State Consumer Disputes Redressal CommissionDr. Ashok Kumar Todani. vs Dr. Rahul De. on 17 April, 2017Cause Title/Judgement-Entry 	    	       STATE CONSUMER DISPUTES REDRESSAL COMMISSION  WEST BENGAL  11A, Mirza Ghalib Street, Kolkata - 700087             Complaint Case No. CC/125/2011             1. Dr. Ashok Kumar Todani.  14, P.N. Malia Road, Raniganj, Burdwan District, Pin - 713 347. ...........Complainant(s)   Versus      1. Dr. Rahul De.  C/o National Neuroscience Center, Peerless Hospital Campus, 2nd Floor, 360, Panchasayar, Kolkata-700 094, West Bengal.  2. National Neuroscience Center.  Peerless Hospital Campus, 2nd Floor, 360, Panchasayar, Kolkata-700 094, West Bengal. ............Opp.Party(s)       	    BEFORE:      HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT    HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER          For the Complainant: Mr. Abhik Kr. Das., Advocate    For the Opp. Party:  Mr. Radha Kanta Mukherjee., Advocate      Mr. Soumen Mondal., Advocate     Dated : 17 Apr 2017    	     Final Order / Judgement     HON'BLE MR. TARAPADA GANGOPADHYAY, PRESIDING MEMBERThe present Complaint has been filedu/s 17(1)(a)(i)of the Consumer Protection Act, 1986 by the Complainant, being a doctor, with the allegation of medical negligence against the OP No. 1-Doctor and the OP No. 2-Hospital along with a prayer for direction upon the OPs to pay to the Complainant Rs. 20,00,000/- as compensation for mental agony and negligence and Rs. 5,00,000/- for mental and physical pain, Rs. 12,00,000/- for loss of professional duties and Rs. 5,00,000/- for medical expenses.The facts of the case, as emanating from the materials on records, are, in short, that the Complainant with complaint of 'low back pain radiating to Lt. buttock and back of Lt. thigh' visited the OP No. 1-Doctor on 1.3.2011 at OP No. 2-Centre.  After such visit, the OP No. 1-Doctor advised for MRI of 'lumbosacral spine (plain)' from Woodlands or EKO, as revealed from the prescription dated 1.3.2011 by the OP No. 1-Doctor as available on records.  After such MRI the OP No. 1-Doctor diagnosed the problem as 'Lt. posterolateral disc herniation at L5-S1 with Lt. S1 root compression'.  The OP No. 1-Doctor performed on 2.3.2011 'Lt. L5-S1 microdiscectomy' upon the Complainant as revealed from the prescription dated 28.3.2011 of OP No. 1-Doctor as available on records.  But immediately after such operation, 'Lt. buttock and Lt. thigh pain' re-appeared along with 're-appearance of back pain' as revealed from the prescription dated 28.3.2011 of the OP No. 1-Doctor as available on records.  After such recurrence of the tremendous pain when the Complainant wanted to meet the OP No. 1-Doctor, the OP No. 1-Doctor was not available as averred in the Petition of Complaint.  On 4.3.2011 the OP No. 1-Doctor visited the Complainant and allegedly told the Complainant that the pain management was not his concern and it was the concern of the anaesthetist whose name allegedly was not disclosed to the Complainant.  Then the Complainant visited many doctors in West Bengal but got no relief of back pain, and ultimately visited Ganga Medical Centre & Hospital (P) Ltd., Coimbatore on 21.6.2011, where Dr. S.Rajasekaran diagnosed the case of the Complainant as 'failed back syndrome surgery with L5-S1 left paracentral disc prolapsed with left Radiculopathy' and on 22.6.2011 performed 'Transforaminal Lumbar Interbody Fusion L5-S1' upon the Complainant as evident from the 'Discharge Summary' dated 4.7.2011 of the said Hospital, as available on records.  After such surgery at Coimbatore the Complainant recovered satisfactorily as averred in the Petition of Complaint.  For this treatment the Complainant had to spend Rs. 5,00,000/- and at present has to spend Rs. 25,000/- per month for medication and other expenses as averred in the Petition of Complaint.The Ld. Advocate for the Complainant submits that when the Complainant reported to the OP No. 1-Doctor with complaint of back pain, the OP No. 1 advised the Complainant to get MRI done from Woodlands Hospital or EKO as evident from the prescription by the OP No. 1 and that such specific mention of Hospital or Centre for MRI indicates the illegal financial gain on behalf of the OP No. 1-Doctor and breach of medical ethics on behalf of the OP No. 1-Doctor as well.The Ld. Advocate further submits that noting, in the 'Discharge Summary' dated 4.7.2011 of Ganga Medical Centre & Hospital (P) Ltd., Coimbatore where the Complainant reported after recurrence of the back pain even after surgery by the OP No. 1-Doctor, to the effect of 'failed back syndrome surgery with L5-S1 left paracentral disc prolapsed with left Radiculopathy' clearly indicates the failed surgery by the OP No. 1-Doctor, which points to the medical negligence in surgery by the OP No. 1.The Ld. Advocate continues that undertaking surgery by the OP No. 1-Doctor in the case of  'Lt. posterolateral disc herniation' in question is also indicative of lack of proper skill and care, as an ordinary professional man would have taken, on behalf of the OP No. 1-Doctor because in the case of ailment in question where significant pain did not radiate into leg and does not lead to bladder problem for loss of bowel process but into shoulder and buttock, 73% of people showed reasonable to major improvement without surgery.  Hence, the OP No. 1 should have attempted first non-surgical method of treatment as observed in the website - https://en.wikipedia.org/wiki/Spinal_disc_herniation.The Ld. Advocate also submits that the OP No. 1-Doctor did not respondent to the emergency call of the Complainant on 3.3.2011 which indicates the deficiency in service on the part of the OP No. 1-Doctor.The Ld. Advocate continues that the OP No. 1-Doctor did not discharge the duties, as he owed to the Complainant, properly and hence, the negligence on the part of the OP No. 1 is clearly established.The Ld. Advocate also submits that the OP No. 2-Hospital is also vicariously liable for its failure to ensure proper care and diligence on behalf of its doctor on panel, be it regular or part-time basis, and also for delay in operation for not depositing charges before beginning of the operation.The Ld. Advocate further submits that Consumer Forum on its own decide the case of medical negligence without referring to expert evidence which is not mandatory in all cases as was held by the Hon'ble Supreme Court inV.Kishan Rao Vs. Nikhilsuper Speciality Hospital & Anr., decided on 8.3.2010 in Civil Appeal No. 2641 of 2010.The Ld. Advocate finally submits that the aforesaid submission clearly establishes the breach of duty being one of the components of medical negligence on behalf of the OP No. 1 and that the compensation claimed is reasonable and just in view of the loss of professional income, mental agony, harassment and medical expenses on behalf of the Complainant.The Ld. Advocate concludes that in view of the aforesaid submission, the instant Complaint should be allowed and the compensation claimed be awarded.On the other hand, the Ld. Advocate for the OP No. 1-Doctor submits that the OP No. 1-Doctor advised the Complainant for MRI from Woodlands or EKO for finest quality of MRI for accurate diagnosis of the problem of the Complainant as the MRI machines in the referred centres are '3 TESLA MACHINE' which is not generally available in other disgnostic centres and hence, there was no question of illegal gain or breach of medical ethics on behalf of the OP No. 1-Doctor.The Ld. Advocate further submits that for 'failed surgery' as noted in the Discharge Summary dated 4.7.2011 of Ganga Medical Centre & Hospital (P) Ltd., Coimbatore, the OP No. 1-Doctor cannot be held liable for medical negligence as in the medical treatment there is always uncertainty in respect of success.The Ld. Advocate continues that there is no proof on record about the unsuccessful surgery as the Complainant has alleged against.The Ld. Advocate continues that the OP No. 1-Doctor performed  'microdiscectomy' upon the Complainant as per standard medical practice and hence, there is no negligence on the part of the OP No. 1-Doctor and accordingly, the Complaint appears to be frivolous.The Ld. Advocate adds that after the said surgery, the Complainant walked away independently indicating thereby the absence of failure in surgery.The Ld. Advocate continues that the case suffers from non-joinder of parties being Dr. Somyajit Basu of Park Clinic, Dr. Shyamapada Ghorai of Bangur Institute of Neurosciences and Dr. S.Rajasekaran of Ganga Medical Centre & Hospital (P) Ltd., Coimbatore, who also treated the Complainant and hence, the Complaint is not maintainable.The Ld. Advocate concludes that in view of the aforesaid submission, the instant Complaint should be dismissed the same being  baseless and frivolous one.The Ld. Advocate for the OP No. 2-Hospital submits that the surgery in question was not delayed for non-deposit of hospital charges of Rs. 1,00,000/- as the Complainant has alleged without adducing any proof thereof.The Ld. Advocate continues that as the OP No. 1-Doctor was mere a consultant but not in the pay roll of the OP No. 2-Hospital, so the OP No. 2-Hospital cannot be held liable for any act of the OP No. 1-Doctor.The Ld. Advocate concludes that as there is no deficiency in service on the part of the OP No. 2, so the Complaint should be dismissed so far as the OP No. 2-Hospital is concerned.Heard both the sides, considered their respective submission and perused the materials on records.Before going into the question of medical negligence, as alleged, we deem it just and proper to decide on whether the instant Complaint is maintainable despite its suffering from non-joinder of parties as the OPs have taken recourse to.  It is well-settled by the Hon'ble Supreme Court inSmt. Savita Garg Vs. The Director, National Heart Institute, reported in 2014 (4) 258 (SC) that the Complaint should not be dismissed for non-joinder or mis-joinder of parties.Coming to the issue of medical negligence it is observed that the surgery undertaken by the OP No. 1-Doctor was not essential in the case of ailment in question as the rate of reasonable to major improvement without surgery in the case on hand is 73% as it has been referred to in the publication in the website - https://en.wikipedia.org/wiki/Spinal_disc_herniation.  In the said publication it was also referred that before surgery, which is adopted as last resort, other non-surgical methods, i.e. non-steroidal anti-inflammatory drugs, Spinal manipulation, physical therapy, should be applied first.  In the case on hand, the OP No. 1-Doctor has applied first the last resort, i.e. surgery, without applying the non-surgical methods which can be easily attempted before surgery as reported in the said website.  The aforesaid act on behalf of the OP No. 1-Doctor points to his deficiency in applying the right method of treatment  as also lack of proper care and diligence on behalf of the OP No. 1.The materials on record further reveal that the OP No. 1-Doctor did not attend to the Complainant even once on 3.3.20111, i.e. immediately after the date of operation despite emergency call, which also points to the breach of duty the OP No. 1-Doctor owed to the patient being the Complainant and such breach of duty is one of the components of medical negligence as was held by the Hon'ble Supreme Court inJacob Mathew Vs. State of Punjab & Anr, reported in (2005) 6 SCC 1.Also, in the case on hand the OP No. 1-Doctor has not adduced any evidence showing that the OP No. 1-Doctor informed the Complainant before surgery about the chance of unsuccessfulness of the surgery in question within a short period of time as in the case on hand which also points to the breach of medical ethics on behalf of the OP No. 1-Doctor.The aforesaid discussion clearly establishes the deficiency in service on the part of the OP No. 1-Doctor and hence, the OP No. 1-Doctor cannot escape his liability.The OP No. 2-Hospital is also vicariously liable for the deficiency in service on the part of the OP No. 1-Doctor regardless of the OP No. 1-Doctor being not in the regular pay roll of the OP No. 2-Hospital as was held by the Hon'ble Supreme Court inSmt. Savita Garg Vs. The Director, National Heart Institute(supra), wherein it was held that a hospital is liable for the conduct of its doctor both on the panel or the visiting one.As regards compensation, it appears from the materials on records that the Complainant has suffered financial loss related to his medical profession for a long period of time.  Upon considering this factor as also the fact of mental agony and harassment and the expenses for the treatment awarding of compensation of Rs. 10,00,000/- appears to be reasonable and just.Consequently, the instant Complaint is allowed.  The OPs are directed to pay jointly or severally to the Complainant Rs. 10,00,000/- as compensation and Rs. 10,000/- as litigation cost within 45 days from the date of the order, failing which the OPs shall have to pay interest @ 9% per annum for the entire period of default.             [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS]  PRESIDENT 
     [HON'BLE MR. TARAPADA GANGOPADHYAY]  MEMBER