w w w . L a w y e r S e r v i c e s . i n



Santi Swaasthalaya & Anusandhan Kendra Pvt. Ltd. v/s Iti Saha & Others


Company & Directors' Information:- ITI LIMITED [Active] CIN = L32202KA1950GOI000640

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    First Appeal No. A/1238/2015

    Decided On, 22 November 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT
    By, THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER & THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, MEMBER

    For the Appellant: Abhik Das, Koyeli Mukhopadhyay, Advocates. For the Respondents: Bibhas Mondal, Advocate.



Judgment Text

Ishan Chandra Das, President

This judgment will cover both the appeals being A/566/2015 and A/1238/2015 arose out of a common judgment passed by Ld. DCDRF, Siliguri in CC/62/S/2012 dated 10-02-2015. Ld. Forum concerned while disposing of the said complaint case allowed it on contest against the OP no. 1/Dr. Sunita Gupta, and exparte against the OP no. 3/ Santi Swaasthalaya & Anusandhan Kendra Pvt. Ltd., dismissed it exparte against the OPs no. 2 and 4 i.e. Dr. G. B. Das and New Ramkrishna Seba Sadan, Siliguri respectively, directed the OPs no. 1 and 3 to pay a sum of Rs. 7,50,000/- (Rupees seven lakh fifty thousand) being 3,75,000/- (Rupees three lakh seventy five thousand) each to be paid by the OP no. 1 and the OP no. 3 to the complainant within 60 days from the date of the order with default clause.

Briefly stated, the case of the complainant, Smt. Iti Saha, (i.e. the respondent no. 1 in both the appeals and hereinafter referred to as the complainant) the complainant felt pain in her lower abdomen and being accompanied by her husband Swapan Saha she paid a visit to the chamber of the OP no. 1/appellant and hereinafter referred to as the OP no. 1) i.e. Dr. Sunita Gupta at Santi Swaasthalaya & Anusandhan Kendra Pvt. Ltd., (the OP no. 3) and being advised by the OP no. 1 the complainant had to undergo various tests on 01-05-2010 in Santi Swaasthalaya & Anusandhan Kendra Pvt. Ltd., Siliguri including X-ray of chest, blood examination report, report of urine etc. The complainant went to the chamber of the OP no. 1 with all the medical reports and on perusal of the said reports the OP no. 1 advised the complainant to get admission in the Nursing Home (the OP no. 3) for her better treatment. On 06-05-2010 the complainant got herself admitted in the said Nursing Home with a hope of proper treatment. The OP no. 1 attended the patient, clinically examined her and opined that the glands in the body of the complainant has been enlarged and the other parts of the body were absolutely normal. The OP no. 1 also expressed that there was no danger and she would be recovered shortly. On 09-05-2010, the OP no. 1 examined the patient once again and on perusal of the scanning reports and other medical documents she (OP no. 1) gave an assurance to the complainant and the members of her family that the complainant would be recovered shortly and she would be discharged after a few days. On that date while examining the patient and on perusal of the medical documents, it was ascertained that the complainant suffered from chronic Pelvic Inflammatory Disease, she was admitted to the Nursing Home and the doctor opined that with the help of the medicines and injections, the patient would be fully recovered shortly and it was stated by the OP no. 1 that the other parts of the body of the patient were normal and the patient was discharged on the self same date i.e. 09-05-2010, as per medical advice. The complainant after being discharged from the Nursing Home and after taking rest for almost two weeks felt severe pain again in her lower abdomen and the husband of the patient immediately communicated with the doctor/OP no. 1 for her advice and the OP no. 1 directed the family members of the complainant/patient to admit the complainant in the said Nursing Home/OP no. 3 for follow up action since the treatment was conservative. As per instruction of the doctor, the complainant was immediately admitted on 24-05-2010 in the Nursing Home/OP no. 3 but the OP no. 1 never expressed that the patient neither suffered from the complicated disease nor advised her to shift to any other place for better management rather the OP no. 1 continued her treatment keeping the patient in the Nursing Home and the patient party having full faith and trust upon the OP no. 1 were expecting desired result. Thereafter two days from the date of admission in the Nursing Home/the OP no. 1 called on the family members of the complainant as she was completely normal but she was advised to take medicine regularly and on 26-05-2010, the patient was discharged from the Nursing Home. The complainant after such discharge started her treatment with medicine, as prescribed by the OP no. 1 but she was never well rather she felt continuous pain in her abdomen though the OP no. 1 advised her to take medicines regularly and it would be cured soon. The patient party asked the OP no. 1 whether the patient requires surgical treatment to which the OP no. 1 replied in the negative and she declined to take the risk of such surgical treatment. Hence the complainant and her husband did not get proper answer from the OP no. 1. The patient party consulted Dr. G. B. Das, the OP no. 4 of New Ramkrishna Seba Sadan, Siliguri on 30-06-2010 where the complainant was asked to various medical tests and after getting the tests done, the OP no. 2, Dr. G. B. Das opined that the patient was suffering from abdomen pain, urinal problem and vasico vaginal fistula and for that reason the complainant was required to admit for better treatment at the OP no. 4 and according to his advice, the patient was admitted on 02-08-2010 and surgical intervention was done in the said Nursing Home/OP no. 4. After a few days the complainant informed the OP no. 2 that she was feeling severe pain in the abdomen and other parts of the body when the OP no. 2 increased the number of medicines and injections to which the family members of the complainant apprehended serious side effects and damages to the organs of the patient due to the huge quantity of medicines though as per the prescription of the OP no. 2 though the costly medicines were purchased and on taking such medicines, the complainant finally felt comfortable on 22-08-2010 and she was discharged from the Nursing Home. After two weeks from her discharge the complainant felt severe pain in different parts of her body and she had to face some other complications. The family members of the complainant immediately consulted with the OP no. 2 who assured them that the complainant would be cured within a few weeks and finding no other alternative the family members of the complainant also consulted the doctors of the Christian Medical College, Vellore where she was admitted on 18-09-2010, the physician of CMC, Vellore examined the patient, perused the tests and examination reports and treated her in a different way to that of the doctors/OPs no. 1 and 2 at Siliguri, causing complications and sufferings of the patient leading the complainant to file the instant complaint case for claiming reliefs including compensation and other consequential reliefs, in terms of her application being CC/62/2012.

A written version was filed on behalf of the OP no. 1/Dr. Sunita Gupta who claimed that the complaint case was not maintainable in law and prayed for dismissal of the same. Denying the cause of action, as averred in the body of the application, the OP no. 1 stated in her written version that on 06-05-2010 total abdominal hysterectomy was done on the patient/complainant and she was discharged without any complication on 09-05-2010 in a stable condition with observation that she would recover in due course. As the complainant reported on 24-05-2010 that urine was leaking first intermittently then continuously, she was again advised to get admission in the Nursing Home/OP no. 3 and on her admission catheterization was done resulting stopping of leakage and the patient was discharged with catheterize with further advice to report after 14 days but in the 1st week of June, 2010 the patient informed that the urine was leaking again inspite of catheter for which the complainant was advised to consult a senior gynecologist and as per advice Dr. G. B. Das, the OP no. 2 was consulted and on examination by Dr. G. B. Das it was found that the abdominal scar was found healthy and after a triple dye tests in the OPD, VVF (Vasico Vaginal Fistula) was diagnosed, the patient was treated conservatively with catheterize and with antibiotic and fistula being very small, it was expected that such fistula would be healed by conservative treatment. Denying and disputing the material allegations, as brought against the OP no. 1, it was stated that the patient also consulted Dr. N. K. Kejriwal and Dr. Tapas Moitra and the patient was treated by them conservatively and it was decided that the surgical treatment of the patient would be taken up after a month from 06-08-2010 and the patient was discharged temporarily with a direction to report after a month but the patient did not turn up for such surgical treatment. The OP no. 1 categorically denied her responsibility in treating the patient with negligence rather she claimed that there was no negligence or ‘deficiency in service’ on her part and the complainant would not be entitled to any compensation and ultimately an order of dismissal of the complaint case was prayed for.

The factual aspects of the matter with regard to treatment by the appellant/OP no. 1, Dr. Sunita Gupta at the initial stage conservative treatment of the patient at the Nursing Home/OP no. 3 were not disputed. It is the complainant who admitted that the patient, (Smt. Iti Saha) had to undergo a successful total abdominal hysterectomy. It was alleged that on 09-05-2010 the OP no. 1 examined the patient and after perusing the scanning report and other medical documents diagnosed that the complainant was suffering from Pelvic Inflammatory Disease (PID) and as all the organs of the patient save and except the genital organ were normal the OP no. 1/Dr. opined that the patient would be cured shortly and she was offered conservative treatment by the OP no. 1 at the Nursing Home/OP no. 3. It is revealed from the Discharge Certificate (page 33 of the file) that the patient was admitted to the OP no. 3 on 24-05-2010 and she was discharged therefrom on 26-05-2010 with certain medical advice and the treatment given was conservative. The careful analysis of the factual aspects also pointed out that the patient was not satisfied with the treatment of the OP no. 1 and she had to take shelter of the OP no. 2/Dr. G. B. Das at the New Ramkrishna Seba Sadan, the OP no. 4 where she was also treated conservatively and finally she had to take recourse of the Christian Medical College, Vellore wherefrom she got the ultimate relief, as claimed by her. The averments of the petition of complaint do not specify any allegation against the OPs no. 2 to 3 but only there was allegation against the OP no. 1 with regard to competency of treating the patient for which the allegation of negligence was brought against her. But it is gathered from our day to day experience that the medical practitioner with an emergency ordinarily tried his/her best to redeem the patient out of the patient’s suffering and the act with negligence does not make any profit to the doctor. Mere fact that the complainant could not achieve desired result instantly by the treatment of the OP no. 1 does not necessarily establish that the doctor was negligent in treating the patient or the hospital was responsible for giving proper service. From the materials on record it appears to us that the complainant was brought to the OP no. 1 at the OP no. 3/Nursing Home for several occasions with a hope that she will be cured by the treatment of the OP no. 1. Since there is no clear allegation against the OP no. 3 in the averments of the petition of complaint for not providing adequate service, Ld. DCDRF was not justified in directing the OP no. 3/Shanti Nursing Home to pay compensation to the complainant.

Ld. Counsel appearing for the appellant in course of hearing drew our attention to the nature of ailment the complainant was suffering and tried to impress that the nature of treatment as given by the OP no. 1 was following the established norms of treating such type of patients and in a case of Vasico Vaginal Fistula after total abdominal hysterectomy being a known complication and the treatment of such a disease has been streamlined. The complication that arose was the leakage of urine which was diagnosed by OP no. 1 as Vasico Vaginal Fistula for which the complainant was advised to undergo another surgery by Dr. G. B. Das, an expert in the field. That being the situation it is very difficult to blame the OP no. 1 and to make her liable for the sufferings of the patient due to the fact that success cannot be achieved in every case and very often success or failure depends upon factor beyond the professiona

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l man’s control, as observed by the Hon’ble Apex Court in Jacob Mathew Vs. States of Punjab and another, reported in (2005) 6 SCC 1. Mere fact that the desired result could not be achieved at the treatment of the OP no. 1 does not establish that the professional man i.e. OP no. 1 herein was negligent in performing her duty rather it is established from the averments of the parties that the patient party was advised to take shelter of another expert in the field but ultimately she was treated at the Christian Medical College at Vellore for ultimate result. That being the situation we are unable to hold the OP no. 1 guilty of medical negligence or deficiency in giving service to the complainant due to the fact that there is no proof of the medical practitioner’s conduct which failed below that of the standard of a reasonably competent practitioner in the field (Ref: Kusum Sharma & others Vs. Bantra Hospital and Medical Research Centre [1 (2010) CPJ 29 (SC)]. Since the negligence being the essential ingredient has not been established we are unable to hold the OP no. 1 negligent in the treatment of the patient without any definite opinion of the experts in the field. In the back ground as discussed above, we allow both the appeals, set aside the judgment impugned resulting that the complaint case stands dismissed. Parties do bear their respective costs of Appeal.
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