abdomen and fever which caused a serious conditions. On 17-05-17 the complainant visited the chamber of Dr. D. Mondal MD (Annexure-D), who advised for an USG test and Biochemical examination and prescribed some medicines. The biochemical examination was performed at Disha Diagnostic Centre on 17.05.17 which revealed that blood urea was 138 mg/dl and creatinine (serum) was 9.8 mg/dl (Annexure-E). Thereafter, Dr. D. Mondal diagnosed the Complainant with chronic kidney disease (in short CKD) and prescribed some medicine and referred him to nephrologist after looking over the blood test report.
It is general practice of attending doctors that the diagnosis is done conjoining the patient's previous and present report which helps them come to a conclusion regarding diagnosis of the disease. Dr. D. Mondal diagnosed the complainant with CKD on consulting the previous and present reports and examinations clinically. The previous test reposts included an USG (whole abdomen) and an endoscopy of upper abdomen dated 24-09-16 which revealed that the complainant was suffering from Bilateral Parenchymal Disease with anterior wall ulcer in bulb of deodenum Dr. (Major) P.K. Das was seen by the complainant on 14-03-17 first time when he diagnosed him with gastric ulcer and on medication after 16 days the Complainant felt no comfort of his disease and reported the same to the O.P. No.1 on 30-03-17. But on the second occasion, the O.P. No.1 treated him with same diagnosis of ulcer with medication for appetiser and antacid and advised for endoscopy of UGI tract. but did not advice USG of abdomen although he had seen his previous report of USG on 24-09-16 where Bilateral renal Parenchymal disease was diagnosed which the O.P. No.1 admitted in written version. Although the Complainant was having deodenum ulcer, but his Bilateral renal Parenchymal disease was aggravated to a certain level, so the medication prescribed by the O.P. No.1 was of no use. On the other hand, the Complainant developed CKD on lapse of time. The O.P. No.1 is a reputed doctor of Cooch Behar having service in Indian Army and practicing physician for many years. He should have diagnosed the Complainant properly on reviewing after 16 days as the Complainant had a history of kidney disease which he came to know on the first visit. On 30-3-17 i.e. on second visit the O.P. No.1 prescribed one appetiser and antacid for taking care of his low appetite and duedenum ulcer. The O.P. No.1 somehow overlooked the Bilateral renal Parenchymal disease, which was diagnosed in the USG report done at Fulia, Nodia, the symptom of which may be similar to that of duodenum ulcer. Thus, after undergoing treatment under the O.P. No.1 for more than two months with no improvement in his health condition the Complainant confirmed about his disease which is CKD diagnosed by Dr. D. Mondal MD. FIAGP, consultant Physician. Therefore, this wrong diagnosis by the O.P. No.1 caused the Complainant to start the treatment of actual disease late which in turn made him suffered financially, mentally and physically.
On the contrary, The Sun Clinical and Diagnostic Laboratory, Cooch Behar (O.P. No. 2) Conducted the blood test prescribed by the O.P. No.1 (Annexure- B, B/1 & B/2) on 14-03-17 but there was a question mark on the authenticity of the test report because the Complainant came to know about non-existence of such laboratory, in Cooch Behar. He filed a petition before CMOH, Cooch Behar under section-6 of the Right to Information Act on 14-12-17 for seeking information about the O.P. No.2. In reply to that letter he received one letter from the office of the CMOH having CMOH/CBR/ Estb/5499 dated 20-12-17 (Annexure-I) in which it is stated that as per available office record of this office, no clinical establishment named "The Sun Clinical and Diagnostic Laboratory is registered as a laboratory with this department. Generally as per clinical establishment rule 2003, every clinical establishment requires a license, to run a pathological laboratory the validity of which varies from one to three years. So, it is crystal clear that the O.P. No.2 had no such license from the competent authority to run such establishment. Thus, the establishment "The Sun clinical and diagnostic laboratory is a fake one which raises question about authencity of the doctor and pathological technicians working there and so is test result given by them.
The blood fest result of 14-03-17 shows blood urea was 42.7 and creatinine was 1.3 which are almost normal but test result after two months i.e. on 17-05-17 blood urea was 9.8 and creatinine was 138 which are abnormally high. The first test was done by the O.P. No.2 and second one was done by Disha diagnostic Centre at Cooch Behar. The latter test report matches with the text report done at Manipal Hospital, Bengaluru on 24-05-17. Therefore, there is suspicion how far the blood test done by the O.P. No. 2 is true. Had the blood test result of the O.P. No.2 been matching with other two test result. Then the O.P. No.1 would have diagnosed the disease properly conjoining the previous report of USG which diagnosed a kidney disease. Thus, the Complainant would not have been harassed by their activities. Therefore, Commission opines that there is deficiency in service/ medical negligence on the parts of both O.Ps.
So, this point is answered in affirmative and decided in favour of the Complainant.
Point No.2.
In previous point, it is vividly discussed how the Complainant was harassed by the O.Ps due to medical negligence and deficiency in service on their parts. Thus, these medical negligence and deficiency in service caused the Complainant suffering from mental pain, agony, ill health and pecuniary problem. Therefore, the Complainant is entitled to get relief for the same from the O.Ps.
So, this point also is answered in affirmative and decided in favour of the Complainant.
In the result, the complaint case succeeds on contest.
Hence, it is
Ordered
That the Consumer Case No. CC/85/2017 be and the same is allowed on contest with cost.
Therefore, the O.Ps are directed to pay a sum of Rs.30,000/- for medical negligence, Rs.30,000/- for medical expenses, Rs.20,000/- for mental pain, agony and harassment and Rs.10,000/- towards cost of proceeding jointly and/ or severally. The O.Ps are further directed to pay the total sum of Rs.90,000/- within 30 days from the date of this order jointly and/ or severally failing which the awarded sum shall carry an interest @ 6% per annum from this date to till its realization.
The CMOH, Cooch Behar is directed to take step as per Clinical Establishment Rules against the O.P. No.2, i.e. the Sun Clinical and diagnostic Laboratory, Sudhansu Market, Gunjabari, Dist- Cooch Behar as the said pathological lab has not been registered under the W.B. Clinical Establishment Rule 2003.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
Let a plain copy of this order be sent to the CMOH, Cooch Behar for necessary action.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
