DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , 

AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

             C.C. CASE NO. 75_ OF ___2017

DATE OF FILING :14.6.2017                  DATE OF PASSING JUDGEMENT:  16.1.2019

Present :   President       :     Ananta Kumar Kapri

    Member(s)    :     Subrata Sarker & Jhunu Prasad 

COMPLAINANT :  1. Smt. Paramita Karmakar,wife of late Partha Karmakar, P.O & Vill. Madarat, P.S Baruipur, Pin-743610, South 24-Parganas.

2.    Smt. Uma Karmakar, mother of late Partha Karmakar,  P.O & Vill. Madarat, P.S Baruipur, Pin-743610, South 24-Parganas

3.  Master Rishav Karmakar, son of late Partha Karmakar, P.O & Vill. Madarat, P.S Baruipur, Pin-743610, South 24-Parganas  

-    VERSUS  -

O.P/O.Ps :   1. Samparka Nursing Home, Dakshin Barasat, P.S Jaynagar, Pin-743372, Dist. South 24-Parganas.

  2.     Dr. Mahitosh Mondal , residence at Vill. Chandipur, P.O Moydah, P.S Joynagar, Dist. South 24-Parganas.

3.   Dr. Mahitosh Mondal, of Samparka Nursing Home, Dakshin Barasat, P.S Jaynagar, Pin-743372, Dist. South 24-Parganas.

4.   Dr. Bappaditya Halder of Samparka Nursing Home, Dakshin Barasat, P.S Jaynagar, Pin-743372, Dist. South 24-Parganas.

5.   Dr. Kuntal of Samparka Nursing Home, Dakshin Barasat, P.S Jaynagar, Pin-743372, Dist. South 24-Parganas.

6.   The Superintendent, Diamond Harbour Sub Division Hospital, Diamond Harbour, South 24-Parganas.

7.  Dr. S Pal, of Diamond Harbour Sub Division Hospital, Diamond Harbour, South 24-Parganas.

_____________________________________________________________________

J  U  D  G  E  M  E  N  T

Sri Ananta Kumar  Kapri, President 

                A 42 year old person namely Partha Karmakar died allegedly for inefficient handling of the case during operation by the operating Doctor and this tragic incident has galvanized the complainants who are legal representatives of the deceased, to file the instant case under section 12, C.P Act, 1986, with allegation of medical negligence coupled with deficiency in service . 

              Facts leading to the filing of the instant case may be epitomized as follows.

              The deceased named above was suffering from Gall Stone and, therefore, he was admitted to the Samparka Nursing Home (O.P:-1) on 28.5.2016 at about 8 p.m for surgical removal of Gall Stone. He paid Rs.18000/-to the Nursing Home ,but no bill/cash memo was issued to him by O.P-1. Next day, i.e on 29.5.2016 the operation was conducted upon him at around 2 p.m by O.P nos. 2 , 4 and 5,without doing pre-surgical check up. At about 4 p.m bleeding from liver was not checked and, therefore, the Nursing Home transferred the patient ,dead or alive, to Diamond Harbour Sub Division Hospital. At about 10 p.m O.P-2 issued death certificate in favour of the deceased. O.P nos.2, 4 and 5 are alleged to be unskilled doctors; they are guilty of gross negligence. O.P-2 and his associates are not surgeons ; they have no formal qualification to perform a surgery of Cholelithiasis. No post mortem examination was done by the Nursing Home to ascertain the cause of death. It is O.P-2 who arranged for disposal of dead body with the staff of the Nursing Home taking their relatives into confidence. Alleging unfair trade practice , gross negligence and also deficiency in service on the part of the Nursing Home and its doctors, the complainants have filed the instant case ,praying for compensation of Rs.19,50,000/- and Rs.25000/- as litigation cost . Hence, the case. 

             Written version is filed by the O.P nos. 2 and 3 ,who happens to be the same person. He is the owner of the Nursing Home /O.P-1. It is contended by him that all primary check up was done before the operation ; the deceased did not pay any fee to the Nursing Home. The abdomen of the deceased was closed after Haemostasis and O.P-4 i.e the operating surgeon advised to transfer the patient to any hospital, where blood bank was available. Accordingly, the patient was transferred to Diamond Harbour Sub Division Hospital. It is further stated by the O.P-2 that he advised the patient party to do Post Mortem examination, but they strongly protested against post mortem examination and demanded to issue of death certificate by him for the deceased. Accordingly, he issued the death certificate of the deceased under severe compulsion. Role of O.P-2 was only to assist the surgeon i.e O.P-4 and he assisted the surgeon as and when wanted by him. He does never conduct any unfair trade practice. There is no gross negligence or deficiency in service on his part as alleged by the complainant and, therefore, the case should be dismissed in limini against him. 

             O.P-4 is the Surgeon who conducted operation upon the deceased. He has filed written version to contest herein. It is contended by him inter alia that he attended the patient on 29.5.2016 and also performed surgery with O.P-2 after having checked the heart beat , blood pressure, body temperature in normal condition and also examined the test reports of the patient namely Partha Karmakar.  O.P-5 was the Anesthetist.  On opening the abdomen he found Hartmann’s pouch was adhered to bile duct and duodenum. Gall bladder was removed and during removal of the same profuse bleeding occurred, when it was separated from liver bed. The Cystic duct and cystic artery were ligated en-masse and divided. Gall Bladder specimen was taken out. Bleeding was checked by liver bed suture with no.1 catgut. The patient was shifted to the higher center for immediate blood transfusion, since blood bank was not there in near vicinity. 

              O.P-5 is the Anesthetist  , having requisite qualification. He attended the operation of the patient having called upon by O.P-2. He took utmost care before administering anesthesia on the patient during the operation and also in the post operative phase.

              O.P-7 is Medical Officer of Diamond Harbour Hospital. According to him, the patient was admitted to Diamond Harbour Hospital on 29.5.2016 at about 6.58 p.m in the emergency ward with profuse blood loss after open cholecystectomy and with very “feeble pulse” as noted by Emergency Medical Officer. Patient was admitted in alive condition; he was administered blood and other medication of conservative nature and thereafter he was referred to higher center at 8 p.m for better management and constant monitoring which is not available in the hospital. 

            O.P-6 is the Superintendent of Diamond Harbour Hospital. He has filed written statement, wherein it is contended inter alia by him that the patient was admitted on 29.5.2016 to the Nursing Home and the operating doctors performed open cholecystectomy as is gathered from the referring note of the O.P Nursing Home. The operating doctor could not control on-rushing blood of deceased while undertaking the operation. Thereafter, somehow the O.P-1 transferred the patient to Diamond Harbour Hospital and negligence of the Nursing Home and the operating doctor is apparent. They took casual approach to a critical patient who needed careful medical attention. Necessary examination and pre caution on the previous day of operation were not followed by the Nursing Home. Failure to cope with profuse bleeding and closing abdomen without removal of stone unmistakably suggests the inefficiency and incompetence of the operating doctors of the Nursing Home. The patient was admitted at about 6.58 p.m to the Hospital; proper treatment including blood transfusion was done. Then, he was shifted to CCU at 7.40 p.m. But, condition of the patient started deteriorating more and more and, therefore, he was referred to Calcutta National Medical College and Hospital (CNMCH) at about 8.50 p.m . But, the patient was taken to O.P Nursing Home where he died on the said date at about 10.00 p.m. Death certificate was issued by O.P-2. There is no cause of action arising against him and, therefore, the case should be dismissed in limini against him. 

        Upon the pleadings of the parties following points are formulated for consideration. 

 Are the complainants consumers under C.P Act, 1986?

Are the O.Ps guilty of medical negligence and deficiency in service as alleged by the complainants? 

Are the complainants entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

The evidence on affidavit is filed by the complainant, O.p-2,O.P-4, O.P-5, O.P nos. 6 and 7 separately which are kept in the record. The BNAs filed herein are also kept in the record after consideration. 

 

 

 

 

 

DECISION WITH REASONS

Point no. 1      :- 

                It has been argued on behalf of the O.P-2 that the instant case is not maintainable under C.P Act, 1986, as the complainant has paid no fees to the Nursing Home for the operation of the deceased. If fees are not paid to the Nursing Home, the complainants cannot be regarded as consumers and if the complainants cease to become consumers, their case is not maintainable in accordance with the provisions of C.P Act, as goes the submission on behalf of the O.P-2. 

              Now to see whether the complainants can be regarded as consumers in accordance with the provisions of C.P Act. The Nursing Home is not a charitable one and there is no such averment in the written version of statement filed by the O.P-2.  According to the version of the complainants, they have paid Rs.18000/-to the Nursing Home for the operation of the deceased and that the Nursing Home has not issued any bill or cash memo in their favour. If the Nursing Home does not become a charitable institution, there arises no question of a patient being treated entirely free of cost. It can be well presumed that the Nursing Home received fees from the deceased for his operation. That apart, the Nursing Home authority has filed a copy of admission form of the patient. In the admission form it is mentioned thus, “ Ï agree to pay all the charges of the Nursing Home….” and this admission form  is signed by the deceased himself. It also bears the signature of the O.P-2.Taking into consideration this very admission form and particularly the recital of it, as quoted above, we may unhesitatingly hold that the deceased agreed to pay the charges of the Nursing Home. A “Consumer” as defined under section 2(1)(d) of the C.P Act, 1986 is a person who hires or avails of any services for a consideration which has been paid or promised or partly paid or partly promised. The deceased agreed to pay the charges of the Nursing Home ; he promised to pay it and this promise of the deceased,  be the charges actually paid or not, is good consideration for the service to be rendered by the Nursing Home and with this view of us we do hold that the deceased was a consumer under C.P Act, 1986 and as such , the present complainants/legal representatives of the deceased are also consumers in accordance with the provisions of the aforesaid Act. The instant case is quite maintainable in law. 

              Point no.1 is thus primarily answered in favour of the complainants. 

Point no. 2 & 3      :- 

               Now about the consent of the patients, which is required to be mandatorily taken by the operating doctors before the operation. Again, consent must be a valid consent. If the consent is not valid ,such consent has no value in the eye of Law. Coming to the facts of the instant case, it is found that no consent has been taken by the operating doctors from the patient or the patient party before the operation. A copy of patient’s consent form has been produced before the Forum on behalf of O.P-2.  On perusal of it, it is found that the said consent form is not signed by the patient. It is not also signed even by the wife of the patient i.e Smt. Paramita Karmakar, the complainant no.1. it is seen to have been signed by a person Aniruddha Bose. O.P-2  should have made it clear before the Forum as to who this Aniruddha Bose was. The burden of proof lies upon  him and he is required to prove that he took the consent of the patients before the operation started. There is no evidence furnished on behalf of the operating doctors to prove the relation between Aniruddha Bose and the patient. On the other hand, it transpires in the evidence of the complainants that the wife of the patient was all along present with the deceased when he was taken to the Nursing Home of O.P-2. She was also present when the operation was conducted upon the patient on 29.5.2016. That apart, the patient was quiet conscious, because he himself walked to the Nursing Home from his house. He was not in emergency stage at that time. Nursing Home authority could have taken his signature on the consent form. They could have taken signature of the wife of the deceased on the consent form. But none of them has signed the consent form except one Aniruddha Bose. Regards being had to all these, we feel constrained to say that no consent ,as required by Law, was taken from either the patient or the patient party by the operating doctors i.e O.P nos. 2 and 3 before commencement of the operation of the deceased. 

The operating doctors ,particularly O.P nos. 2 and 4, had defied the direction of Law and without taking consent from the patient they conducted the operation of the patient. This act on their part is nothing but a rash decision tantamounting to medical negligence and deficiency in service on their part as well . 

             Every patient has a right to be informed of the risk involved with the surgery or medication. In the case of Malay Kumar Vs. Sukumar Mukherjee (2009) 9 SCC 221, it has been laid down by the Hon’ble Apex Court that the patient has a right to be informed of the risk and on getting such information a reasonable patient can decide whether or not to undergo the proposed therapy.

             In the instant case, this right of the patient has been curtailed by the operating doctors. They did not explain to the patient the risk involved with the operation. It is their version that they came to know that Gall Bladder, Cystic duct etc. were in so inflamed condition that they adhered to the liver bed and they came to know about this condition only on opening the abdomen. This version of the operating doctor goes to reveal one thing and one thing only that they themselves were not in a position before the operation to explain to the patient or to the patient party about what actually happened in the abdomen of the patient. They did not conduct any pre-surgery tests and without doing such kind of tests they conducted the operation upon the patient. A reasonable man must measure the depth of water before taking a leap into the river for swimming. Operation of a human being is not the slaughter of a poultry bird. But these doctors did the operation without doing complete pre-surgery tests. Complete pre-surgery test is the mandate of Law and that guideline should be observed by each and every doctors. In Nizam’s Institute of Medical Science vs. Prasanth  , (2009) 6 SCC 1, the Hon’ble Apex Court has held that complete investigation prior to actual operation is to be carried out and any departure from this guideline is medical negligence.     In the instant case , no investigation whatsoever has been carried out by O.P nos. 2 and 4 . It is their version that they perused the test reports brought by the patient and produced before them by the patient. It is nothing but a lie that they perused the test report, if any. Had they perused the test report, they would have mentioned the result of such test reports on the treatment sheet of the Nursing Home , but no such result is mentioned therein and absence of such result on the treatment sheets proves that the operating doctors did not consult any test report before the operation conducted on the patient. Law requires not only investigation but complete investigation before commencement of the operation of the patient. That requirement of law has been given a go-bye by the operating doctors i.e O.P nos. 2 and 4 and thus they have caused deficiency in service. They have also committed deficiency in service by curtailing the patient’s right to be informed about the risk. Now, the doctors say that the Gall Bladder ,cystic duct etc were in severe inflamed condition and they got adhered to the lever bed . Had those doctors disclosed this fact to the patient, had they disclosed to the patient that the operation involves fatal complication, the patient could have thought otherwise and he could not have taken the decision to be operated in that Nursing Home. But the patient has not been given any scope to exercise his right as the risk involved in the operation has not been explained to him by the doctors. There also lies negligence of the doctors and as such the deficiency in service is also involved herein with the activities of the doctors. 

              There is also lack of proper care on the part of the operating doctors . They are found to be not so efficient to handle the critical patient. When the patient was referred to Diamond Harbour Hospital, the Superintend of Diamond Harbour Hospital saw the noting of the Nursing Home, which was sent to the said hospital from the said Nursing Home. The said noting reads as follows, “Partha Karmakar (42 years/M). Patient underwent open Cholecystectomy operation. During operation severe bleeding occurs, profuse blood loss occurs, bleeding secured, drain given, abdomen closed”.   Having seen the aforesaid noting of the Nursing Home , the Superintendent of Diamond Harbour Hospital i.e O.P-6 is of the opinion that there is negligence in handling the patient by the O.P-1 Nursing Home and its doctors . In fact, their conduct reflected their casual approach to a critical patient, who needed immediate medical attention. According to his opinion, when necessary examinations and precautions were not followed on the previous day of operation as well as the failure of the operating doctors of the said O.P – 1 to cope with profuse bleeding of the patient and closing the abdomen without gall bladder operation for stone removal unmistakably suggest inefficiency and incompetence of the operating doctors of O.P-1 Nursing Home, vide paragraph (g) page 4 of examination-in-chief of O.P-6. The Superintendent of Diamond Harbour Hospital is an expert man and according to his opinion the operating doctors of the Nursing Home are inefficient and incompetent as they have failed to cope with the profuse bleeding of the patient. It is true that the failure on the part of the operating doctor to contain profuse bleeding of the patient is sure pointer of their inefficiency and incompetence. Acquirement of degree from University or College is one thing and acquirement of knowledge and experience to cope with the emerging situation is another thing. Mere acquirement of academic degree does not get consummated unless seasoned with rule of thumb. Be that as it may, profuse bleeding occurred during operation of the patient by the operating doctors and the operating doctors could not check that bleeding and ,therefore, they transferred the patient to Diamond Harbour Hospital having somehow closed the abdomen of the patient. Moreover, the operating doctors did not make any arrangement for blood. Since  before the operation they should have known that such kind of operation might have required transfusion of blood to the patient. They should have kept blood in store for the purpose of that operation. All these precautions have not been taken by the operating doctors and their culpable negligence brought about the death of the patient which has been shown by O.P-2 due to haemorrhagic shock. Regards being had to all these, we feel no hesitation to say that the operating doctors i.e O.P-2 and 4 are most careless, incompetent, inefficient of the operation conducted upon the patient. Not only these, the Nursing Home does not also have the required infrastructure for conduct of such kind of operation , as such kind of operation always involves the necessity of blood. The Nursing Home should not have entertained such kind of operation in it. The death certificate has been issued by the Nursing Home authority and the cause of death as has been shown therein is Cardiac arrest due to haemorrhagic shock. It is the case of the operating doctors that profuse bleeding took place at the time of removal of gall bladder from liver bed and they could not contain the said bleeding. This bleeding is the cause of cardiac arrest. The operating doctors i.e O.P nos. 2 and 4 are ,therefore, wholly responsible for the death of the patient. Their casual and unrealistic approach and their incompetence to handle the situation have paved the way for the death of the patient. As the patient died for medical negligence, the complainants are entitled to get compensation from the operating doctors and the Nursing Home i.e O.P nos.1,2 ,3 and 4.           

                  Now about the compensation to which the complainants are entitled . The deceased was 42 year old . No monthly income of him has been divulged before us by the complainants. Inspite of this, we find it reasonable to fix as monthly income of the deceased as Rs.6000/-. The annual income is ,therefore, fixed at Rs.72000/- per annum. 1/3rd of this income is deducted in consideration of the expenses which the deceased would have incurred towards maintaining himself ,had he been alive. A multiplier of 15 is applied thereafter, considering the age of the deceased. So, the compensation amount stands at Rs.7,20,000/- ( 48000/- x  15). To this compensation amount are added Rs.5000/- as loss of consortium by complainant no.1 and Rs.2500/-as loss of estate by the complainants and Rs.2,00,000/- as compensation for mental pain and agony suffered by the complainants. So, the total amount of compensation is calculated to be Rs.9,27,500/- to which the complainants are entitled to get, having adopted the spirit of calculation  of compensation provided in 2nd schedule to M.V Act. 

             To sum up, no consent, far less valid consent of either the patient or the patient party, was ever taken by the operating doctors prior to the conduct of operation upon the deceased. Even, they acted so rashly that the patient was not given his right to be informed. He was not given any scope to form his opinion whether to be operated in that Nursing Home or any where else. No investigation, not to speak of any complete investigation, was ever done by the operating doctors in relation to the deceased patient before embarking on his operation. Now, it appears to us from in-ept handling of the case by the operating doctors that the said doctors have not acted like doctors, but like tinkers and,therefore, we do hold that the operating doctors and the Nursing Home are guilty of medical negligence and deficiency in service as well. 

              There is no cause of action proved against O.P nos. 5,6 and 7 and, therefore, the case deserves to be dismissed against them.

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 to 4  with cost of Rs.10,000/- and dismissed on contest  against the other O.Ps without costs. 

 The O.P nos.1, 2 and 4, who shall remain jointly and severally liable to the complainants,  are directed to pay a sum of Rs.9,27,500/- to the complainants as compensation for their medical negligence within a month of this order, failing which, the compensation amount will bear interest @8% p.a till full realization thereof. 

 

 

 

 

Let a free copy of this order be given to the parties concerned at once. 

 

 

                     President

We / I    agree.

                          Member Member

 

 Dictated and corrected by me 

 

                                  President