Date of Filing: 29-03-2016 Date of Final Order: 22-02-2018
Sri Asish Kumar Senapati, President,
This is a complaint u/s 12 of the C.P. Act, 1986.
One Dipankar Ghosh (hereinafter referred to as the Complainant) lodged the complaint against Dr. T.Paul and 3 others (hereinafter referred to as the OPs) alleging medical negligence and deficiency in service.
The gist of the complaint is that the Complainant went to Dr. Debasish Halder on 06.02.15 with severe pain in his abdomen and Dr. Halder prescribed some medicines and advised for some pathological tests and USG of whole abdomen. The Complainant went to the OP No.3 at OP No.4 Scan Centre for USG and the report of USG was normal. Afterwards, the Complainant again felt severe pain in his abdomen and consulted the OP No.1, Dr. T. Paul who clinically examined the Complainant and advised him for appendectomy and accordingly, appendectomy was done by the OP No.1 at the OP No.2 Nursing Home. The Complainant was an indoor patient at the OP No.2 from 13.02.15 to 15.02.15 and paid Rs.27,000/- to the OP Nos.1 and 2 but the OP Nos.1 and 2 issued money receipt of Rs.11,213/- in lieu of Rs.27,000/- to the Complainant. The Complainant was discharged by the OP No.1 from the OP No.2 on 15.02.15 and prescribed some medicines. In spite of that, the Complainant felt discomfort and he reported it to the OP No.1 on 21.02.15 when OP No.1 assured him that the Complainant would be alright within one month. As the condition of the Complainant was not improved, he visited Dr. Halder on 25.02.15 who advised him for USG test. The Complainant went to the OP No.3 at the OP No.4 for USG and the USG report revealed “right ureter – it is mildly dilated – one small (6.3 mm) calculus is seen to lie impacted at the distal part of right ureter. Impression : Small terminal right ureteric calculus’’.
Finding no other alternative, the Complainant rushed to Dr. Bikash Mishra who prescribed some medicines and the Complainant suffered pain as well as expenditure for his treatment. The OP No. 1 was extremely negligent at every step starting from clinical diagnosis to operation and post-operative period by ignoring the standard of medical practice and he has failed to take reasonable skill, care and knowledge for treating the Complainant. The first USG report was wrong and it was clear from the second USG report given by the OP No.3. The OPs had medical negligence and deficiency in service to treat the Complainant.
The cause of action arose on 13.02.15. The Complainant prayed for compensation of Rs.1,50,000/- for medical negligence and deficiency in service against the OPs, Rs. 47,000/- for his treatment and miscellaneous expenses, Rs.10,000/- for litigation cost and Rs.2,00,000/- for mental pain, agony and harassment.
The OP Nos.1 and 2 contested the case by filing w/v on 14.03.17 inter-alia denying the allegations made out in the complaint, contending that the case is not maintainable and there was no medical negligence and deficiency in service. It is the version of the OP Nos.1 and 2 that OP No.1 is a Specialist Surgeon having Master Degree in Surgery and he is the Director of the OP No.2 Nursing Home. It is the specific case of the OP Nos.1 and 2 that the OP No.1 by clinical examination, diagnosed that the Complainant had acute appendicitis and it needed immediate surgical intervention to avoid serious complications and the Complainant was advised accordingly. On 13.02.15, the OP No.1 performed appendectomy of the Complainant and the specimen of the appendix was handed over to the patient party for Histopathology examination but the Complainant suppressed the report of the said examination by not producing it before the Forum. The OP Nos.1 and 2 denied that they received Rs.27,000/- as package money. It is the case of the OP Nos.1 and 2 that they received Rs.7,500/- for appendectomy and Rs.2,197/- towards Nursing Home charges including medicines, for which money receipts were given to the Complainant. The Complainant came to the OP No.1 on 21.02.15 for check-up and he was admitted at the OP No.2 Nursing Home on that day and after review, he was discharged on 22.02.15 and only a sum of Rs.1,516/- was realized from the Complainant for medicines and bed charges and proper money receipt was delivered to the Complainant. The OP Nos.1 and 2 asserted that the OP No.1 went through USG report of the Complainant dated 06.02.15 and performed appendectomy on 13.02.15. There was no deficiency in service and medical negligence on the part of the OP Nos.1 and 2 for treating the Complainant during the period from 13.02.15 to 22.02.15. The Op Nos.1 and 2 prayed for dismissal of the complaint with cost.
The OP No.3 and 4 filed w/v on 02.06.17 contending that the case is not maintainable in its present form and there is no deficiency in service and medical negligence on the part of the OP Nos.3 and 4. The OP Nos. 3 and 4 admitted that the USG of the Complainant was done by the OP No.3 at the OP No.4 on 06.02.15 and 25.02.15. It was asserted that the small stone in the right ureter of the Complainant could not be diagnosed on 06.02.15 due to limitation of the procedure and a small calculus may not be visible/detectable through USG until and unless it becomes impacted inside the ureter causing ureter dialated and the calculus of the ureter of the Complainant was so small that it automatically passed away as it appeared from the prescription of Dr. Bikash Misra dated 25.02.15. The OP Nos. 3 and 4 prayed for dismissal of the complaint with cost.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer 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 / Medical Negligence, as alleged by the Complainant?
- Whether the Complainant entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point No.1.
The Complainant has submitted that Complainant is a consumer of the OPs as he had hired the services of the OPs on payment of charges. In reply, the Ld. Agent for the OPs have submitted that he had nothing to say on this point.
Having heard the Ld. Agents of both sides and on a careful consideration over the materials on record, we find that the Complainant is a consumer of the OPs in terms of Section 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
The Ld. Agent for the Complainant submitted that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of the District Forum. In reply, the Ld. Agent for the OPs have stated nothing on this point.
We have gone through the written complaint, w/v, evidence on affidavit and documents submitted by both sides. With due consideration over the matter, we find that the cause of action of this case arose within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of the District Forum. Thus, this point is disposed of in favour of the Complainant.
Point Nos.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant has submitted that the Complainant, being a student, aged about 22 years, visited one Dr. Debasish Halder at Cooch Behar on 06.02.15 with severe pain in his abdomen and he advised the patient for USG of whole abdomen and it was done by the OP No.3 at the OP No.4 on 06.02.15 and the report was normal (Annexure “B”). He has argued that the pain of the Complainant was not relieved, for which he consulted the OP No.1 at the OP No.2 Nursing Home on 13.02.15 who diagnosed his appendicitis and advised appendectomy and accordingly, it was done by the OP No.1 at the OP No.2 Nursing Home on 13.02.15. It is urged that the Complainant was an indoor patient from 13.02.15 to 15.02.15 on payment of package charge of Rs.27,000/-. It was submitted that the Complainant received money receipt of Rs.11,213/- in lieu of his payment of Rs.27,000/- to the OP Nos.1 and 2. It was argued that the Complainant reported his discomfort to the OP No.1 on 21.02.15 and he was assured that he would be perfectly alright within one month. It was further contended that the Complainant visited Dr. Debasish Halder again on 25.02.15 as his pain was not relieved and Dr. Halder advised the patient for USG test and after USG test at the OP No.4 by the OP No.3, the report revealed “right ureter – it is mildly dilated – one small (6.3 mm) calculus is seen to lie impacted at the distal part of right ureter. Impression : Small terminal right ureteric calculus.” It is submitted that the Complainant suffered financially and mentally due to medical negligence and deficiency in service on the part of the OPs. He has contended that the OPs are liable to pay compensation and litigation cost to the Complainant for his sufferings.
The Ld. Agent for the OPs has submitted that the OP No.1 is a renowned surgeon and he is also the Director of the OP No.2 Nursing Home and the OP No.3 is a Radiologist practicing at the OP No.4. It is contended that the OP No.1 Dr. T. Paul examined the Complainant clinically on 13.02.15 and also consulted the USG report dated 06.02.15 and he was confirmed that the Complainant had acute appendicitis and accordingly, he advised the Complainant for appendectomy at the OP No.2 Nursing Home as the OP No.1 thought it proper that surgical intervention to remove the appendix was necessary to avoid future complications. It was urged that the OP No.1, being an experienced surgeon, was sure through clinical examination of the patient that the patient had acute appendicitis. It was argued that the diagnosis of appendicitis by clinical examination was also an accepted medical practice. He argued that there was no medical negligence or deficiency in service on the part of the OP Nos.1 and 2. It was further submitted that the OP Nos.1 and 2 received only Rs.11,213/- from the Complainant against proper money receipt for operation of appendicitis, cost of medicines, nursing home charges etc. It was further argued that the Complainant was admitted on 21.02.15 for one day for review and a sum of Rs.1,516/- was realized from the Complainant for medicines and bed charges against proper money receipt. It is argued that it cannot be said that the patient had no appendicitis on 13.02.15. It was urged that the OP Nos.1 and 2 handed over the appendix to one Amarjit Singh on 13.02.15 for Histopathology test but the Complainant suppressed the fact. It was argued that the OP Nos.1 and 2 had/ has no medical negligence and deficiency in service in treating the Complainant during the period from 13.02.15 to 22.02.15.
It is argued that the OP No.3 is a Radiologist and USG report dated 06.02.15 revealed normal study and no calculus was seen in the abdomen but the USG of the lower abdomen of the patient was done by the OP No.3 at OP No.4 on 25.02.15 and a small terminal right ureteric calculus was found at the distal part of right ureter. It was further argued that the size of the calculus was 6.3 mm, which was very small. It was further contended that Dr. Bikash Misra examined the patient on 25.02.15 and 13.03.15 but he did not advise any surgical intervention probably due to the fact that the small stone had been out through urine and the Complainant did not suffer anything. It is urged that the visibility of small stone in ureter is always not detected through USG as the small stone moves from one place to other in the ureter. It was contended that there was no medical negligence and deficiency in service on the part of the OP Nos.3 &4.
We have gone through the written complaint, w/v, evidence, documents, written argument submitted by both sides. Admittedly, the Complainant went to Dr. T. Paul (OP No.1) on 13.02.15 with severe pain in his abdomen. Admittedly, Dr. T. Paul diagnosed by clinical examination that the patient was suffering from appendicitis and advised accordingly for appendectomy. The Ld. Agent for the Complainant argued that Dr. Paul performed appendectomy without USG for ascertaining whether the patient was suffering from appendicitis or not and it was nothing but medical negligence and deficiency in service on the part of the OP No.1. Admittedly, the OP No.1 did not advise the patient for USG to ascertain whether appendectomy was necessary or not. Dr. T. Paul (OP No.1) performed appendectomy of the Complainant on 13.02.15 and diagnosed the patient on the basis of clinical examination. Diagnosis of appendix is done through clinical examination and two most common imaging tests i.e. USG and CT Scan and CT Scan is the most accurate test than USG in detecting acute appendicitis. The standard treatment for acute appendicitis is surgically removal of the appendix. In the present case, OP No.1 performed surgical removal of the appendix of the Complainant on 13.02.15 and it appears from Annexure-6 that the removed appendix was handed over to one Amarjit Singh on 13.02.15 for Histopathology test. The Complainant alleged that the OP No.1 removed the appendix of the Complainant without any reason and the diagnosis of appendicitis without any USG or other scientific test was wrong. At this stage, it is not possible to ascertain whether the Complainant had acute appendicitis on 13.02.15 or not but it is crystal clear that the OP No.1 diagnosed appendicitis of the Complainant without taking the help of USG or CT Scan to ascertain whether the Complainant had acute appendicitis or not. The allegation of the Complainant was that the OP No.1 performed appendectomy in a haste manner without USG or CT Scan reports. Diagnosis of appendicitis by clinical examination of a patient on the basis of symptoms is medically accepted for avoiding future complications in case of acute appendicitis. We are unable to believe that the OP Nos. 1 & 2 issued receipt for Rs.11,213/- in spite of receiving of Rs.27,000/- from the Complainant. The Complainant had not denied the statement made by the OP No.1 in para 8 of his written version that the specimen of appendix was handed over to the patient party on 13.02.15 for histopathological examination. Annex 6 filed by the OP No.2 goes to show that the specimen of appendix of the Complainant was handed over to one Amarjit Shing for histopathological test on 13.02.15. The report of histopathology, if furnished by the Complainant, might throw light to the case but the Complainant is silent about the histopathology report. We are unable to hold that the Complainant had no appendicitis on 13.02.15 and the O.P. No.1 performed appendectomy unnecessarily.
Considering the above aspects, we find no reason to hold that the OP No.1 had medical negligence for appendectomy of the Complainant on 13.02.15. We also do not find any deficiency in service on the part of the OP No.2 for giving service to the Complainant from 13.02.15 to 22.02.15. The Complainant did not file USG Plates dated 06.02.15 and 25.02.15. The said Plates, if available, could have been examined by an expert to ascertain whether there was any mistake/omission in any of the reports dated 06.02.15 and 25.02.15. To our mind, the Complainant has not been able to establish medical negligence / deficiency in service against the OP Nos. 1.2, 3 and 4 and he is not entitled to get any relief against the OPs.
The Case was filed on 29.03.16 and admitted on 08.04.16. This Forum has taken endeavour to dispose of the case as expeditiously as possible and reasons for delay has been explained in day to day orders.
In the result, the complaint case fails.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby dismissed on contest against the O.Ps without any order as to cost.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
