DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 27 OF 2018
DATE OF FILING: 27.2.2018 DATE OF JUDGEMENT: 22.01.2020
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad & Jagadish Ch. Barman
COMPLAINANT : 1. Nirman Mondal,
2. Adrija Mondal, Being represented by their guardian / near relative (cousin) Alok Mondal, S/o – Bhupendra Nath Mondal, Residing at Dighirpar, Paschim Dighirpar, Canning, South 24 Parganas, Pin – 743329.
- VERSUS -
O.P/O.Ps : 1. Green View Nursing Home, p - 9, Nabapally, Canning Town (Hospital More), Pin – 743329, Represented by its proprietor Subodh Debnath, S/o – Ashwini Debnath.
2. Dr. Ashish Halder, S/o – Sanjay Halder, of Bhabanipur, Subhasgram, South 24 Parganas, Pin – 700 147.
3. Dr. Arnab Sarkar (Anesthesia specialist) working for gains, at Green View Nursing Home, P-9, Nabapally, Canning Town (Hospital More), Pin – 743329.
4. Canning Sub-Division Hospital, Represented by its Superintend, Canning, South 24 Parganas.
__________________________________________________________________
JUDGMENT
Sri Ananta Kumar Kapri, President
Malabika Mondal, a 38 - year- old woman is no more today. She died on 15.08.2017 having allegedly fallen a prey to medical negligence on the part of O.P. nos. 1, 2 and 3 i.e. the nursing home and the operating doctors, leaving behind her son and daughters.
Facts leading to the filing of the instant case may be epitomized as follows.
On 10.08.2017 Malabika Mondal as named above felt acute pain in her abdomen and she herself went to O.P. no. 1 nursing home for treatment. There she was overwhelmed by O.P. no. 1 that their doctor i.e. O.P. no. 2 was very efficient and that she would have to undergo an operation then and then. Accordingly, O.P. nos. 2 and 3 were called in and they conducted gallbladder operation of the deceased in the nursing home i.e. O.P. no. 1. But, the operation was not successful; the patient collapsed on the operation table all on a sudden and therefore the doctors and the nursing home hurriedly referred the patient to Canning Sub-divisional Hospital, when the condition of the patient was resuscitated to some extent. On 15.08.2017, the patient succumbed to her injuries in Canning Hospital. It is further alleged in the petition of complaint that the O.P. no. 1 nursing home has been conducting unfair trade practice. It does not have any license, nor any infrastructure for performing operation of the patient. Alleging medical negligence on the part of O.P. nos. 1, 2 and 3, the complainants have filed the instant case praying for passing a necessary order directing the said O.Ps. to pay a compensation for Rs. 17,00,000/- for medical negligence and unfair trade practice of them.
O.P. nos. 1, 2 and 3 have been contesting the case by filing W/V. It is submitted by them that the case was one of cholecystectomy. The patient was operated on 10.08.2017 at 5 p.m. Prior to the operation the investigation report was consulted by O.P. no. 2 and the result of the report was found within normal limits. O.P. no. 3 was anesthetist and spinal anesthetist was given to the patient by O.P. no. 3 after having taken all precautions. Gallbladder was removed from the liver bed. Suddenly, after removal of gallbladder, the patient was found not in response and pulses could not be palpable. Patient developed cardiac arrest then and then. O.P. no. 1 started Cardiac massage and O.P. no. 3 also applied some medicines upon the patient through IV fluid. Patient became able to recognize pulses and blood pressure was well. Then operation was completed; abdomen was closed having observed all standard medical protocol. All these complications were reported to the patient party and the patient was referred to Canning Sub-divisional Hospital for better management.
It is submitted that the O.Ps. gave the best services as per standard medical protocol and what happened to the patient was complication beyond the control, even after applying due diligence and services that of a medical practitioner. There is no negligence on the part of the O.Ps. and there arises no question of unfair trade practice. O.P. nos. 2 and 3 had no knowledge about absence of license of O.P. no. 1. The case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of medical negligence as alleged by the complainant ?
- Are the complainants entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed on behalf of the complainant. The O.P nos. 1 and 2 have also filed evidence on affidavit. The W.V filed by O.P-3 is treated as his evidence by his petition dated 30.7.2019. Questionnaires, replies and BNAs filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Ld. Lawyer appearing for the complainants has contended that the O.P-1 Nursing Home does not have any licence and without having licence it is running the clinical establishment. The operation of the deceased has been conducted in that Nursing Home. All these are in clear violation of the West Bengal Establishment Act and this is medical negligence as well as unfair trade practice on the part of the O.P-1. It is further argued by him that the O.P-1 Nursing Home did not maintain any record for the treatment of the deceased. Maintenance of record by a Nursing Home while proceeding to conduct treatment of a patient is mandatory. But, O.P-1 has not maintained any such record and as such it has not been able to produce any medical records before the Forum ,whenever it has been so asked for by the complainant. All these acts on the part of the O.P-1 , as goes his submission, are clear instances of medical negligence and unfair trade practice.
Ld. Lawyer appearing for the O.P-1 has contended that the Nursing Home had the licence and the said licence expired. After expiry of the said licence O.P-1 applied for renewal of the licence of the Nursing Home having observed due formalities . But the licence is yet to be renewed in favour of O.P-1. So, according to him, the Nursing Home has committed no wrong on its part and the Nursing Home can never be held to be guilty of deficiency in service or medical negligence.
During continuation of the proceedings of the instant case, this Forum directed the Nursing Home i.e O.P-1 to produce all medical papers relating to the operation of the deceased vide order no.9 dated 1.8.2018. But, the Nursing Home has not been able to produce any paper except one page report. That report is nothing but an anesthesia note. Except this anesthesia note, the Nursing Home has not been able to produce any paper. It is not disputed that the deceased was operated in O.P-1 Nursing Home by O.P-2 and O.p-3 administered anesthesia to the patient. So in the circumstances, it is mandatory on the part of the O.p-1 to maintain record of the treatment. But, O.P-1 does not maintain any such record. O.P-1 is not a Bucher’s house. It must maintain medical records of treatment of the patient. Had it maintained the records of medical papers, it would have been able to produce all those papers before the Forum. But, it has not been able to produce all those papers before the Forum and inability on the part of the O.P-1 to produce all those papers before the Forum goes a long way to prove nothing but the fact that the O.P-1 did not maintain any medical records for treatment/operation of the deceased. Such an act on the part of the O.P-1 is nothing but negligent acts and such an act is not deserved from a Nursing Home. It has clearly violated the provisions of 3.5(d) of West Bengal Clinical Establishment Act 1950, which makes it mandatory on the part of each and every Nursing Home to maintain record of the treatment of the patient and to send those records to CMOH of the District. Legal provisions have been thrown into wind by the O.P-1 and regards being had to this aspect ,we are of the opinion that the O.P-1 has caused deficiency in service and such deficiency in service may also be termed as unfair trade practice on the part of the O.P-1.
Then comes the question of the licence of the Nursing Home. According to the version of the O.P-1, it had the licence for running the Nursing Home. According to its version, it runs a 10 bed Nursing Home and it got valid licence. It had the valid licence; but on the relevant date i.e the date on which the operation was conducted upon the deceased ,the Nursing Home had no licence. Its licence already expired and thereafter the said licence was not renewed by the Nursing Home. A copy of renewal licence is attached to Written Version filed by the O.P-1. On perusal of this renewal licence, it is found that the licence number of O.P-1 is 0469/515N dated 11.11.2005. It is clearly written therein that the last date of application for renewal is 10.10.2016 and the validity of that licence was up to 10.11.2016. So, with the expiry of the date 10.11.2016, the licence of O.p-1 lost all its validity and after expiry of that date, the Nursing Home of O.p-1 had no licence. The operation was conducted upon the deceased on 10.8.2017. The complainants have filed a reply obtained under section 6 of RTI Act, 2005 from the office of CMOH , South 24-Parganas. It clearly mentions under serial no.5,thus: “5. During June 2017 to October 2017 Green View Nursing Home has no licence”. Serial No. 7 of the said reply also goes thus, “During the period July 2017 to October 2017 Green View Nursing Home is not in our record as it is outside the licence period”.
So, regards being had to all these documentary evidences, we cannot but say that on the date of operation i.e on 10.8.2017, the Nursing Home i.e O.P-1 did not have any licence for running the Nursing Home. So, to get a patient admitted to the Nursing Home and to make arrangement for operation of the patient in that Nursing Home are nothing but illegal acts on the part of O.P-1 and O.P-1 has done all these illegal acts for the sake of earning money only, having defrauded the members of public. So, we do say again that this is deficiency in service on the part of O.P-1 . It is not only deficiency in service ,but also a kind of unfair trade practice on the part of Nursing Home.
Now about the medical negligence of O.P-2 as alleged by the complainants. It is undisputed fact that the O.P-2 conducted open cholecystectomy upon the deceased on 10.8.2017 in the Nursing Home i.e O.P-1. We have already stated that O.P-1 did not have any licence on the date of operation of the patient. O.P-2 should have enquired whether the Nursing Home possessed any licence on the date of operation. We know very well that it is not the duty of a doctor or surgeon to enquire of the existence of the licence of a Nursing Home. Such contention can be entertained only when the doctor/surgeon is faced with a case of grave emergency. In a case of grave emergency the surgeon need not enquire about the validity of the establishment ,wherein he is required to perform operation; his only duty in that case, is to save the life of the patient. But , in the instant case, the patient is not one of grave emergency. The patient herself walked to the Nursing Home when she experienced abdominal pain and it so transpires in the deposition of the complainants.
Regards being had to this aspect, we may very well conclude that the condition of the patient was not emergent or critical which required O.P-2 i.e the surgeon to conduct operation in the Nursing Home instantly without giving attention to any other matters. If a surgeon goes to a Nursing Home which does not have the licence and conducts operation there , it tantamounts to give instigation to the Nursing Home to conduct unfair trade practice in connivance with the surgeon. In the circumstances, we feel constrained to say, therefore, that O.P-2 has made himself an accomplice to O.P-1 for running illegal trade or unfair trade practice by O.P-1.
That apart, O.P-2 also appears to be very much negligent in so far as the operation of the deceased is concerned. Every doctor/surgeon is mandatorily required to look through pre-operative investigation report of the patient. The O.P-2 did not look into any pre-operative investigation reports. He has not filed any prescription of patient before the Forum. The Nursing Home has also not been able to produce any prescription of the doctor before the Forum. The doctor/surgeon should jot down the result of investigation upon the prescription before the operation is conducted. There is no such papers filed before the Forum so that we can hold that the O.p-2 looked into investigation papers and jotted down the result of investigation on his medical note. In absence of all these papers we feel no difficulty to say that the O.P-2 conducted operation upon the deceased in casual and cavalier manner without making proper diagnosis. He conducted the investigation in hot-haste. The reason is best known to him. Be that as it may, we do say that O.P-2 has acted negligently and carelessly in discharge of his professional duty.
Before the operation was conducted, every surgeon should take consent either of the patient or the patient party. The consent must not be a mere consent; it must be “Informed Consent”. Coming to the facts of the case, it is found that the O.P-2 has not taken “Informed consent” of the patient before proceeding to operation upon the deceased. A copy of general consent form has been filed on record on behalf of the Nursing Home and it is seen therefrom that the consent is taken in a cyclostyled form. In the operation, the gall-bladder of the patient has been removed. O.P-2 should have disclosed fully before the patient that her gall-bladder was required to be removed. He should have disclosed before the patient the consequences that were likely to follow after the removal of the gall-bladder. Having informed all these to the patient, the consent should have been taken from the patient by the O.P-2 and in that case, the consent would have been “Informed consent”. There is no such “informed consent” taken from the patient by the O.P-2 and regards being had to all these facts, we do say that no legal and valid consent has been taken from the patient by the O.P-2 before proceeding to conduct operation upon her. So, this act on the part of the O.P-2 is nothing but a clear instance of medical negligence.
It is the defense case that the patient collapsed on operation table due to sudden cardiac arrest. O.P-2 i.e the operating doctor should have ascertained the condition of the heart of the patient before proceeding to conduct operation upon her. He could have taken ECG report of the patient to know the condition of the heart. But nothing was done by him. No ECG was taken by him. He was called in by the Nursing Home to conduct operation, he came and straightway proceeded to operation theater to conduct the operation upon the patient. Even no discharge summary was also issued by this doctor i.e O.P:-2. All these acts on the part of the O.P-2 clearly establish that the doctor acted carelessly and negligently while conducting operation upon the patient and, therefore, he is found obviously guilty of medical negligence.
Now about the medical negligence of O.P-3, the anesthetist as alleged by the complainant. O.P-3 administered spinal anesthesia in case of the patient. We have already mentioned that open cholecystectomy was done upon the patient. Expert medical report has been obtained and the said medical report is also kept in the record. That apart, a medical literature has also been placed on record, vide running page 34 of the evidence of O.P-2. It is stated in medical literature therein as such, “Sudden cardiac arrest during spinal anesthesia is a rare but catastrophic event”. It is also pointed out in that literature as follows, “Occurrence of such case needs timely reporting and appropriate cardiac pulmonary resuscitative measures”. O.P-3 is an anesthetist . He knows very well that sudden cardiac arrest is likely to occur in case of spinal anesthesia. He also knows very well that timely and appropriate action cannot be taken in that Nursing Home if the moment so demands. He knows very well that the said Nursing Home had no adequate infrastructure to enable him to take timely appropriate action in case of sudden cardiac arrest. Knowing all these very well, he proceeded to administer spinal anesthesia upon the patient. He has no foresight to act, no practical knowledge and for this reason we do say that O.P-3 has also acted carelessly and negligently.
In the expert report, it is pointed out in point no. 8 that general anesthesia is preferred to spinal anesthesia in cholecystectomy vide the expert report. But, O.P-3 has not adopted the generally accepted procedure. He has adopted the procedure which should not have been taken in case of a cholecystectomy operation, even when he knows it very well that there is want of proper infrastructure in the Nursing Home of O.P-1. This act on the part of the O.P-3 is also clear instance of carelessness and medical negligence on his part.
Upon what have been discussed above, it is found that the O.P nos. 1,2 and 3 have been guilty of medical negligence. O.P-1 is also guilty of unfair trade practice. O.P-4 cannot be held guilty of any medical negligence. O.P-4 is the Government Hospital which tried its level best to save the life of the patient. But it could not in the long run. The complainants have been able to prove their case of medical negligence and, therefore, they are deemed entitled to compensation and the compensation is awarded in the following orders.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 1,2 and 3 with a cost of Rs.10,000/- to be paid by them to the complainants.
The case stands dismissed exparte against O.P-4.
The O.P no. 1 i.e the Nursing Home is directed to pay a sum of Rs.5 lac as compensation to the complainants.
The O.P nos. 2 and 3 are directed to pay a sum of Rs.2,50,000/- each as compensation to the complainants.
All these orders are to be carried out by O.P nos. 1,2 and 3 within a month of this order, failing which, all the compensation amounts will bear interest @8% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member Member
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 1,2 and 3 with a cost of Rs.10,000/- to be paid by them to the complainants.
The case stands dismissed exparte against O.P-4.
The O.P no. 1 i.e the Nursing Home is directed to pay a sum of Rs.5 lac as compensation to the complainants.
The O.P nos. 2 and 3 are directed to pay a sum of Rs.2,50,000/- each as compensation to the complainants.
All these orders are to be carried out by O.P nos. 1,2 and 3 within a month of this order, failing which, all the compensation amounts will bear interest @8% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
