SAMIKSHA BHATTACHARYA, MEMBER
Today is fixed for passing order.
Heard the Ld. Advocate for the appellant and perused the materials on record.
The instant Appeal is filed within time. Let the Appeal be admitted and registered.
The instant Appeal has been filed under Section 41 of C.P. Act, 2019 by the Appellant/Complainant against the final order dated 19.04.2023 in Complaint Case being No. CC/80/2023 passed by the Ld. District Consumer Disputes Redressal Commission, Howrah.
Ld. District Commission, Howrah, has passed the final order/judgment on 19.04.2023 which is reproduced below:
“Today the case is fixed for admission hearing.
Heard Ld. Advocate for complainants. Perused the petition of complaint and copies of documents and materials on record.
It appears that in support of complaint, complainants files copy of different photocopies of medical papers. We have carefully heard the Ld. Counsel of the complainant and perused the materials on record it is pertinent to mention that we are of the view that in order to proceed further complainant at least has to make out a prima facie case. But on that score complainant has failed to establish that prima facie there is failure of standard medical protocol by the concerned doctor. Alternatively it can be said that prima facie there is no material to proceed further with the case.
Hence,
The instant case cannot be proceeded further.
Thus, the instant case stands rejected.”
Being aggrieved by and dissatisfied with the above order, the appellant/complainant (hereinafter referred to as the ‘complainant’) has filed the instant Appeal.
The facts of the case, in a nutshell, are that the complainant’s wife namely, Smt. Rita Rani Maity (since deceased) was ill on and from 16.10.2022 due to fracture of her leg and immediately the complainant started medical treatment of his wife on 16.10.2022 under Respondent No. 1/OP No. 1 (hereinafter referred to as ‘OP No. 1’) attached to Respondent No. 2/OP No. 2 (hereinafter referred to as ‘OP No. 2’). On 29.10.2022, the complainant’s wife was admitted in the OP No. 2 Nursing Home for operation of her leg and she was discharged from OP No. 2 Nursing Home after proper diagnosis on 01.11.2022 and thereafter, the OP No. 1 being the doctor had prescribed medicine for the patient. Thereafter, on 16.11.2022, the complainant’s wife (since deceased) was again medically treated by OP No. 1 doctor who prescribed some new medicines including Tablet Frolitrax-5 and advised the wife of the complainant to take the said medicine twice a day for three months. After taking the said medicine, the physical condition of the complainant’s wife was started to deteriorate day by day and the wife of the complainant was again admitted in the OP No. 2 Nursing Home in the evening of 03.12.2022 but the condition of the complainant’s wife was deteriorated day by day. Hence, the complainant discharged his wife on 08.12.2022 form the OP No. 2 Nursing Home and the complainant’s wife was admitted in the SSKM Hospital/Respondent No. 5 i.e., OP No. 5 of the original complaint case, for better treatment. Thereafter, the complainant’s wife was shifted from Bed No. 48 to Bed No. F-19 in Calcutta Police Hospital which is part of OP No. 5/Respondent No. 5 for better treatment and OP No. 5 detected the Drug (Methotrexate) induced Aplastic Anaemia of the complainant’s wife now deceased. As per advice of Respondent No. 5/OP No. 5 bone marrow test was done by Respondent No. 4/OP No. 4 and the report was received on 12.12.2022. Proper diagnosis was done OP No. 5 on 22.12.2022 and it was found in details about the side effects of the said medicine Tab-Fortitrax-5 for which the physical condition of the complainant’s wife had been deteriorating day by day and bleeding from the nose of the patient started on and from 16.11.2022. Subsequently, the complainant’s wife was admitted in the OP No. 7/Respondent No. 7 Hospital for better treatment and blood transfusion and some costly injection were prescribed. The complainant’s wife was discharged from OP No. 7 Hospital and thereafter, the patient had been admitted in the OP No. 8/Respondent No. 8 Hospital in a precarious condition but unfortunately the said patient died on 04.03.2023 in the OP No.8/Respondent No. 8 Hospital at a pre-mature age of 52 years.
Hence, the complainant has filed a complaint petition before the Ld. District Commission, Howrah, praying for direction upon OPs/Respondent s No. 1, 2 & 3 to pay sum of Rs.15,00,000/- spent for the treatment of deceased wife of the complainant along with compensation and cost.
The Ld. DCDRC dismissed the Complaint Case on the date of Admission Hearing observing that there is no prima facie case.
Ld. Advocate for the complainant has submitted before this Commission that from the document issued by Respondent No. 5/OP No. 5 it is clear that the diagnosis was “Drug (Methetrexate) induced ‘Aplastic Anaemia’ (Running Page 20 of the Memo of Appeal. The Ld. Advocate for has further submitted that ‘The Indian Medical Council Act, 1956’ the profession conduct has been mentioned in Section 20A. Section 20A reproduced as under:
PROFESSIONAL CONDUCT
20.A
- The Council may prescribe standards of professional conduct and etiquette and a code of ethics for medical practitioners.
- Regulations made by the Council under sub-Section (1) may specify which violations thereof shall constitute infamous conduct in any professional respect, that is to say, professional misconduct, and such provisions shall have effect notwithstanding anything contained in any law for the time being in force.
Upon careful perusal of the record we think that there is obviously a prima facie case of medical negligence since the instant case alleges medical negligence due to over doze of medicine.
Negligence is simply the failure to exercise due care. The three ingredients of medical negligence are as follows:
- The doctor owes a duty of care to the patient.
- The doctor has breached the due care.
- The patient has suffered and injured due to this breach.
The duty owed by a doctor towards his patient, is to “bring to his task a reasonable degree of scale and knowledge” and to exercise “a reasonable degree of care”. The definition of “Medical Negligence” has remained unchanged over the time – Failure to exercise reasonable skill as per the general standards and the prevalent situation is termed as “Medical Negligence”.
Medical negligence is the tort which takes cognizance of the following:
- A legal duty either express or implied to treat patient must exist
- Breach of such legal duty, if any, in comparison to the expected conduct and performance of the people from the same profession.
- Presence of damage caused by such breach which must result in injury which needs to be compensated.
In the instant case, the complainant has alleged that there is wrong doze of the Tablets Folitrax-5 prescribed by OP No. 1 doctor who is attached to OP No. 2 Nursing Home.
From the document annexed with the petition of complaint issued by OP No. 5/Respondent No. 5 it appears that the final diagnosis was drug (Methotrexate) induced Aplastic Anaemia. Therefore, we are of the view that there is certainly a prima facie case of medical negligence. We are astonishing that on the date of admission hearing how the Ld. District Commission rejected the complaint case on the ground that the complainant has failed to establish a prima facie case.
Whether there is certain medical negligence or not that will be proved after taking the evidence of both sides.
From the four corners of the complaint petition, it cannot be said that there is no prima facie case, therefore, the Ld. District Commission has erred in taking the view that there is no prima facie case.
As a result, the order dated 19.04.2023 of the Ld. District Commission, Howrah, is hereby set aside.
Let the Complaint case be admitted and registered.
Ld. District Commission is requested to restore the case in its original file and number and to proceed with the Complaint Case in accordance with law.
The Ld. DCDRC, Howrah is further requested to dispose of the case preferably within 6 (six) months from the date of appearance of the complainant.
Fix 14.08.2023 for appearance of the complainant before the Ld. District Commission, Howrah for receiving further direction.
Consequently, the instant Appeal be and the same is allowed and disposed of accordingly.
Let a copy of this order be sent to the Ld. DCDRC, Howrah at once.
