DR. ADIT DEY v. SRI DURGA CHARAN SHEE & 2 ORS.

No case laws were referred in the order.

Download Court Copy https://dreamlaw.in/wp-content/uploads/2023/12/task-6.pdf

 Full Text of Judgment:

1. The present Revision Petitions (RPs) have been filed by the Petitioner ( OP No. 2 before the District Forum) against Respondents ( Complainants before the District Forum) as detailed above, under section 21 of Consumer Protection Act 1986, against the common order dated 12.05.2017 of the State Consumer Disputes Redressal Commission West Bengal (here in after referred to as the ‘State Commission’), in First Appeal (FA) No.A/1181 and 1245 of 2014 in which order dated 20.08.2014 of Kolkata Unit – II District Consumer Disputes Redressal Forum (here in after referred to as District Forum) in Consumer Complaint (CC) no. 378 of 2012 was challenged, inter alia praying for setting aside the orders of the Fora below.

2. Notice was issued to the Respondent(s) on 21.09.2017. Petitioner and respondent no.1 and 2 filed their Written Arguments / Synopsis. However, respondent no.3 did not file its Written Arguments / Synopsis.

3. As the afore mentioned RPs have been filed against the common order dated 12.05.2017 of the State Commission, parties involved are the same and issues for consideration/determination are related, these are being taken up together under this order. However, for the sake of convenience, RP No. 1974 of 2017 is treated as the lead case and facts enumerated here in under are taken from RP No.1974 of 2017.

4. Brief facts of the case, as emerged from the RPs, Order of the State Commission,Order of the District Forum and other case records are that complainants namely, Sri Durga Charan Shee and Malay Shee got their mother admitted to OP No.1 Hospital ( S.V.S MarwariHospital) on 25.04.2012 with complaint of fracture Interochentary Femur ( Rt.) (Communited) caused by fall in the bathroom under the treatment of  OP No.2 ( Dr. Aditi Dey) being the visiting Orthopaedic Surgon. Before admission in the said hospital, the operation of Bipolar Hip Prosthesis ( Rt.) was done upon the mother of the complainant on 11.08.2010 at R G Kar Medical College and Hospital where during the post operative period ‘ ball-joint affixed was removed and debridement of the wound was done’. After admission of their mother, OP No.2 Doctor performed the total hip replacement upon the mother of the complainants on 07.05.2012.  According to complainants, after 10 to 12 days of such operation, when the pus was coming out from the site of the operation, they reported the said fact to the OP No.2 Doctor but Doctor did not take any care and forcefully discharged their mother on 29.06.2012. She was re-admitted to the OP No.1 Hospital on 14.07.2012 when the condition of the mother of the complainants further deteriorated. After re-admission, the mother of the Complainants was referred to ITU under Dr. Rahatgi. However, mother of  the complainants expired on 28.07.2012. Being aggrieved of such act, the Complainants filed Consumer Complaint ( CC) before the District Forum and District Forum vide order dated 20.08.2014 allowed the CC. Being aggrieved, OP No.1 ( Hospital ) and OP No.2 ( Doctor) preferred an appeal before the State Commission and State Commission vide common orderdated 12.05.2017 dismissed both the Appeals. Being aggrieved of the said orders of the State Commission, OP No.2 Dr. Adit Dey has filed the present RPs before this Commission.

5. Petitioner has challenged the said Order dated 12.05.2017 of the State Commissionmainly on following grounds:
i. State Commission should have correctly recorded that complainants got their mother admitted at the OP No.1 hospital with complaints of difficulty in walking, after removal of dislocated prosthesis with skeletal traction under regional anesthesia initially implanted at R G Kar Medical College and Hospital.
ii. State Commission failed to note that only after 18 days after the operation was conducted successfully on 07.05.2012, wound detriment and secondary suturing was done by the Petitioner, the patient was discharged ‘on request’ by and / or on behalf of the patient on 29.06.2012 when condition of patient was recorded as ‘fair’, which wasnever challenged by and on behalf of complainants.
iii. State Commission failed to note that patient started to walk with support during her hospital stay and was advised to continue as such at the time of discharge.
iv. In the discharge certificate, there was specific advice to consult endocrinologist for diabetes mellitus, however, no evidence of compliance of such advice was produced bythe complainant at any point of time.
v. State Commission ought to have ascertained whether the medical etiology for which the patient again had to be admitted on 14.07.2012 had any nexus to the development of any infection at the operated site and whether the same could have occurred from non compliance of and / or negligence to the advices recommended in the discharge certificate.
vi. State Commission did not ascertain whether the advice recommended by Petitioner inthe discharge certificate was followed by the patient in the 15 days period after herdischarge before she was again admitted on 14.07.2012.
vii. State Commission did not mention whether re-admission related to the operation / orany other failure of the Petitioner and there is no finding that causing of death of the patient has its genesis or was in any way related to the treatment done by and / oralleged lacking of care by the Petitioner.
viii. In view of more than one doctor being involved with regard to the treatment at different stages, Petitioner cannot be singled out for the responsibility of the same and treating doctors were not made parties in the said case and therefore, complainant ought to have been dismissed for non joinder of the parties.
ix. Operation was performed by the Petitioner jointly with Dr. Rajesh Khusuwah, which State Commission did not note.
x. No expert opinion was obtained by the State Commission as present case involve dcomplicated issue relating to medical treatment.
xi. Principle of ‘Res Ipsa Lquitur’ is not applicable as decided by Hon’ble Supreme Court in V. Krishna Rao Vs. Nikhil Super Speciality Hospital and Anr. Decided on 08.03.2010,
xii. State Commission ought to have noted that Petitioner cannot be held negligent particularly after discharge from the hospital in fair condition on the request by and / oron behalf of the patient on 29.06.2012, upon fresh admission 15 days thereafter with complaints of medical etiology and dying 29 days thereafter.
xiii. State Commission has not recorded what indication made it incumbent for removal of prosthesis from the operated site to check infection, when after debriment and suturing on 25.05.2012, the patient became fairly well and even started walking with support before being discharged from OP No.1 upon fresh admission, 15 days thereafter with complains of medical etiology.
xiv. State Commission failed to note that after discharge on 29.06.2012, despite instruction for attending OPD after 2 weeks / SOS, no contacts whatsoever was made or no information was delivered to the Petitioner at any point of time before 14.07.2012 when the patient was admitted in the same hospital.
xv. State Commission has travelled beyond the jurisdiction to decide of its own that prosthesis is required to be removed from operated site and non-removal of the same was instance of improper care by doctor and unilaterally held without any evidence that patient had infection and same was caused for non-removal of the prosthesis.

6. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
6.1 Counsel for the Petitioner apart from repeating the points which have been stated in para 5, grounds for challenging the order of the State Commission argued that State Commission failed to consider that the cause of death of deceased and as recorded in the Death Certificate was because of Cardio Respiratory failure in case of Septicemia, IHD with T2DM and Dyselectrolytemia and same had no iota of relation with operation conducted by the Petitioner and his fellow doctor. Further, the cause of death was recorded to be ‘natural’. Petitioner was not even a treating doctor in the last days of the deceased and that last treating doctor had never passed any adverse comments about the Petitioner regarding the deceased. Counsel further argued that complainants did not disclose the exact age of the deceased which plays an important role for the knowledge of the treating doctor and that complainants were not ignorant about the health of the deceased.
6.2. It is further argued that respondent no.3 had already paid an amount of Rs.1,00,000/- to the complainants and same has been duly accepted by them. Further, it is argued that consent was taken by the Petitioner and Dr. Khusuwah before performing the operation and risk bond was also signed by the complainants.
6.3. It is further contended by counsel for the Petitioner that without examining the Petitioner, State Commission came to the conclusion that Petitioner used two stage revision of uncemented arthroplasty for revision total hip replacement. Further, complainants failed to prove any negligence on the part of the Petitioner.

Reliance hasbeen placed on the following judgments of the Hon’ble Supreme Court and National Commission :
a. Tanveer Jahan Vs. All India Institute of  Medical Science and Anr. Manu/CF/0321/2020
b. S.K.Jhunjhunwala Vs. Dhanwanti Kumar and Ors. 2015 SCC Online NCDRC1190.
c. Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and Ors.(2010) 3 SCC 480.
d. Jacob Mathew Vs. State of Punjab and Anr. (2005) 6 SCC 1
e. Dr. Harish Kumar Khurana Vs. Joginder Singh and Ors. (2021) 10SCC 291
g. Dr. ( Mrs. ) Chanda Rani Akhouri Vs. Dr. M.A.Methusetupathi 2022 Livelaw ( SC) 391
6.4. Counsel for respondent no.1 and 2 argued that negligence and deficiency on the part of the Petitioner is well proved and life span of the mother of the complainants was decreased due to negligent and defective manner of operation done by the Petitioner. The petitioner did not pay due diligence and care in administering thetreatment without consulting and analyzing the huge prescriptions in respect of previous operation of treatment by doctors of  R G Kar Hospital and Petitioner did notgive fair, reasonable standard of care and competency to the patient and death was caused due to Septicemia. It is further submitted that argument of non joinder of parties do not arise. Further, doctor has not been able to prove by any documentary evidence that Petitioner informed mother of the complainants about the probable side effects of the operation in question, which goes against the standard medical protocol.

7. In this case, there are concurrent findings of both the Fora below against the Petitioner Doctor herein. Extract of  relevant paras of orders of the State Commission is reproduced below:
8. District Forum has given a very detailed order. Extract of relevant portions of order ofthe District Forum is reproduced below:
9. From the above, it is clear that District Forum has gone into all the details of the case and after duly evaluating the evidence before it, has given a well-reasoned order. We tend to agree with the observations and findings of the District forum, which have been upheld bythe State Commission also.

10. In Savita Garg v. Director, National Heart Institute, (2004) 8 SCC 56, the Hon’bleSupreme Court has observed that-
“10. The Consumer Forum is primarily meant to provide better protection in the interest of the consumers and not to short circuit the matter or to defeat the claim ontechnical grounds…….. We cannot place such a heavy burden on the patient or thefamily members/relatives to implead all those doctors who have treated the patient orthe nursing staff to be impleaded as party.………In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there wasno negligence involved in the treatment. Since the burden is on the hospital and the concerned doctor who treated that patient that there no negligence involved in the treatment…………..”

3. Damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant.”

14 The Hon’ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 8th September, 2022, held that:-
“13. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears tothe National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it isfound that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising there visional jurisdiction.

14. In exercising of revisional jurisdiction the National Commission has nojurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act.”

15. We find no illegality or material irregularity or jurisdictional error in the order of  the District Forum and State Commission, hence the same are upheld. Accordingly, both the Revision Petitions are dismissed.

16. The pending IAs in the casess, if any, also stand disposed off.