DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _114_ OF ___2016
DATE OF FILING : 29.9.2016 DATE OF PASSING JUDGEMENT: 12.06.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Sahina Parveen, wife of S. K Mohasin at 89/B, R.L Ghosh Road, P.O & P.S Budge Budge, Kolkata – 137.
O.P/O.Ps : 1. Budge Budge Municipal Hospital and Maternity of 71, M.G Road, Budge Budge, Kolkata- 137.
2. Dr. Nikesh Kumar Sing (MD) Sonologist,
3. Dr. Jhumur Bhadury, Regd. No. 51845.
4. Dr. Chyiti Das,
All Doctors, Budge Budge Municipal Hospital and Maternity of 71, M.G Road, Budge Budge, Kolkata – 137.
5. Aroggya Nursing Home of 8/1, Desh Bandhu Chittaranjan Road, Budge Budge, Kolkata – 137.
6. Dr. D.N Mukherjee , Regd. No. 34520
7. Dr. B. D Bhadra
5 and 7 are of Aroggya Nursing Home ,8/1, Desh Bandhu Chittaranjan Road, Budge Budge, Kolkata – 137.
_______________________________________________________________________
J U D G M E N T
Sri Ananta Kumar Kapri, President
The nub of the facts leading to the filing of the instant case by the complainant is that the complainant is a 24 year old house wife. She became gravid for second time and, therefore, attended the O.P Hospital (O.P-1) for regular check-up from the very beginning of her pregnancy. O.P-4 treated her in the said Hospital. The complainant also received regular check-up during her pregnancy from the O.P Nursing Home i.e O.P-5. Both the Hospital and Nursing Home advised her to undergo USG and accordingly USG was done by the O.P-2 i.e the Sonologist of O.P-1 Hospital. O.P-2 came to find a single live foetus in the womb of the complainant. The USG done in the Nursing Home also gave the same result to the effect that a single foetus lies in the womb of the complainant . Thereafter, final date of delivery set in; she started feeling labour pain intensively and this labour pain drove her away to the aforesaid hospital. On 12.1.2016 she was admitted to that hospital for delivery. Delivery was made under the care of O.P-3 i.e RMO of the said hospital and one female baby was delivered. Then , while going to conduct some routine internal examination inside the uterus, O.P-3 came to find that there was another foetus in the womb of the complainant. Noticing this critical condition of the patient, she i.e O.P-3 referred the patient to a nearby State General Hospital for better management as she opined that caesarian operation was the only need of the hour. But, complainant got herself admitted to Aroggya Nursing Home (O.P-5) on 12.1.2016 and delivered a still born child there. Now, it is alleged by the complainant that both the USG reports were incorrect and the incorrect reports were made due to negligence of the doctors, hospital and Nursing Home and, therefore, by filing the instant case she prays for nothing but compensation etc. Hence, the case.
O.P nos. 5,6 and 7 i.e the Nursing Home authority and its Doctors made appearance in this case; but they have not filed any written statement to contest herein. So, the case is heard exparte against them.
It is O.P nos. 1,2,3 and 4 who have been contesting the case by filing written statement. O.P-1 is the hospital authority and it is submitted by it that the complainant was a ‘Janani Suraksha Yojona’ Card Holder registered through “ Äyusmati Scheme of Government of West Bengal”. She did not pay even a single farthing to the hospital for her routine check-up or during delivery or for USG. So ,the complaint lodged by her is not maintainable in law, as she is not a consumer. It is further submitted by the O.P-1 that the complainant was referred to State General Hospital for delivery of her second baby; but , she went to a private Nursing Home i.e O.P-5. No caesarian operation was done there and, therefore, the second baby of the complainant died. There is no negligence of O.P-1 and its doctors and that the complaint should be dismissed in limini with cost.
O.P-2 is a Sonologist on part time basis, acting in Municipal Hospital (O.P-1). According to him no fees was taken by him from the complainant for doing USG and, therefore, the complainant is not a consumer and the complaint is not maintainable in Law against him. He further submits in his written version that as per usual practice of hospital patient deposited charge for USG in hospital and O.P-2 did not take any fees/charge from the complainant.USG machine , as goes his version, is not an end in itself; it may not give real and/or exact image of the particular site of the patient. The device has its own limitation, depending on situation, position, body structure and general condition of patient. So, there is necessity of MRI and CT Scan to detect the exact status of the foetus in the womb. O.P-1 has Brand Medison USG machine which is unable to identify an object if the position of the object remains shadowed behind another object. There is no negligence on the part of O.P-2 and ,therefore, the case should be dismissed against him with cost.
O.P-3 is a resident Medical Officer of the said Hospital i.e O.P-1 . She admitted the patient to the hospital, examined the two USG reports and prescriptions of the complainant and also delivered one female baby of the complainant. According to her, it is mandatory for a Gynecologist to conduct internal examination (Per Vagina ) after delivery. While doing such examination, she detected, to her utter surprise, the presence of another foetus in the womb of the complainant with its hand projecting alongside the head of the vertex position, which in medical terminology is called “Hand Presentation associated with cord presentation”. So, she referred the patient to any nearby State General Hospital for better management by caesarian operation – which facility was not available in her hospital at that moment. Further, it is stated by her in her written version that caesarian operation is done only in her hospital in planned cases, if suggested by M.O during routine antenatal check-up and treatment and such caesarian operation is done by Pediatrician and Anesthetist called from outside. There is no deficiency in service on her part. The complaint is filed only to harass and to put pressure upon the hospital for unlawful gain and ,therefore, the complaint should be dismissed.
O.P-4 is the Medical Officer who rendered regular check-up month by month to the complainant during her pregnancy. It is submitted in the written version by him that on 21.8.2015 the complainant visited the outdoor department of his hospital for the first time. She was gravid for second time. Thereafter, she visited every month for check-up upto 28.12.2015 . On each occasion her body weight and blood pressure were measured with utmost care and caution as usual. As a part of abundant caution, she was advised to undergo some other investigations including USG for determining the pregnancy profile . The increase of body weight was normal, blood pressure and blood sugar was within normal range in antenatal period. She had normal pregnancy signs and symptoms and there was no sign of eclampsia within the complainant. The USG report dated 14.10.2015 issued by O.P-5 showed single live intra-uterine foetus in cephalic presentation of 23 weeks 1 day gestation with adequate amniotic fluid. Foetal weight was 571 gm +/- 20 gms. Another USG done on 29.12.2015 in O.P-1 hospital also revealed the existence of single viable foetus of 35 weeks 0 days in cephalic presentation in the womb of the complainant. In that Sonographic report also estimated foetal weight was 2572 gms +/- 15% and the “Liquor Amnii” or “Amniotic Fluid” was adequate. Nothing sort of any symptoms or parameters found as per guidelines approved by the scriptures in the study of Gynecology and obstetrics to detect the incidents of twins pregnancy. According to the opinion of this Doctor, the case of the complainant is a rare case of hidden twins occurring in single placenta and in a single chorion (Sac) and the babies remained so close to each other that one was shadowed behind the other. There is no deficiency in service on her part and that the case should be dismissed against him.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the complainant a consumer ?
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get the relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Both parties have led their evidences and the same are kept in the record . They have also filed questionnaire, replies and BNAs which are kept in the record for consideration.
DECISION WITH REASONS
Point no.1 :-
Already heard the submissions of Ld. Lawyers ,appearing for both the parties. Perused the complaint, written versions and also the evidences on record. Considered all these.
It has been contended on behalf of the O.Ps that complainant was holding a Janani Suraksha Yojona Card registered through Äyusmati Scheme of Government of West Bengal, and that no fees/charge was taken from her either during her monthly check-up or during the delivery of baby. So, the case is not maintainable in Law, as goes their submission.
The position of Law has been made clear by the Hon’ble Apex Court of the Country in the case of Indian Medical Association Vs. V.P Santha. It has been laid down therein that there are three types of hospitals/Health Centres/ Nursing Homes. These are as follows:-
- Hospital/Nursing Home/Health Centre rendering services to the patient totally free of cost.
- Hospital/Nursing Home/Health Centre rendering services to some of the patients on payment of fees and to some other patients free of cost.
- Hospitals/Nursing Homes/Health Centre rendering services to the patient entirely on payment basis.
It has been held by the Hon’ble Supreme Court of India in the aforesaid case that a complaint under Consumer Protection Act is maintainable against the hospitals and Nursing Homes/Health Centres mentioned against serial nos. 2 and 3 as above.
Coming to the facts of the instant case, it is found that the Nursing Home i.e O.P-5 is a private Nursing Home and it renders services to the patient entirely on payment basis. It has further transpired in the written version of O.P-2 i.e the Sonologist that the hospital receives charge for USG from the patients. So, this averment of O.P-2 goes to prove that the hospital i.e O.P-1 receives charge /fee from some of the patients ,though not from all the patients. That apart, it transpires from the written version of O.P-3 i.e the R.M.O of the said Hospital that caesarian operation is also conducted in the said hospital having invited the Pediatrician and Anesthetist from outside and that is done only in selected cases of the patients who opt for such kind of operation. So, from this averment of the O.P-3 it stands established that some patients of the hospital are required to pay for the services rendered by the hospital to them, whereas some other patients are rendered treatment free of cost. If this be so, the said hospital (O.P-1)renders itself amenable to the complaint to be lodged under the provisions of C.P Actand it cannot get exemption from the tentacles of that Act. The instant complaint is, therefore, amply maintainable against the hospital and the Nursing Home and also against the doctors of the said hospital and Nursing Home.
Point no.1 is thus answered primarily in favour of the complainant.
Point nos.2 and 3 :-
Allegation of medical negligence is levelled by the complainant against the hospital and Nursing Home and also against the doctors thereof. We know very well that occupational negligence and professional negligence are not synonymous. Medical negligence is professional negligence. Every negligence has three composites – duty, breach and resulting damage. But, the medical negligence stands on a different footing ; it requires something more than those ingredients to determine whether any case involves medical negligence or not. The Bolam’stest is thus universally accepted guideline for the judicial or quasi judicial authority and it goes thus:
A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man ,exercising that particular art”.
Bolam’s ratio was accepted in Eckersley Vs. Binnie and their Lordship observed:
“….. he must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The Law does not require of a professional man that he be a paragon combining the qualities of a polymath – prophet”.
The Law on the subject is made crystal clear in the ruling cited above which is approved by the Hon’ble Apex Court in Jacob Mathew’s case,(2005) 6 SCC 1. A hospital/Nursing Home and/or the doctors thereof enjoy elaborate protection from frivolous complaints of medical negligence. Every wrong of a doctor in the treatment of patient is not a case of medical negligence , although it may happen that the patient has suffered loss or damage to a great extent. What is required by Law is that every doctor or hospital or Nursing Home must maintain the ordinary skill of an ordinary competent man, acting in the field of treatment and diagnosis of the patient . The Law does never require a doctor to be a man of highest quality, highest competence and highest skill , it is sufficient for a doctor to have ordinary skill, ordinary cares and competence which is expected by ordinary man from the professional man.
In the light of such provision of Law, it is to be seen whether the O.Ps have exercised ordinary skill and competence in the matter of treatment, diagnosis and delivery of the complainant.
It has been made clear in the written version filed by the O.P-2 , the Sonologist of O.P-1 that every machine has its limitation. We find no difficulty to accept the truth of this version of the O.P-2. Every machine and every man too has its or his limitation and no one will be able to deny this truth. But at the same time we cannot but concede it that there are also machines of superior quality and man of superior knowledge also. It has been stated by the O.P-2 in his written version that what USG machine of O.P-1 failed to detect could have been detected by the MRI and CT scan. According to him, there is necessity of MRI and CT scan to detect the case of twin baby of any woman. The complainant has attended the hospital and Nursing Home i.e O.P-1 and O.P-5 several times i.e on 21.8.2015, 6.9.2015, 16.10.2015, 16.12.2015 and 28.12.2015. A copy of antenatal record is also produced in the case record by the complainant and this document also reveals such visits of the complainant to the said hospital. USG was advised to the complainant by both the hospital and nursing home. USG was done in both the hospital and Nursing Home ,but all attempts of the complainant have ended in smoke; she had to face the trouble at the time of delivery and this was due to the fact that the USG report was not be properly read or studied by the doctors of those two institutions. According to the doctors of O.P-1, the babies in the womb of the complainant were so close to each other that one was shadowed by another and that the existence of another baby was not detected by USG. The doctors would have advised the complainant to have undergone CT scan or MRI . But such advice has not been given to the complainant by them. Had such advice been given to the complainant, the complainant would not have suffered such trouble in her life during delivery of her baby. Had proper care been taken by the hospital and Nursing Home, or by the Doctors thereof, they would have been able to detect the existence of twin children in the womb of the complainant. Such advice is at least expected from an ordinarily skilled professional. Such advice having not been given by the hospital or the Nursing Home or by the Doctors thereof to the complainant, there arises negligence on their part and it is found that they have rendered treatment so far to the complainant in stereotyped manner, which is not proper discharge of their professional skill ,care and duty.
O.P-3 is the R.M.O of the Municipal Hospital (O.P-1). It is her version that she referred the complainant to a State General Hospital ,when she came to find immediately after the delivery of first child that the case of the complainant needed caesarian operation as it was a complicated one. If the case of the complainant were a complicated one and if it actually needed resolution by caesarian operation, the caesarian operation could have been done in the said hospital . It is not the fact that the said hospital does not have any infrastructure of doing that operation. The hospital owns the infrastructure of caesarian operation ; it conducts such operation having called specialist doctors from outside. It has been stated by the O.P-3 and also by O.P-1 that such operation is conducted in elective cases i.e only when the patients opt for such operation at the time of their monthly check-up and treatment. Such facility of caesarian operation could have been extended to the complainant when the life of the complainant was actually at stake; one baby has been delivered by the complainant and another baby is ready to come out of the womb. At that stage of delivery, the patient i.e the complainant is referred to another hospital. We shudder to imagine how inhuman this reference is. The hospital exists to save the life of the man or woman; it is not a place for business. A woman who has received treatment month by month extending over several months is being referred to another hospital when delivery is half done. The hospital authority could have given an emergency call to those doctors, who come from outside for doing caesarian operation in the hospital, in order to save the complainant from the trouble and inconvenience she was supposed to face on the way of her reference to another hospital. But nothing was done by the hospital or by O.P-2 and 3. O.P-3 ,the doctor , took no step to alleviate the suffering of the complainant; she merely referred the case to a State General Hospital. It is nothing but to pass the batton to anyone else. This is not the proper discharge of ordinary skill of an ordinary professional. Here is the lack of ordinary professional competence on the part of O.P-3 and also the hospital and this constitutes deficiency in service on their part.
It is the case of the treating doctor i.e O.P-4 that existence of hidden foetus cannot be detected and it has been so stated in the medical scripture and authority. Well! Very well! He could have produced such scriptures or authority before the Forum and we would have been satisfied with the truth of the said submission of O.P-4. But no such scriptures or authority has been produced by O.P-4 and in absence of such scriptures or authority we feel compelled to say that the theory of O.P-4 as referred to above has no basis at all. It is self innovative theory of O.P-4 and ,therefore, we are the last person to accept this theory of O.P-4.
O.P-3 simply referred the case to any State General Hospital, when she found after delivery of first child of the complainant, that delivery of second child was a complicated one. She could have taken the opinion of a Medical Board constituted by her. Had such opinion been taken by her before referring the case to any State General Hospital, we would have said that O.P-3 had at least taken some fruitful steps towards the solution of the case of the complainant. But no such opinion of Medical Board was taken by her . This is another aspect of medical negligence on their part.
It has been contended on behalf of the O.P that no conclusion can be drawn on medical negligence unless there is an expert opinion filed before the Forum. On perusal of the record, it is found that record of Sonography has not been produced before the Forum by the O.P Hospital. Had those records been produced before the Forum by the hospital (O.P-1), the Forum could have sent those records to a doctor for obtaining expert opinion of him on who committed the mistake in detection of twin baby – whether the machine or the doctor. But such opportunity has not been given by the hospital authority, as they have not produced the records of sonography before the Forum. Why? Is it for the fear that the cat may come out of the bag?
Be that as it may, we feel to draw an adverse inference to the effect that the expert opinion is not necessary in the facts and circumstances of the instant case.
Upon what has been discussed above, it is found that the O.Ps have committed medical negligence and as such they are also found guilty of deficiency in service in accordance with the provisions of Consumer Protection Act, 1986 . They will have to pay compensation to the complainant for their negligence.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.P nos. 1,3 and 4 with cost of Rs.5000/- and also decreed exparte against O.P nos. 5,6 and 7 also with cost of Rs.5000/-.
The case is dismissed against O.P-2 without cost.
The complainant is entitled to get a sum of Rs.3 lacs as compensation for harassment and mental agony sustained by her, and out of this Rs.3 lacs, Rs.2 lacs will be paid by O.P nos. 1,3 and 4 and Rs.1 lac by the O.P nos. 5,6 and 7 , with all the O.Ps remaining jointly and severally liable for payment of litigation cost and such compensation amount to the complainant.
All the O.Ps except O.P-2 are directed to pay compensation as laid down hereinbefore to the complainant within a month of this order, failing which the compensation amount and the amount of cost as referred to above will bear interest @12% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
