Tarapada Gangopadhyay, MemberThis Complaint Case u/s 17(1)(a)(i) of the Consumer Protection Act, 1986 has been filed by the Complainants, being the sisters of the Complainant Nos. 2 & 3 and daughters of Complainant No. 1, i.e. by the legal representatives of the patient concerned, alleging deficiency in service and resultant medical negligence on behalf of the OPs with prayer for awarding compensation of Rs. 50,00,000/- for mental agony caused by loss of life of the patient concerned.
The brief facts of the case, as emerging from the materials on records, are that the younger sister of the Complainant No. 2 got admitted to OP No. 1-Hospital on 22.7.2010 under the treatment of OP No. 2-Doctor with complaint of ‘renal failure’ when the date for surgery for ‘kidney transplantation’ was fixed on 24.7.2010 with advice for fresh tissue cross-matching at Belle Vue Clinic as revealed from the Progress Report dated 22.7.2010 at 4.30 P.M. of OP No. 1-Hospital. The said ‘renal recipient surgery’ was performed by a team of doctors consisting of (1) Dr. Ramesh Sheshadri, Consultant Cardiovascular Surgeon, (2) Dr. Vinay Mahendra, Consultant Surgeon, (3) Dr. Jaydeep Bhadra Ray, Consultant Surgeon and (4) Dr. Ravi Wankhede, Consultant Surgeon, as revealed from the ‘Surgeon’s Note’ dated 24.7.2010. It is alleged that the said surgery was done without perusing the ‘Tissue Cross-match’ Report dated 23.7.2010, which reported 'T-Cells Positive (90%)' implying thereby the possibility of rejection of the transplanted kidney and hence, such careless and negligent medical service on behalf of the surgeons concerned clearly indicates medical negligence on behalf of the surgeons who performed the kidney transplantation.
The Ld. Advocate concludes that in view of the aforesaid submission, the instant Complaint should be allowed and due compensation be awarded in consideration of the loss of life of the patient concerned and resultant mental agony of the Complainants concerned.
On the other hand, the Ld. Advocate for the OP No. 1, filing written argument, submits that the patient parties suppressed the report dated 23.7.2010 of ‘Tissue Cross-matching’ before the operating surgeon and hence, for such suppression of fact by the patient party the surgeon concerned cannot be held liable and hence, the instant Complaint should be dismissed. In this connection, the Ld. Advocate refers to the following decisions:
1. Prateek (Minor) Vs. Dr. Suresh Chander Kalra and Anr., reported in 2017 (4) CPR 364 (NC);
2. Jairam Sahu Vs. Chandulal Chandrakar Memorial Hospital & Anr., reported in 2017 (4) CPR 366 (NC);
3. Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif and Ors., reported in AIR 1968 Supreme Court 1413; and
4. S.P.Chengalvaraya Naidu (dead) Vs. Jagannath (dead), reported in AIR 1994 Supreme Court 853.The Ld. Advocate also submits that the team of surgeons who conducted the surgery in question was not made parties to the Complaint Case concerned and hence, for such non-joinder of necessary parties the instant Complaint Case should be dismissed. In this connection, the Ld. Advocate refers to the decision of the Hon’ble National Commission in Raj Krishna Mishra Vs. U.P. Awas Evam Vikas Parishad & Anr., reported in 2015 (2) CPR 202 (NC).
The Ld. Advocate for the OP No. 2, filing BNA, submits that the Complainants being not the legal heirs of the patient concerned have no locus standi to file the instant Complaint and hence, the instant Complaint is not maintainable.
The Ld. Advocate continues that the Complaint is not maintainable further for non-joinder of necessary parties being the surgeons who conducted the operation in question.
The Ld. Advocate further submits that the allegation against the OP No. 2-Doctor does not lie as the OP No. 2 was not a member of the team of surgeons who conducted the kidney transplantation on 24.7.2010 as revealed from the Surgeon’s Note dated 24.7.2010 available on records.
The Ld. Advocate continues that the evidence by the Complainants having no affidavit the same cannot be treated as evidence.
The Ld. Advocate also submits that the compensation claimed being not supported by cogent explanation the same is rendered baseless.
The Ld. Advocate concludes that in view of the aforesaid submission, the instant Complaint Case should be dismissed.
Heard both the sides, considered their respective submission and perused the materials on records.
As regards the locus standi of the Complainants, it is stated that the Complainants being the keens of the patient concerned and thus being the legal representatives, as referred to in Section 2(b)(v) of the Consumer Protection Act, 1986, of the patient concerned, the Complainants have locus standi to file the instant Complaint.
The ‘Surgeon’s Notes’ dated 24.7.2010, as available on records, reveals that the team of surgeons, who performed the kidney transplantation, consisted of the following surgeons:
1. Dr. Ramesh Sheshadri, Consultant Cardiovascular Surgeon,
2. Dr. Vinay Mahendra, Consultant Surgeon,
3. Dr. Jaydeep Bhadra Ray, Consultant Surgeon, and
4. Dr. Ravi Wankhede, Consultant Surgeon.But those surgeons, who were involved in the alleged surgical negligence, if any, were not impleaded to the Complaint Case concerned though they are the essential parties. For such defect in the Complaint Case concerned the same deserves dismissal.
In this context, reliance is placed on a decision of the Hon’ble National Commission in Raj Krishna Mishra Vs. U.P. Awas Evam Vikas Par
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ishad & Anr. (supra). The foregoing discussions and the decision of the Hon’ble National Commission lead to the dismissal of the Complaint Case concerned. In view of the said conclusion, we refrain ourselves from making any comment on other issues involved in the Complaint Case concerned. Consequently, the instant Complaint Case is dismissed without deciding on merits and the Complainants are allowed liberty to file the Complaint Case afresh upon impleading the team of surgeons who conducted the surgery in question and non-impleading the doctor who was not a party to the team of operating surgeons.