Ishan Chandra Das, President
1. This Appeal has been directed against the judgement and order dated 31.8.2017 passed by ld. D.C.D.R.F., Kolkata Unit I in C.C. 65 of 2015 where ld.Forum concerned while disposing of the said Complaint Case allowed it exparte against the OPs No.1 and 3, dismissed exparte without cost against the OP No.2 and dismissed it on contest without cost against the OP No.4, directed the OPs No.1 and 2 to pay a sum of Rs.5 lakh (Rupees five lakh) for harassment and mental agony and Rs.5,000/- (Rupees five thousand) towards litigation cost, to be paid within 30 days from the date of communication of the order i.d. to pay interest @ 10% per annum over the decretal amount till full realization.
Being aggrieved by such Judgement and Order , the OP NO.1 Dr. Uday Sankar Chatterjee preferred this Appeal.
Briefly stated, the case of the Complainant/Respondent no.1 herein (and hereinafter referred to as the complainant) was that on 21.2.2014 the Complainant was suffering from acute pain in his abdomen and he was admitted to Dum Dum Municipal Specialised Hospital and Cancer Research Centre under Dr.A.Bagchi of the said hospital, who after thorough examination and tests informed the Complainant about the presence of kidney stone measuring about 8 mm in both the kidneys and advised the complainant to consult a Urologist and the patient was discharged therefrom on 24.3.2014. On 27.3.2014 the Complainant consulted one Dr. Kuntal Pandit in the OPD of the said hospital who after thorough check up advised the Complainant to have some clinical tests, prescribed some medicines and kept him under his observation from 27.3.2014 to 12.6.2014. On 14.6.2014 at about 6 a.m. the complainant noticed bleeding with urine accompanied with acute pain in his penis and considering emergency of the situation he paid a visit to Dr. Uday Sankar Chatterjee , the Appellant herein , a Urologist at Park Clinic. The patient was examined and was admitted to said Clinic under Dr. Uday Sankar Chatterjee on 16.6.2014 who performed cytoscopy with DGS stent under general anesthesia at Park Clinic. On 20.6.2014 the patient was discharged by Dr. Uday Sankar Chatterjee with an advice to repeat check up on 1.7.2014 and on the very date i.e. on 1.7.2014 during a repeat check up, Dr.Chatterjee informed the complainant that one stent has been installed in his body during the procedure of Cystoscopy on 16.6.2014 and he advised the patient to have some more tests and some medicines were prescribed. On 3.8.2014 the complainant again became sick following acute pain in the left abdomen along with pleading with urine . The complainant immediately contacted Dr.Chatterjee over telephone and as per his advice he was again admitted at Park Clinic where the complainant was declared perfectly all right and on 4.8.2014 he was discharged from the Clinic with a prescription and some verbal advice but without removal of the stent. On 9.8.2014 the complainant met Dr. Chatterjee, the Appellant herein and enquired the status of the kidney stone and removal of the stent to which the Complainant was referred to one Dr. Manash Mondal whose telephone number was supplied with advice to attend Dr. Mondal for further management. On 10.8.2014 the complainant contacted said Dr. Manash Mondal over telephone and was advised to meet him at his chamber at Barasat . Accordingly, the complainant met Dr. Mondal at about 11 a.m. and after thorough check up and examination, Dr. Mondal informed the Complainant that a stone and the stent left in his body which is needed to be removed therefrom by a surgical procedure and Dr. Mondal advised the patient to get himself admitted at AMRI Hospital , Salt Lake and he was told that a sum of Rs.22,000/- (Rupees twenty two thousand) would be paid for getting such surgical treatment. On 16.8.2014 at about 10 a.m. the complainant was admitted to AMRI hospital at Salt Lake under Dr. Mondal, deposited a sum of Rs.22,000/- (Rupees twenty two thousand) and after admission the complainant was taken to O.T. and was put under some machines for about 25-30 minutes and this procedure was performed by some technicians in the absence of Dr. Mondal . When the procedure was over Dr. Mondal came and informed the complainant that the stone has been grinded and advised the patient for some other tests and prescribed some medicines with advice to consume plenty of water and accordingly he was discharged from the hospital. Subsequently, when the complainant had some discomfort he wanted to contact Dr.Mondal to inform about such discomfort but he could not contact the Doctor over telephone , and finding no other way the complainant met Dr. Kuntal Pandit at Dum Dum Municipal Specialised Hospital and Cancer Research Centre on 4.9.2014 where Dr.Pandit again examined him and asked him to meet on 9.9.2014 and on that date Dr.Pandit informed the complainant that the case has become complicated as the stone which was lying on the upper side of the right kidney has descended downwards with a probable dislocation of the stent.
The complainant tried to contact Dr.M.Mondal once again but could not come out successful and finding no other option he paid visit to the chamber of Dr.U.S.Chatterjee at Park Clinic on 11.9.2014 with all reports and treatment history and narrated all in detail to him and Dr.Chatterjee after checking all the reports commented that everything was alright and advised the complainant to meet Dr. M.Mondal at Barasat. The complainant further expressed his inability to meet Dr.Mondal and requested Dr.Chatterjee , the OP No.1 to remove the stent at his Clinic to which the Op NO.1 replied that he had no infrastructure in his clinic . The complainant requested the OP NO.1 to do whatever necessary but in reply Dr.Chatterjee expressed that everything will be done by Dr.Mondal only and immediately he /OP No.1 became annoyed and asked him to leave his chamber. On 20.9.2014 the Complainant then met Dr.Kuntal Pandit and Dr. S.Bajoria , a Senior Consultant of Urology at R.N.Tagore Hospital who opined that the stent implant in the body needs to be removed immediately as implanted stent in the body might cause infection. Dr.Bajoria and Dr.Pandit advised the complainant to meet them on 26.9.2014 . On 26.9.2014, while the complainant was admitted to Renaissance Hospital under Dr.Kuntal Pandit, it was found that the stent was already dislocated from his site of implant and the complainant was released therefrom with advice to contact Dr.Bajoria on 26.9.2014 at R.N.Tagore Hospital. Thereafter, on the self same day, the complainant met Dr. Bajoria and Kuntal Pandit at R.N.Tagore Hospital and on the strength of clinical finding, Dr.Bajoria informed the complainant that his problem turned complicated and has to be operated by ‘open abdominal surgery’ under general anesthesia on 7.10.2014 for which he had to get admitted on 6.10.2014. On 6.10.2014 about 10 a.m. the complainant was admitted at R.N.Tagore Hospital , Mukundupur and operation was performed under Dr.Bajoria and he was associated by Dr.Kuntal Pandit, reportedly the stone and stent was removed and a new stent was implanted which was to be removed after 8 weeks and on 13.10.2014 the complainant was discharged from R.N.Tagore Hospital and on 22.11.2014 the stent implanted by Dr.Bajoria was removed . The complainant claimed that he had to suffer much due to the negligent treatment of the OPs NO.1 and 2 and had to bear the expenses of a sum of more than Rs.2 lakh (Rupees two lakh) and for the purpose of realizing the amount of compensation and medical expenses, the complainant sent legal notice to the OPs claiming medical expense to the tune of Rs. 2 lakh (Rupees two lakh) and a sum of Rs. 10 lakh (Rupees ten lakh) towards compensation for medical negligence , mental and physical harassment and sufferings which did not yield any result and that prompted the Complainant to take recourse of the D.C.D.R.F. concerned praying for the reliefs, in terms of the Petition of complaint.
The OPs No. 1,2 and 3 did not file any Written Version to contest the same but the OP NO.4 (Proforma OP) filed a Written Version to contest the Complaint case as it is reflected from the judgement impugned ( no copy of the written version of the OP NO.4 was filed before us) . In the said Written Version the OP NO.4 prayed for dismissal of the Complaint Case against it as there was no allegation against the said OP No.4 (Proforma OP) AMRI Hospital, Salt Lake.
Ld. D.C.D.R.F. while disposing of the said Complaint case being C.C. 65 of 2015 allowed the same exparte with cost against the OPs no.1 and 3 and dismissed without cost against the OP No.2.
Now the point for consideration whether ld. D.C.D.R.F. was justified in passing the order impugned against the OPs including the Appellant herein.
Admittedly, the complainant suffered from pain in his abdomen on 21.3.2014 and consequent to such feeling of pain he was admitted to Dum Dum Municipal Specialised Hospital and Cancer Research Centre where he was initially treated by one Dr. A.Bagchi who asked the patient for investigation of KUB region and the report dated 23.3.2014 (which is at page 15 of the file) reveals that no Radio Opaque Calculus shadow noted along KUB region. Thereafter, the patient was placed under the treatment of Dr. Kuntal Pandit on 27.3.2014 who (Dr. Pandit) after thorough check up advised the complainant to have some clinical tests and prescribed some medicines and kept under his observation from 27.3.14 to 12.6.14 and on 14.6.14 at about 6 a.m. when the complainant noticed bleeding with urine and felt pain in the pennies he took shelter of the OP NO.1 Dr. U.S.Chatterjee at Park Clinic where said Dr. U.S.Chatterjee performed cestoscopy with DGS stent under general Anesthesia and discharged the patient on 20.6.2014 with an advice to check up on 1.7.2014 . It was alleged that said Dr.U.S.Chatterjee during the procedure of Cestoscopy advised some more clinical tests and prescribed some medicines and the complainant was informed during the check up on 1.7.2014 that one stent had been installed in his body. The complainant further alleged that after a few days treatment, the complainant/patient was asked to meet Dr. Manash Mondal, the OP NO.2 herein who advised the patient to get himself admitted at AMRI hospital, Salt Lake for removal of a stone and the stent from his urinary system by a surgical procedure, to be done by him at AMRI hospital , Salt Lake . It was further informed that the kidney would be grinded to dust and subsequently the stent would be removed. The averments as stated in the Petition of complaint clearly reflected that on 16.8.14 at about 10 a.m. the complainant was admitted to AMRI Hospital where he had to make deposit of a sum of Rs.22,000/- (Rupees twenty two thousand) and the procedure for removal of kidney stone by way of grinding had been done by the technicians in the absence of Dr.Mondal who advised the patient to do so. Such a callous approach of a medical practitioner cannot be overlooked in the facts of the case when the patient was referred to him by another Urologist Dr.U.S.Chatterjee . The complainant narrated his painful and heart breaking experience while he was under the treatment of all the OPs no.1 and 3 and ultimately he was saved under the treatment of Dr.S.Bajoria of R.N.Tagore Hospital. Such an allegation was not counter acted by these OPs even by filing Written version before ld. D.C.D.R.F. and such unchallenged testimony of the complainant compelled the ld. D.C.D.R.F. to accept the version of the complainant as sacrosanct even without obtaining any Expert’s opinion on the subject. Mere fact that the complainant could not get desired result from the treatment of the OPs NO.1 and 2 cannot be the proof of medical negligence and those Ops should have raised objection before ld. Trial Forum to establish such negligence by report of Medical Experts in the field. Since the allegations of th
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e complainant was not challenged before ld. D.C.D.R.F., that prompted the Forum concerned to come to the conclusion that the Appellant and the OP NO.3 of C.C.65 of 2015 being the Doctors who gave treatment to the complainant at the initial stage did not give proper treatment, rather they dealt with the patient in a careless and negligent manner. Having regard to the facts of the case and the gravity of the allegations against the OPs NO.1 and 3 we concur with the finding of the D.C.D.R.F so far as the liabilities of the OPs NO.1 and 3 are concerned. In the ordering portion of the judgement ld. D.C.D.R.F. while directing the OPs to pay compensation perhaps mistakably directed the OP no.2 though the case was allowed against the Ops No. 1 and 3 only. Hence we dispose of the Appeal by affirming the judgement and order impugned with certain modifications that the Ops No.1 and 3 shall be jointly and severally responsible for making payment of compensation to the tune of Rs. 5 lakh (Rupees five lakh) and litigation cost of Rs.5,000/- (Rupees five thousand), to be paid to the complainant within 60 days from the date of this order i.d. the decretal amount shall carry simple interest @ 9% per annum from the date of the order impugned, till the date of its realization. Parties do bear their respective costs of Appeal.