Dipak Dey vs DEBASHIS SARKAR

THIS is an application under Section 17 of the Consumer Protection Act, 1986 filed by Mr. Dipak Dey (hereinafter referred to as petitioner) against Dr. Debashis Sarkar (O.P. No. 1), Kothari Medical Centre (O.P. No. 2), Administrator, Medical Council of India (O.P. No. 3), and the Secretary, West Bengal Medical Council (O.P. No. 4) praying for an order cancelling the licence of the O.P. No. 2 and directing the O.Ps. to pay a sum of Rs. 10 lacs as damages and a sum of Rs. 1 lac towards the expenditure incurred by the petitioner for his daughter''s treatment. The facts of the case of the petitioner are as follows :

MISS Ruana Dey, since deceased who was the only daughter of the petitioner was admitted in the S.S.K.M. Hospital on 15th March, 1993 under Dr. S.K. Chakraborty and underwent a series of tests from which it was diagnosed that she was suffering from a disease named Systenic Lufus Erithmatosus (in abbreviation called S.L.E.) and since after such diagnosis was made, she was administered Wysolone, steroid which was an indispensable medicine in such a disease. On 14th April, 1993 Ruana was discharged from S.S.K.M. Hospital, but she used to be taken to Dr. Chakraborty regularly thereafter for periodic tests at the outdoor of the S.S.K.M. Hospital and thus Dr. Chakraborty treated her till 24th August, 1995. The tests which were held before such a disease was diagnosed included D.S.-DN.A. (ELISA) test which was conducted on 17th March, 1993 for the first time and thereafter on 31st December, 1993 for the second time and both the tests D.S.-D.N.A. were found to be positive wherefrom Dr. Chakraborty confirmed that Ruana was a patient of S.L.E. and in his last prescription he advised continuation of the said steroid of Wysolone. On 7th October, 1995 Ruana again complained of severe pain in her head and vomiting tendency, but Dr. Chakraborty could not be contacted and hence she was taken to Dr. Debashis Sarkar, M.D. (O.P. No. 1) who examined her in his chamber and saw all the past reports of the tests held and advised immediate admission at Kothari Medical Centre on the plea that her case did not warrant treatment in any Government Hospital on which he had no faith. As per his advice Ruana was immediately admitted at Kothari Medical Centre on 7th September, 1995 at 11. p.m. and from 8th October, 1995 to 24th October, 1995 about 40 (forty) tests were conducted. But not a single D.S.-D.N.A. test. This indicated that Dr. Sarkar was simply beating about the bush and applied the trial and error method to diagnose afresh the disease of Ruana without holding the test which was required viz. D.S.-D.N.A. Dr. Sarkar went on enhancing the dose of Wysolone from 5 mg. to 40 mg., but even then there was no change in the condition of the patent. Thereafter on 10th October, 1995 Dr. Sarkar abruptly stopped giving Wysolone. The increase of the dose of Wysolone and then sudden total stoppage of the same as would be evident from his prescription dated 9th and 10th October, 1995 was uncomprehendable and only led to the conclusion that instead of carrying on his treatment uniformly after making a proper diagnosis was simply experimenting the action of various medicines being applied on Ruana''s body. On 24th October, 1995 Ruana was examined by Dr. Sital Ghosh who after inspection of the previous prescriptions expressed his surprise as to why Dr. Sarkar had not advised D.S.-D.N.A. test when the patient had a past history of S.L.E. Pursuant to his advice arrangement was made for a D.S.-D.N.A. test and blood sample of Ruana was collected on 25th October, 1995, but, curiously, without waiting for the report of such a D.S.-D.N.A. test being received the O.P. No. 1 discharged Ruana from Kothari Medical Centre on 20th October, 1995 and in the discharge certificate the disease as per the final diagnosis was stated to be S.L.E., but surprisingly in the last prescription of Dr. Sarkar there was no direction for continuation of the said steroid by the patient.

The O.P. No. 1 thus from the very inception carried on his treatment in a slip-shod, casual, way-ward and negligent manner. Before the arrival at a proper diagnosis he once applied extra dose of steroid and again abruptly without the same and went on advising for all the other tests except D.S.-D.N.A. though the patient had a past history of S.L.E. His treatment was palpably wrong and was of such a nature that he implied absence of reasonable skill and care on his part. If he found it difficult to properly diagnose the disease, he could have referred this case to some other Specialist but he detained the patient under him and carried on his cruel experimentation to which ultimately Ruana succumbed.

ON 30th October, 1995 the petitioner went to the chamber of Dr. Sarkar along with his daughter Ruana and submitted the report of D.S.-D.N.A. test which he collected and Dr. Sarkar after examining that report told him that his daughter was not suffering from S.L.E. and he told also that her headache was due to migrane and on such a plea Dr. Sarkar changed the medicine. But when the petitioner obtained the report of D.S.-D.N.A. from Kothari Medical Centre he again went to Dr. Sarkar''s chamber on 6th November, 1995 along with Ruana and this time also the Doctor after receiving the report told him emphatically that it was not a case of S.L.E. and changed the prescription again. The new medicines were applied, but to no effect. ON 7th November, 1995 her condition further deteriorated when the petitioner contacted Dr. Sarkar and frantically requested him to pay a visit to his house, but the Doctor denied and suggested over telephone that the same new medicines might be given. He purchased those new medicines and applied to Ruana, but in vain. Then he again contacted the O.P. No. 1 over phone at about 1.30 p.m. when he advised a stemetll injection and a medicine named Trika. In the meantime, the petitioner sent his man to the Doctor''s residence to bring him, but the Doctor flatly refused to come. Ruana could not sleep during the whole night due to convulsion and unbearable pain in her head, neck and arms and ultimately she breathed her last at about 6 a.m. on 8th November, 1995. Thereafter, the petitioner again contacted Dr. Sarkar and conveyed the death news and requested him to come to issue a death certificate but he flatly pleaded his inability to come there from South Calcutta to North Calcutta to issue a death certificate. Such actions clearly manifest the cruelty and brutality on the part of Dr. Sarkar which is most unbecoming of a Member of the noble profession and violative of medical ethics. The petitioner exceeded his financial limits in doing the utmost for proper treatment of his only daughter and spent about Rs. 1 lac and she has claimed compensation to the extent of Rs. 10 lakhs for the utterly negligent treatment of Dr. Sarkar snatching away Ruana who was a blossoming Journalist, a novelist and a new editor of a journal called "Stamps World" and also she was due to appear in the W.B.C.S. Examination to be held in 1996, at the prime age of only 22 years. For the loss of such a promising personality the O.Ps. were definitely liable to pay compensation. Hence this complaint has been filed praying for the reliefs stated above.

BEFORE filing this petition the petitioner lodged a complaint before the O.P. Nos. 3 and 4 but by their letter dated 15th September, 1997 they informed him that the matter has been referred to Penal and Ethical Cases Committee and the same was being investigated but till date no outcome of such an enquiry has been intimated to him. The petitioner incurred an expenditure of Rs. 1 lac towards the medical treatment of the deceased and also the petitioner is entitled to get the compensation and damages to the extent of Rs. 10 lacs for the negligent and erroneous treatment meted out to her which ultimately laid to her death. Hence, this complaint. The O.P. Nos. 1 and 2 have contested this petition by filing written statements denying therein all the material allegations of the petitioner.

THE petitioner has affirmed affidavit on evidence to the same effect as stated in the complaint discussed above. As against that, the O.P. No. 1 Dr. Debashis Sarkar has affirmed and filed counter affidavit on evidence. Apart from denying all the material allegations levelled by the petitioner, O.P. No. 1 has made out his positive case as follows :

ON 7th October, 1995 when the patient was brought to him with a complaint of intense headache of 4 day'' duration, fever, sleeplessness and breathing difficulty, the doctor clinically examined her and found, inter alia, that she had blood pressure of 130/90 m.m. of Hg., border line neck rigidity, tenderness in A.P. Gastrium and along the line of colon. He also examined the past reports and the treatment papers of the patient to the extent produced before him and considering the condition of the patient he advised her admission in Kothari Medical Centre and his such findings and advices were recorded in his prescription dated 7th October, 1995. After the patient was admitted in Kothari Medical Centre and during her stay there up to 24th October, 1995 several tests and examinations were conducted which were required for her proper treatment. In order to offer the best possible treatment to the patient he also got her clinically examined by several other specialists of different branches of medical science and consulted them. They were Doctors, viz. Arabinda Mukherjee, Neurologist; Dr. K.K. Jalan, Gastroenterologist; Dr. Prasanta Kr. Bose, E.N.T. Surgeon; Dr. J. Math, Surgeon, and Dr. Sital Ghosh, Specialist in general medicine. Besides his junior Dr. Samatirtha Chandra has also attended the patient. It is further stated Doctor Sarkar (O.P. No. 1) that there is no such test in medical (sic.) called D.S.-D.N.A. test and the correct nomenclature "Anti D.S.-D.N.A. (Anti Double Strauded Deoxi Neuclatic Acid) Elisa Test". He advised this test on 20th October, 1995 and not before hand for the reason that after admission at Kothari Medical Centre she was prescribed and administered Decadron Injection which was a strong dose of steroid between the 9th and 15th October, 1995 and such a dose of steroid was gradually reduced during the period from 16th October to 20th October, because according to medical science when a patient was being administered steroid of substantial dose, if such anti D.S.-D.N.A. test is done, the report might give false or negative result and this is the reason why Anti D.S.-D.N.A. test was not prescribed by him prior to 20th October, 1995. It is further stated by the O.P. No. 1 that when the patient was admitted at Kothari Medical Centre, he prescribed Wysolone 10 mg. tablet on 7th October, 1995 as she had been already taking these medicines for a long time and since the patient was known to have S.L.E. (Systenic Lufus Erithmatosus) and since her headache was getting aggravated, the dose of Wysolone was increased to 40 mg. per day on 8th October, 1995 being applied from the next day. On 9th October he received the scan report of the brain of the patient indicating "defuse white matter oedema" and on getting such report he stopped the Wysolone tablet, because this would be even insufficient dose of steroid to treat such a case of white matter oedema of the brain and he prescribed Decadron Injection twice daily. It was needless to mention that Decadron was much stronger steroid than Wysolone and it was a steroid which had been accepted by the medical science to be prescribed and applied for treatment of brain oedema and the treatment which he extended to 7th to 9th October was strictly according to the norms prescribed by the medical science. As to the allegations of the petitioner that this Doctor did not prescribe the test called D.S.-D.N.A. for S.L.E. till Dr. Sital Ghosh suggested such a test, the answer of this O.P. is that he prescribed for Anti D.S.-D.N.A. test on 20th October, 1995 and the blood sample was drawn by the O.P. No. 2 on the same day, whereas as per Dr. Ghosh''s advice the sample for this test was again drawn on 25th October, 1995. It is then stated by this O.P. No. 1 in his counter affidavit that since the patient party was insisting on his discharging the patient on the plea that the cost of medical expenditure was going beyond their means he discharged the patient on 28th October, 1995 with a request to come for regular check-up. Since the patient was applied sol method 1 g.m. I.V. on 25th, 26th and 27th and since this was the highest dose of steroid, medical science did not prescribe for further steroid before lapse of 7 days, that too, depending on the condition of the patient. Since sol method was prescribed by Dr. Sital Ghosh and prior to that he (O.P. No. 1) prescribed Decadron which was also a strong steroid, there was no question of prescribing steroid at the time of discharge of the patient. Next it is stated by this Doctor that on 30th October, 1995 when the patient complained of fever and rigor he prescribed certain anti-Malaria medicines in view of the fact that about 10 days back she had an attack of Malaria. On 7th November, 1995 at evening when he was engaged in treating his patient at his chamber, he received the information from the petitioner that his daughter was incessantly vomiting blood and he called him to pay visit at his residence at Amhrat Street but since it was at a time when his chamber was crowded and some patients with emergency problems were waiting he could not comply with this request and he told the complainant that as his daughter was vomiting blood, it was a case of upper gastro-intestinal haemorrhage and he could not deal with such a disease at house and it required hospitalisation and observation and also she might require blood transfusion and as her admission was a must, he should get his daughter immediately admitted in some hospital or nursing home without wasting time and without waiting for him to cross half of the city in the rush hour driving to find out his residence where he had never gone. He advised that an ambulance would be required for carrying her daughter to hospital easily and swiftly. But the petitioner did not listen to his advice. As he had already spent a lot of money, he was not prepared for hospitalisation. When this Doctor suggested that he could try to arrange for her hospitalisation in a cheaper Nursing Home in his locality where he (the doctor) could manage the girl, but the petitioner angrilly disconnected the phone at this. It is further stated by the O.P. No. 1 that to the complaint that was lodged by the petitioner before the Medical Council of India, he had given his reply and the Medical Council after consideration of the entire aspects of the matter held in its meeting dated 14th September, 1999 that the allegations of the complainant could not be sustained and this finding was made known to the petitioner by the Council''s letter dated 25th February, 2000. According to this O.P., the complaint has been filed with a malafide intention to harass his professional reputation and the same being frivolous and vexatious should be dismissed with compensatory cost of Rs. 10,000/- in his favour.

It is to be mentioned that as against this counter affidavit there has been no further affidavit in opposition from the side of the petitioner.

THE O.P. No. 2, Kothari Medical Research Centre has filed a separate written objection denying therein all the material allegations of the complaint and averring that Doctor treats a patient to the best of his ability and merely because various tests were conducted, but a particular test was not conducted, no case of deficiency in service can be said to have been made out. It is further stated that the allegations made by the petitioner are absolutely vague and not backed by any cogent evidence such as expert''s opinion or medical journals. It is also stated that the entire allegations are after-thought, since even after the discharge of the patient on 28th October, 1995 till the patient expired on 18th November, 1995, the complainant never sought advice of any other Doctors, even though they were dissatisfied with the treatment rendered by Dr. Sarkar as now alleged in the complaint. THE complaint being false and frivolous should be summarily dismissed. The petitioner''s main ground of attack is the fact that the doctor (O.P. No. 1) prescribed a strong steroid, viz., Wysolone 40 mg. without holding any Anti DS-DNA test or ascertaining whether he was really a patient of S.L.E. Mr. Nayek has emphatically argued that the doctor ought to have held such test on the very first day before prescribing for or applying on the patient such high dose of a strong steroid, but he did not care to do that; on the contrary, he started the treatment on his assumption that she was S.L.E. patient. In other words, Mr. Nayek continues, the doctor never made any attempt at diagnosing the case properly, but went on applying such heavy dose of steroid, while carrying out his cruel experimentation on this patient by conducting about 40 other tests on her during a period of 3 weeks of her stay at that Hospital and here he committed the blunder; he became guilty of being negligent in his duty as a physician and of being deficient in rendering his service.

BUT this argument does not appear to us to be much impressive. When Ruana was taken to the O.P. No. 1, she was admittedly a known patient of S.L.E. It is the case of the petitioner himself (vide paragraphs 2, 3 and 4 of his affidavit) that his daughter was first admitted in S.S.K.M. Hospital on 15th March, 1993 under Dr. S.K. Chakraborty and she had undergone a series of tests from which it was diagnosed that she was suffering from Systenic Lufus Erithmatosus, i.e., S.L.E. and after such diagnosis of the disease a steroid named Wysolone was administered on her and Anti DS-DNA test was conducted on her twice on 17th March and 30th December, 1993 and in both the tests the result was positive wherefrom Dr. Chakraborty confirmed that Ruana was a patient of SLE and Dr. Chakraborty in his last prescription advised continuation of that steroid, Wysolone, on the patient from the contents of paragraph-4 of the affidavit it transpires that he shifted to Dr. Debashis Sarkar (O.P. No. 1) from the erstwhile Doctor S.K. Chakraborty not because he lost faith in the process of treatment followed by the latter or had any doubt about its efficacy, but because that Doctor could not be contacted when on 7th October, 1995, Ruana suddenly complained of severe pain in the head with vomiting tendency. If with this the statement made in paragraph 20 of the complainant''s affidavit is added the above case becomes further strengthened that his daughter was an established patient of SLE. It is also revealed from the Annexure-C filed and relied upon by the complainant, a report of DS-DNA test held at the Pathology Department of the Suraksha Eye Research (P) Ltd. dated 31.12.1993, that the antibodies to DS-DNA of this patient were found to be moderately positive. Over and above, in the Discharge Certificates of both the S.S.K.M. Hospital and the Kothari Medical Centre she was shown as a SLE patient. It is the complainant''s case again (vide paragraph 4 of his affidavit) that when he took his daughter to the O.P. No. 1 on 7th October, the doctor examined her in his chamber and perused all the previous test reports. So, if under such circumstances when admittedly and provenly the ailing girl was a patient of SLE for 3 years, the doctor without unnecessarily prescribing another Anti DS-DNA test at that critical stage and waiting unnecessarily for the result of such a test to come went on applying the steroid at such a dosage, as would be appropriate according to his opinion, he cannot be blameworthy on the score of deficiency of service either from the point of view of medical ethics or under any rule of the statute. Had there been no such history and background and the patient not already undergone such tests, then of course there might be some grounds to subject such an action of the doctor to question. We detect no element of negligence in such an act of the doctor. On the other hand, his conducting 40 other tests on the patient rather show that he was leaving no stone unturned to confirm that she was not attacked with any other disease. It has been urged on behalf of the complainant that a medical expert like Dr. Sital Ghosh examined this patient on 24th October and on inspection of various prescriptions he expressed his surprise that the patient had not been referred to for DS-DNA test when she had a history of SLE and that pursuant to such advice of this Dr. Ghosh blood sample of this patient was taken on 25th October for holding such test. But this criticism has not been substantiated from the records which, on the contrary, show otherwise. Such a test was prescribed by the O.P. No. 1 on an earlier date, viz., 20th October on which date the patient''s blood sample was also taken. This positive statement occurring in the counter affidavit of the O.P. No. 1 remains unchallenged. Moreover, the petitioner has not filed a single scrap of paper containing any such opinion or remark of Dr. Sital Ghosh, either in the form of affidavit on evidence or in any form.

MR. Nayek has repeatedly argued that the O.P. No. 1 committed an act of negligence by continuing the treatment for SLE and applying such heavy dose of steroid without holding an Anti DS-DNA test afresh when the patient was taken to him for the first time. But, as we have already held above, we do not find any substance in such a contention. Not only that such a test had already been held thrice during the last 3 years prior to the patient''s being brought to Dr. Sarkar by two reputed organisations of Pathology, but also during the subsequent period from the two separate tests of this kind the disease was diagnosed as SLE and this position is admitted and accepted by the complainant who has not raised any question against such reports. If that be so, we fail to understood what difference could be made in the situation by ordering an Anti DS-DNA test a few days earlier or what fault could be said to have been indulged in by this physician by prescribing strong steroids which were undisputedly the fitting antidotes for a disease like SLE. MR. Nayek''s contention in this context that such high and heavy doses of steroid were not required for this patient and they being erroneously applied brought an untimely end of the life of the patient in the result has remained a far cry. He has not made any attempt at controverting the positive statements made by the O.P. No. 1 in his counter affidavit (vide paragraph 10) as follows. On 7th October when the patient was admitted in the Kothari Medical Centre he prescribed Wysolone 10 mg. tablet as she had been getting this for a long time, but since she was known to have SLE and since her headache was getting aggravated, the dose of Wysolone was increased to 40 mg. per day with effect from 9th October. On 9th October the scan report of the brain of the patient indicated Defuse White Matter Oedema and looking at such report he stopped Wysolone tablet, as even this would be insufficient dose of steroid to treat white matter oedema of the brain and he prescribed 8 mg. twice daily, because Decadron was a much stronger steroid than Wysolone and was accepted by the Medical Science to be prescribed for treatment of brain oedema. The O.P. No. 1 further states that the treatment which he extended to the patient from 7th to 9th October was strictly according to the norms of medical science.

IT is curious that the petitioner-complainant has not filed any affidavit-in-opposition and has allowed such positive statements in the affidavit of the O.P. No. 1 to remain uncontroverted. This means that they are to be taken as admitted as per the doctrine of Non-traverse. That apart, he has also not examined any Medical Expert or has not produced the affidavit on evidence of any such specialist giving an opinion that the above remarks of the O.P. No. 1, who is also an expert on the subject, are wrong or false. That being the position, the above statements of P.W. 1 are to be taken as reliable, substantial and full of force and they afford a satisfactory explanation as to why medicines with such dosage were applied on the patient. Similarly, in his counter affidavit the O.P. No. 1 has made another vital statement (vide Para-9) which also remains uncontroverted. This is as follows : "According to medical science when a patient has been administered steroid of substantial dose, if Anti DS-DNA test is done, the report may give false negative result. For the above reason Anti DS-DNA test was not prescribed by me prior to 20th October, 1995....". This is the answer to another charge levelled by the complainant that the O.P. No. 1 was guilty of medical negligence having applied heavy dose of steroid without holding a fresh Anti DS-DNA test... It is O.P. No. 1''s case that the dose of steroid was gradually reduced from 16th October till 20th October. The complainant has neither disputed these statements, nor has obtained the opinion of any medical expert by way of adducing evidence to negate the effect thereof. The O.P. No. 1, admittedly, is a qualified doctor himself and an expert on this subject. If an expert-opinion given by him is not challenged or assailed or even denied as correct by the other side by means of affidavit-in-opposition or otherwise there is no reason or justification why it should not be accepted by us and relied upon and hence we hold that no act of medical negligence was committed by the O.P. No. 1 by prescribing the abovementioned steroid without conducting a fresh Anti DS-DNA test at the very beginning. Apart from such an opinion - evidence remaining unchallenged Mr. Sil has placed an authority in support of this contention. This is a book styled defied as "Clinical Laboratory Methods" by John D. Bauer 9th Ed. At P-1099 of this book it is laid down that some limitations to the Anti DS-DNA test are that SLE patients undergoing steroid therapy may have negative test results and some drugs may induce DNA antibody production.

That the stand taken by the petitioner in his complaint or affidavit on evidence suffers from self-contradiction is reflected in the statement made in Para-20 of his affidavit. His statement that Ruana was a patient of SLE as per the previous test reports and his giving an indication that Dr. S.K. Chakraborty provided the right kind of treatment by applying the steroid, Wysolone, on her are incompatible with his statement charging the O.P. with medical negligence on the score of his not trying to diagnose the disease by holding a fresh test or of his applying Wysolone at a gradually higher dose.

THE decision of the Apex Court reported in AIR 1969 SC 128 referred to by Mr. Nayek cannot be attracted to the present case. Because, in this case under reference the failure of the doctor to properly diagnose the disease was found to be a deficiency in service, but in our present case no question of any mistaken diagnosis arises. Here the doctor after having perused the previous reports and prescriptions and also examining the patient who was a known patient of SLE for 3 years continued the same steroid without obtaining another test report at that very juncture for the reason that if a patient takes such a steroid at a high dose for a continuous period then in the midst of such a course if Anti DS-DNA test is held, the result may be deceptively negative and that is why he (the doctor) conducted such a test after about two weeks after gradually reducing the dosage of the steroid. The mere fact that the patient ultimately could not survive and the treatment of the doctor did not yield positive result cannot by itself be taken to constitute deficiency of service on the part of the doctor. As has been held by the Supreme Court in its judgment reported in (2001) 1 SCC, R.S. Bagga v. K.R.D. Airlines and Anr., inefficiency, lack of due care, absence of bonafides, rashness, haste or omission and the like may be the factors ascertain the deficiency in rendering the service. It has been further held there that if the action of the respondent is found to be in good faith and he has taken all precautions and care and his action or the final decision was taken in all earnestness keeping in view the welfare and well-being of the subject in question, then he cannot be held guilty of medical negligence even if the patient succumb to the disease. Here in the instant case from the admitted facts it is clear before us that the doctor took all possible care and caution for the right treatment of such a patient since after she had been taken to him. He clinically examined her and perused the papers, viz., the prescriptions and the pathological reports for the last 3 years for which the girl had been suffering from this disease. He applied the medicine (steroid) at once. He conducted various other tests to eliminate the possibility of the attack of any other disease than the SLE which had already been detected by some reputed pathological institutions. Not only that, it was at his instance that the patient was examined by 5 (five) other medical experts who were all renowned specialists in different branches of medical science to obtain their valuable opinion and thereby to make his method of treatment free from any infirmity as far as practicable. In the face of all such circumstances we do not find the trace of any negligence or deficiency on the part of this doctor.

SIMPLY because the patient finally died, negligence cannot be imputed in the Doctor, if it is found that he exercised reasonable skill and care and discharged his duties in good faith. In Hunter v. Honley, (1995) SLT 213, Lord President Clyde observed that the medical man is not an insurer and he does not warrant that his treatment will succeed or that he will perform cure. In our instant case, it should not be forgotten that the disease from which the patient was suffering was a dreadful one. Moreover, she was brought to the O.P. No. 1 after 3 years of her suffering from it when her condition deteriorated and became critical. Mr. Sil, the learned Advocate for the O.P., has cited several authorities to highlight how dreaded and dangerous this disease SLE is. Thus in Harrison''s Principles of Internal Medicine (13th Ed.) at P-167 it has been laid down that there is no cure for SLE and survival in such patients is approximately over 70 percent and survival is lowest in non-white patients. In complete Home Medical Guide by American College of Physicians at page 462, it has been said that there is no cure for SLE and the treatment is aimed at relieving the symptoms and alowing the progression of the condition. In another book, viz. Robin''s Pathologic Basis of Disease, 6th Edition at P-224 the opinion has been given that the course of this disease is variable and almost unpredictable and patients treated with steroids and immuno-suppressive drugs incur the usual risks associated with such therapy. This being the nature of the disease in question and the patient being brought before the O.P. No. 1 belatedly and in a serious condition, Mr. Sil contends, it will be unwarranted to attribute the failure of the treatment to any negligence or shortcoming on the part of the doctor particularly when the doctor was found to have taken all reasonable care to afford to her the best of the treatment as far as practicable within that limited frame work of time. We do not find any fault with this payment. The second act of negligence of the Doctor (O.P. No. 1) as alleged by the petitioner and as canvassed by Mr. Nayek in his argument consists in the doctor''s prescribing a medicine "Cloroquin" and applying a course of it to the patient without holding any test to ascertain if she had been attacked with Malaria... As against this, the contention of the O.P. No. 1 is that Cloroquin was administered in view of the history of the patient''s having been attack with Malaria only 10 (ten) days back accompanied by a complaint of rigor and secondly, and more importantly, because Cloroquin is required to be applied for treatment of the disease, SLE, also. In support of this contention Mr. Seal refers to an authority - a book styled as Park''s Text Book of Preventive and Social Medicine at Page-195 of which under the heading "Approaches and Strategies of Malaria Control" it has been laid down that all fever cases attending dispensaries or hospitals for treatment should be presumed to be suffering from Malaria and, therefore, in case Laboratory diagnosis is not immediately possible, the differential diagnosis on clinical grounds should be made. It is further observed in this book that treatment of this disease should be presumptive and all fever cases should be assumed to be due to Malaria and a single dose of Cloroquin Phosphate in 600 mg. ( 4 tablets) to adults should be administered in order to relieve symptoms possibly due to Malaria and reduce mortality and morbidity. In view of all these reasons we do not think that there had been any fault on the part of the O.P. No. 1 when he administed Chloroquin to the patient considering that she was having rigor and the fact that she had an attack of Malaria about 10/12 days back. Next it is urged by Mr. Nayek that deficiency of service on the part of the doctor was at galore when he discharged the patient from Kothari Medical Centre on 28th October without getting the report of Anti DS-DNA test that was held on 28th October, but stating in the Discharge Certificate that she was a patient of SLE in white matter Actene of brain. To this the answer of the O.P. No. 1 is that the petitioner was insisting since 24th October that the patient be discharged on the plea that it was not being possible for him to bear the costs of her hospitalisation there as those were going beyond his means and in such a situation the patient was discharged on 28th October with a request to come for regular check-up. It is to be noted that as against this positive statement of the O.P. No. 1 on affidavit the petitioner has not filed any affidavit in opposition, so that the statement remains totally unchallenged and hence practically admitted. In that view of the matter we cannot but rely on this and find the above charge of the petitioner unsubstantiated.

THE last point canvassed by Mr. Nayek on the score of deficiency of service is the Doctor''s refusal to go to the residence of the patient to see her after she had been discharged from Kothari Medical Centre when the petitioner gave a call to him over the phone on 7th November, 1995 in view of deteriorating condition of the patient and her vomiting blood. THE answer to this charge has been given by the O.P. No. 1 in paragraph 15 of his counter affidavit on evidence which has already been discussed above. He has inter alia stated there that on that evening at that point of time his chamber was crowded with patients some of whom were with emergency problems and as he had to find out the house of the petitioner which was unknown to him after crossing half of Calcutta and since the patient''s complaint of vomiting blood could not be dealt with at home, he suggested her immediate hospitalisation, but the petitioner did not listen to his words and angrily disconnected the phone-line. Here again the petitioner has not countered or controverted such positive statements in the least by affirming any affidavit. THErefore, it goes without saying that such statements are to be taken as true. That apart, Mr. Sil relies upon an authority in this regard - a book styled "Medical Negligence" by Michael A Jones where it has been enjoined at P-167 under the heading "Failure to Attend or Treat" that in such circumstances the question of holding the doctor guilty of negligence will depend on a host of circumstances including what commitments he had to other patients at that time.

HOWEVER, we are unable to accept the contention of Mr. Sil that the complaint is not legally maintainable having been filed by the father of the patient who was a major at the time of her death. According to Mr. Sil, in view of the provisions of Section 12 of the C.P. Act the father of the deceased would not be a consumer. But this argument has no legs to stand upon. Section 12 is to be read with Section 2(1)(d)(ii) of the C.P. Act and accordingly a person who hires or avails of any service for consideration paid or promised and includes any beneficiary of such services other than the person who hires or avails of the services. Here, it goes without saying that the petitioner though cannot be said to have availed himself of the services of the Doctor in question or to have stood as a beneficiary, certainly and undisputedly he has hired the services of the Doctor for a consideration which has been paid. Therefore, the petitioner can be termed as a consumer without any hesitation and has locus standi to file this complaint. The other contention of Mr. Sil which is equally unacceptable to us is that in view of complicated nature of this case or intricate questions of civil nature being involved in the trial of this case it should be sent to any appropriate Civil Court for its adjudication and should not be heard or decided by this Commission. In support of his argument Mr. Sil refers to the judgment of the Supreme Court in Indian Medical Association v. V.P. Shantha & Ors., reported in III (1995) CPJ 1 (SC), where it was observed that in complaints involving complicated issues requiring recording of evidence of experts the complainant could be asked to approach the Civil Court for appropriate relief, because the right of the consumer to approach the Civil Court had been kept preserved by the C.P. Act by virtue of the provisions of Section 3 which prescribed that the provisions of the Act should be in addition to and not in derogation of the provisions of any other law for the time being in force. But we are not impressed by this argument. What has been enjoined in the above decision is the general principle to be borne in mind. That does not mean that in any and every case apparently wearing a look of complexity in the nature or vastness the volume of the evidence that may be required to be adduced, such a measure should be adopted. On the contrary, the Apex Court in some of its more recent judgments has expressed its disinclination to treat all such cases as worthy of being referred to Civil Court irrespective of the prevalence of circumstances not justifying such banishment. Thus, in the decision reported in III (2002) CPJ 8 (SC)=IV (2002) SLT 714=AIR 2002 SC 2931, J.J. Merchant & Ors. v. S. Chaturbedi, it has been held by this Court that merely because it is provided under the law that Commission or Forum is required to have summary trial would hardly be a ground for directing a consumer to approach the Civil Court and the Commission being headed by a retired High Court Judge is competent to decide complicated issues of law and facts. This is specially so because the Act contains exhaustive procedure in conformity to the principles of natural justice and it should also be kept in mind that the alternative, efficatious, simple, inexpensive and speedy remedy which has been provided by the Legislature for a consumer should not be curtailed on such a ground. In another judgment reported in (1998) 8 SCC 387, A.J. Paper Mills v. State Bank of India, the Apex Court has held that while the Court would be reluctant to interfere with an order of the Commission that decides at an initial stage of a complaint that complicated questions of fact and law arise and that, therefore, the complainant must go before a Civil Court, we cannot be oblivious of the fact that in this case four years have passed and all the evidence has already been led by both sides before the Commission and in such circumstances the Court thinks that the Commission must itself proceed to hear and decide the complaint and with this observation the Hon''ble Court set aside the order of the National Commission relegating the complainant to a Civil Suit at a belated stage. In our present case also the circumstances are quite similar. Apart from the fact that here the questions or issues raised by the parties do not appear to us to be so complicated that this Commission is in any way unable to adjudicate them while holding a summary trial of the case, in this case long 6 (six) years have already elapsed since after it was filed and affidavits on evidence also were filed by both sides long back and arguments also have been advanced by both with great strain and after all this if it is now sent to a Civil Court for a fresh trial, there cannot be a greater travesty of justice.

We may rely upon still another decision (unreported) which was pronounced by the National Commission in Revision Petition No. 1616 of 2001 Smt. Krishna Hazra v. Dr. S.K. Bindai & Ors., against the judgment of this State Commission in S.C. No. 670/A/1997 vide order dated 30.7.2002 of the National Commission. It was held that both the District Forum and the State Commission erred in dismissing the complaint on the ground that the matter should have been referred to Civil Court as complicated questions arose. It was then held by the National Commission that District Forum failed to exercise the jurisdiction vested in it and the State Commission passed an erroneous order by affirming that judgment of the District Forum. In view of the settled position in this regard as discussed above we do not approve of the preposition moved by Mr. Sil that this matter should be sent to Civil Court for trial. Regard being had to the entire discussion made above we are constrained to hold that the petitioner has not been able to establish that there was any medical negligence or deficiency of service on the part of the O.P. No. 1 who treated the deceased or, for that matter, on the part of the O.P. No. 2, the Kothari Medical and Research Centre, where the deceased was hospitalised. In the result, therefore, we dismiss the complaint. However, considering the circumstances we do not pass any order as to costs. Complaint dismissed.