Ishan Chandra Das, President
This Appeal has been directed against the judgement and order dated 29.12.2014 passed by ld. DCDRF, North 24 Parganas at Barasat in CC 651 of 2013 where the Ld. Forum concerned while disposing of the Complaint Case dismissed the same on contest against the Opposite Parties without any cost.
Being aggrieved by such order of dismissal the present Appeal has been preferred by the Complainant of the above noted case.
Briefly stated, the case of the Appellant/Complainant (hereinafter referred to as the Complainant) was that the Complainant Bimalendu Chakraborty , a 66 years old senior citizen, had been admitted to Renaissance Hospital , the Respondent/OP no.1 on the 7th day of November, 2010 with a complain of retaining of urine with Inguinal Hernia. One Dr. Siddhartha Sharma attended him for clearing urine and the complainant requested the Doctor to discharge him with Catheter and proper advice with undertaking that he would come back to the Hospital within a week for surgical treatment, as his elder brother was seriously ill, but the Doctor was not interested to listen to his request but admitted him to the Hospital without giving any treatment excepting necessary pathological tests. Due to the pressure of the Complainant, the Hospital Authorities were bound to operate the patient on 12.9.2010 for Hernia and Prostate though the patient was not feeling any pressure of his urine but creating pressure upon him, the Doctors operated the patient and charged lumpsum of money. The Complainant /Patient was also discharged from the hospital as he put pressure on the Hospital Authority and the patient was discharged with advice for taking medicines and as per advice he attended the Hospital for necessary medical aid on 20.9.2010 and found everything perfectly alright, in real sense. The Complainant alleged that he was not feeling well at that time but the Opposite parties were not interested to listen to his Complain and admitted him to the Hospital, kept him there for four days without any treatment but he had to undertake some pathological tests. The Complainant further stated that as he put pressure upon the Hospital Authority, they were compelled to undertake his surgical treatment and discharged him from the Hospital with some advice and for taking medicines. The Complainant again attended the Hospital for post-operative advice and as per the Doctor’s report, everything was found normal though the Complainant was not feeling well at that time. The Opposite party no.3 was not interested to listen to the patient and advised him to see him after ten days and accordingly the Complainant met the OP no.3 on 30.9.2010 at Charnak Hospital and made complain of pain at the place of operation, with swelling etc but instead of hearing the patient the Doctor advised him to take prescribed medicines for being cured. Relying on his representation the Complainant followed his advice but there was least improvement of the above mentioned problem even after nine months of treatment. The Complainant once again informed the matter to OP no.3 who was not interested to listen to his problem rather he (O.P.no.3) wanted to get rid of the patient. Thereafter, the Complainant attended a local Hospital on 30/6/2011 for his recovery but he was confirmed that he will not get back his earlier physical position and further he was confirmed that the Op no.3 was responsible for his ill-fate. The Complainant in the month of October 2010 and thereafter sent e-mail, letters, telephone calls to Dr.Ranjan Sribastav, Dr. Manash Kumar Mondal and the Hospital Authorities i.e. OPs no.1,2 and 3 about the above noted complain but after a lapse of three years from issuance of such letters, he received an intimation from Renaissance hospital on 25/7/2013 that they were looking into the matter seriously and the result would be reported to the Complainant within a short time. The failure on the part of the Authority concerned i.e. the OP no.1 and the concerned Doctors treating the patient to satisfy the Complainant and to meet the grievance, forced him to take recourse of the DCDRF concerned, seeking compensation to the tune of Rs.5 lakhs (Rupees five lakhs) for wrong treatment , harassment and mental agony.
The Opposite Parties no.1 and 2 filed a joint Written Version whereas the OP no.3 filed a separate Written version for contesting the Complaint Case and contended that the Petition of Complaint was filed with certain baseless allegations against the OPs i.e. Hospital and the Doctors treating the patient. It was denied that the Complainant was not given proper medical advice rather it was averred in the said Written Version that the Complainant was given special care while treating him and he was completely cured and had no complain after the operation of Prostrate and Hernia rather it was alleged that he was negligent in attending the Hospital and the Doctor for getting advice at the Post Operation period. It was further alleged by the OPs that the Complainant filed the Complaint Case on certain grounds which were after thought, motivated and harassing in nature. Denying and disputing all the material averments of the Petition of Complaint all the Opposite Parties prayed for dismissal of the Complaint Case with costs.
Ld. Trial Forum while disposing of the Complaint Case held that the Complainant failed to establish that the treating Doctor or the Hospital i.e. the Respondents herein were never negligent in attending the patient and dismissed the Complaint case against all the OPs without any order as to costs.
Now the Point for consideration is whether the Trial Forum was justified in dismissing the Complaint case.
From the materials on record it appears that the Complainant Bimalendu Chakraborty , a 62 years old male patient at the material timewas admitted to the Hospital, the OP no.1 herein, under Doctor Ranjan Kumar Srivastava, the OP no.2 with a Complaint of retention of Urine with inguinal hernia and he was operated by the Op no.3 on 12.9.2010, kept under supervision of the OP no.3 from 13.9.2010 to 15.9.2010 and he advised for discharge on 16.9.2010 after examining the patient on 15.9.2010. The Complainant alleged that he was discharged with the advice for taking medicines and as per advice he attended the Hospital for necessary medical aid on 20.9.2010 and found everything perfect in real sense. But subsequently, he alleged that he was not feeling well, but the OPs were not interested to listen to his Complaint, though they admitted the patient in the Hospital and kept there for four days without any treatment and he was left with some pathological tests immediately before the operation. The statement as averred in the Petition of Complaint about the course of treatment was being corroborated in the statement of the OP no.3 Dr. Manash Kumar Mondal who admitted in his Evidence in Chief on affidavit that after admission in the Hospital some clinical tests of the Complainant were conducted as per advice of the attending Doctor and with the consent of the Complainant he was referred to the op no.3 after completion of clinical tests on 10.9.2010. On interrogation about the Complaint on verification of the Pathological reports, the OP no.3 advised him for operation of his Prostate and hernia simultaneously and on consent of the patient the Prostate and Hernia was operated on 12.9.2010. It is also elicited from his evidence that the Appellant/patient was under his supervision from 12.9.2010 to 15.9.2010 and on examination he found that the patient was fit for discharge and advised the Hospital Authorities to do so.
The Complainant further alleged that he did not get desired result after the surgical treatment was done on him operating his Prostrate and Inguinal Hernia .
Drawing our attention to a literature on the subject of Retrograde Ejaculation, the Complainant urged that he was unable to live normal life due to certain defects in the system. To clarify the situation, ld. Counsel appearing for the Respondents in course of hearing explained the causes of Retrograde Ejaculation which usually occurs because the neck of the urinary bladder which normally closes to block such Retrograde Ejaculation flow, is unable to do so. He also pointed out that such inability usually results from Neurological or physical problem to the bladder neck which in turn results from a variety of a clinical condition and diabetes is a common cause of such disorder. The Complainant/Appellant never alleged that the Doctors i.e. OPs no.2 and 3 treated him without due care and caution nor there was any such allegation that there was any negligence on the part of the Doctors to attend the Patient at the Post Operative period.
The Complainant alleged that he did not get desired result in the process of surgical treatment but for that the treating Doctors or the Hospital cannot be blamed. Ld. Trial Forum in the impugned judgement categorically considered all the issues carefully and came to the finding that the OPs were never negligent in treating the patient.
In this context, we may consider the allegation of negligence against the treating Surgeon in the light of an observation of the Hon’ble Apex Court in Kusum Sharma & Others –Vs- Batra Hospital & Medical Research Centre & Others (in Civil Appeal No. 1385 of 2001) where the Hon’ble Court observed –
"94. VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because of professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the
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efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. IX. It is our bounden duty admitted obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension'. In view of the above observations of the Hon’ble Apex Court and considering the fact and circumstances of the case coupled with the basis of the materials on record, we are unable to take a different view to that of the Ld. Forum , rather we firmly conclude with the findings that the Complainant filed the Complaint case before the ld. DCDRF with speculation to earn a considerable amount. Accordingly we come to the conclusion that the order should be affirmed and accordingly we dismiss this Appeal. We do not pass any order as to costs. In view of the above, the judgement and order disposing of the Appeal, the IA 179/2018, IA 180/2018 & M.A. 181/2018 are deemed to be disposed of since no separate order in respect of those applications need be passed.