1. -THIS is a complaint under Section 17 of the C.P. Act, 1986 filed by one Sri Tapan Banerjee (hereinafter referred to as the complainant)
against Dr. Jayanta Basu (O.P. No. 1), Dr. Kishalay Dutta (O.P. No. 2) and Woodland Hospital and Medical Research Centre Limited (O.P.
No. 3) claiming a sum of Rs. 5,46,279/- as compensation and medical expenses incurred by him in the medical treatment of his daughter since
deceased. The facts of his case are in brief as follows: His only daughter named Rajashree Banerjee suffering from kidney trouble was admitted in
the Woodland Hospital (O.P. No. 3). At that time her age was 25 and she was then temporarily employed as a teacher in the Duff School. Before
getting her admitted in the said hospital, the complainant consulted Dr. Shyamal Das of S.S.K.M. Hospital who visited Rajashree and treated her
by prescribing certain medical tests. In the meantime the complainant get in touch with Dr. Kishalay Dutta (O.P. No. 2) who also saw his daughter
and diagnosed the disease as thyroid Gland Expansion and Anaemia. He also advised the patient to take proteinful eatables and drinks and
Rajashree remained under his treatment for two and half years but her ailments and health deteriorated day-by-day. At this time the complainant
consulted another local physician who prescribed certain medical tests to be held immediately and after holding such tests they came to know that
E.S.R. level of Rajashree was very high and then the complainant contacted Ramkrishna Seva Pratisthan on 25.8.1995. By holding some tests the
hospital came to know that both the kidneys of Rajashree became non-functional. The complainant then reported the matter to the O.P. No. 2 Dr.
Kishalay Dutta who contacted Dr. Jayanta Basu (O.P. No. 1) of Woodland Nursing Home. Dr. Basu checked Rajashree in several ways through
costly medical tests and confirmed that Rajashree had lost both of her kidneys. Under such circumstances the wife of the complainant donated a
kidney to Rajashree that was implanted into Rajashree''s body by Dr. Shibaji Basu on 11.11.1995 at Woodland Nursing Home (O.P. No. 3). At
this stage the O.P. Nos. 1 and 2 advised the complainant to take his daughter to Vellore for better transplantation and the complainant accordingly
procured about Rs. 3,00,000/- by way of donation by giving advertisement in the newspapers, but not a single doctor rendered proper services to
Rajashree nor they sacrificed their fees. Rajashree was kept under the treatment of Dr. Jayanta Basu and according to his advice the complainant
kept watch over Rajashree''s health. Since second week of September, 1996 Rajashree felt a pain in her waist and she had little temperature also.
Immediately the complainant reported the matter to Dr. Jayanta Basu but Dr. Basu did not take proper care or give proper advice so that the pain
and temperature of Rajashree increased day-by-day. Dr. Basu advised X-ray of Rajashree''s right waist but nothing was found. Then he further
advised hot bag therapy but Rajashree did not recover either from pain or from fever, temperature having risen upto 1050 F. Dr. Basu then
advised her blood test and seeing the result of such tests he diagnosed Ecelia and prescribed painful injection but the health of Rajashree went on
deteriorating day-by-day. The doctor advised pain killer like Voveran. At this stage on 30.9.1996 Rajashree was again admitted in the Woodland
Nursing Home for her proper treatment. Dr. Jayanta Basu treated her again but released her on 4.10.1996 on the plea that he would be out of
station from 5.10.1996 to attend a meeting. Though the fever and the pain of Rajashree remained in the same condition Dr. Basu simply advised
the same pain killer and Voveran and Crocin. Under such circumstances Rajashree was taken home again with such fever and pain. Thereafter
Rajashree remained unattended till 10.10.1996. The complainant consulted other doctors due to non-availability of Dr. Jayanta Basu but no doctor
agreed to take the risk in treating her but they advised follow-up of Dr. Jayanta Basu''s advises. Dr. Basu returned on 10.10.1996 and when the
complainant contacted him he adviced re-admission of Rajashree into Woodland Hospital on 11.10.1996. The hospital authority gave an injection
for her excessive pain and for several days she was kept under the influence of such injection without being given any food. The hospital authority
appointed special nurses to attend Rajashree but those nurses were inept and they had no elementary knowledge of nursing. Dr. Basu also did not
supply any information about the condition of Rajashree to the complainant or his wife during this period and even he did not let them know as to
when and where he used to visit Rajashree. At this time as per advice of Dr. Jayanta Basu the complainant took Rajashree to Birla Heart Centre
for her Renogram and M.R.I. but condition of Rajashree worsened. On 13.10.1996 the wife of the complainant contacted Dr. Basu over
telephone and reported to him about the condition of Rajashree but Dr. Basu angrily replied that he was treating her well and nothing was there to
be worried. But Dr. Basu actually did not take any care about the condition of the patient and on 15.10.1996 he advised Isonex and Streptomycin
tablets and upon taking such medicines Rajashree''s condition of health deteriorated more rapidly and on the same day her lumber-puncture also
was made at about 11.00 a.m. As a result of this her urination stopped and she felt much pain and in such condition neither the hospital authority
nor Dr. Jayanta Basu took any step to improve her condition in spite of several requests made by the complainant. The attending nurses
intentionally gave wrong information to the complainant stating that the urine of Rajashree was passing normally and as proof they showed bed of
Rajashree being wet with water and the complainant could understand that this was not urine but simple water. THIS fact was confirmed by
Rajashree and when the matter was reported to the hospital authority they did not take any action for smooth passing of her urine by means of
catheter and roughly behaved with the complainant on the plea that visiting hours were over. On 17.10.1996 Rajashree expired in presence of Dr.
Jayanta Basu and the complainant had reason to believe that due to want of care, negligence, prescription of wrong medicines and incorrect
diagnosis Rajashree breathed her last prematurely at the promising age of 25 and for this the O.Ps. are jointly and severally liable and the
complainant has filed this complaint for realising the money which he had spent on account of her medical treatment, various tests, cost of
medicines, etc. etc. and also as compensation for the mental agony and harassment which he and his family had been subjected to due to the
erroneous procedure of treatment indulged in by the O.Ps. and their negligence.
2. THE O.Ps. have contested the complaint by filing separate written statements denying material allegations and contending inter alia as follows.
THE complaint has been filed with an ulterior motive to put the O.P. under ransom. THE complaint is wholly devoid of any substance or cogent
ground. This fact is highlighted by the complainant''s failure to come forward to face the cross-examination or to adduce an iota of evidence in
support of his allegations. THE complaint-allegations having not been substantiated, there is no reason to place any reliance upon the same. THE
complaint being false and frivolous is liable to be dismissed with cost.
The main point for determination in this case is whether the complainant has been able to prove that there was any deficiency in service on the part
of the O.Ps. in the matter of rendered medical treatment to the patient who succumbed to her ailment.
As per the well settled principles, in a complaint of medical negligence it must be established beyond any reasonable doubt that the alleged medical
negligence was the direct cause of injury or loss in question [vide the decision reported in II (1998) CPJ 3, II (2002) CPJ 106 and I (2003) CPJ
216 (NC). But the present case it goes without saying that the complainant has not adduced any evidence in support of his allegations that the
O.Ps. were negligent in the matter of her medical treatment. It is an established principle regarding the law on medical negligence that the alleged
medical negligence or deficiency must be proved by adducing evidence of medical experts [vide the decision reported in I (2003) CPJ 47
(NC)=1999 (3) CPR 13 and I (2003) CPJ 47 (NC), 153 and 239]. Simply because it was the suspicion of the complainant that the doctors or
the hospital (O.P. Nos. 1, 2 and 3) did not take proper care or action in the matter of his daughter''s treatment, Court cannot accept such
suspicion as proof. The complainant has not examined any medical expert on the subject in order to get his pleading supported that the O.Ps. were
negligent or they failed to prescribe the right medicines or diagnose the disease correctly or that the procedure and method of treatment they
followed was wrong. It should be borne in mind that mere pleading is not proof and the criticism levelled by a layman about the quality of medical
treatment provided to the patient cannot be taken as gospel truth and in order to show that such medical treatment offered by the doctor was
wrong or suffering from negligence or lack of expertise he must obtain opinion of the experts on the subject. It has been contended on behalf of the
O.Ps. that kidney transplant carries high risk which is inherent in such an operation. It is a lesson of basic anatomy that human body tends to reject
any foreign body, be it a part of another human being, blood relation or not and kidney is one of the basic and fundamental organs for survival of
any human being. It is further contended that kidney being a vital organ, while doing the job of transplanting it extremely high dose of immune
suppressive drug as per settled practice and procedure is to be administered with the specific object of preventing rejection of foreign body and
this is the reason why the patient having transplantation of kidney carries high risk of secondary infection and once such infection occurs the
chances of survival of the patient become extremely vulnerable. The learned Advocate for the O.P. has quoted from the Americal Renal Transplant
Co-operative tudy to bring home the view that infections (Bacterial, viral, Fungal) are the most common causes of mortality in kidney transplant
recipient. The O.Ps. have referred to the decision reported in II (1997) CPJ 81 (NC), wherein the principle has been enunciated that if for any
contributory factor or negligence a patient dies allegation of negligence or lack of care cannot be attributed to the doctor in such a case because the
well established principle (vide the decision reported in Park Medicine case in III (1999) CPJ 9 (NC) wherein the dictates of the historic case of
the Hatcher v. Black were followed) is that it is sufficient if a doctor exercises the ordinary skill of an ordinary man and he cannot be held guilty or
negligent merely because in a matter of opinion he made an error of judgment or a doctor cannot be held negligent merely because risk inherent
materialised. In the present case giving careful consideration to the way the doctors allegedly held the treatment of the patient we do not find any
trace of negligence on the part of them or even any error of judgment in the matter of prescribing medicines or diagnosis of the disease or post-
operative nursing or treatment in the total absence of any expert opinion to the contrary.
3. HAVING regard to the state of evidence and all the materials on record, therefore, we are not convinced that there has been any negligence or
deficiency on the part of the O.Ps. as alleged in the complaint. Moreover, from a careful reading of the complaint we find that the complainant has
not pin-pointed as to exactly where the negligence or the fault of the doctors as alleged lies. In other words, strictly speaking, practically there is no
allegation of negligence in that sense. Simply because the patient did not survive and succumbed to her ailments, the doctors do not become
automatically negligent, the charge of negligence has to be proved to the hilt. In the result, therefore, the complaint being found without any merit be
dismissed on contest without, however, any cost under the circumstances. Complaint dismissed.