DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __218_ _ OF ___2015
DATE OF FILING :_7.5.2015 DATE OF PASSING JUDGEMENT:10.1.2019
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : 1. Sri Suvankar Acharya, son of Sri Badal Acharya
2. Smt. Sukla Acharya, wife of Sri Subhankar Acharya
Both of 16/4, Mahatma Gandhi Road, P.S Haridevpur, Kolkata- 82.
O.P/O.Ps : 1. M.R Bangur Hospital, of 241, Deshpran Sasmal Road, Tollygunge, P.S jadavpur, Kolkata – 33.
2. Dr. T.K Maity, Medical Officer, M.R Bangur Hospital, 241, Deshpran Sasmal Road, Tollygunge, P.S jadavpur, Kolkata – 33.
3. Ashoke Laboratory Clinical Testing Centre Pvt. Ltd. under the Control & Management of M.R Bangur Hospital, Satellite Centre, 241, Deshpran Sasmal Road, Tollygunge, P.S Jadavpur, Kolkata – 33.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
A 7 year old girl, namely Diya Acharya succumbed to death in the M.R Bangur Hospital (O.P-1) allegedly for medical negligence caused by the hospital authority and the attending doctor and, therefore, the complainants i.e the parents of the deceased girl have come up before the District Forum with the filing of the instant case
under section 12 of the C.P Act, 1986 .
The facts leading to the filing of the instant case may be set forth as follows.
The aforesaid girl had been suffering from light fever associated with vomiting and abdominal pain since 3-4 days before her admission to the hospital i.e O.P-1 on 19.10.2014. Around the evening, she was taken to the emergency department of the hospital by her parents. There, the O.P-2 i.e Dr. T.K Maity examined her and diagnosed the case to be one of acute Gastritis . He prescribed medicines and advised her admission to the hospital. But , the complainants did not admit the child to the hospital ; they took away her to their house as the abdominal pain and vomiting of the child abated to a large extent. In the mid-night, same complications again arose and ,therefore, the patient was again taken to the hospital by the parents at about 2.30 a.m on 20.10.2014. She was admitted to Ward no.13 of the hospital and treatment was also done by O.P-2. At about 5 P.M., Pain aggravated with frequent vomiting , but the O.P-2 did not attend the patient; no trace of him was found anywhere within the precincts of the hospital. The HMO of the hospital attended the patient. B.P of the patient fell down miserably and it was not recordable. At about 5.30 p.m certain doctor came and advised some blood test. O.P-3 which is a Diagnostic Centre under PPP model within the campus of the hospital took the blood of the patient at about 5.45 p.m and payment was also made by the complainant to him. At 9.45 p.m ,the patient was declared clinically dead. O.P-3, therefore, returned the money to the complainants. Death Certificate was issued and the cause of death as shown there is Cardiac Respiratory arrest and severe shock. Now, alleging gross negligence on the part of the O.Ps, the complainants have filed the instant case, praying for passing an order directing the O.Ps to pay a sum of Rs.10 lac as compensation for medical negligence and also for Rs.5 lac for mental pain and agony suffered by them. Hence, this case.
O.P-1 is the hospital authority and it has been contesting the case by filing written statement ,wherein it is contended inter alia that the complainants came to the hospital with their daughter “Diya Acharya” aged about 7 years in late evening hours on 19.10.2014 as the said daughter had been suffering from fever, vomiting and pain in the abdomen for 3-4 days. The attending doctor advised admission of the patient into the hospital , but the mother of the patient did not admit her daughter into the hospital. She took away her daughter to her house on getting medication as prescribed. The girl patient was again brought to the hospital on that very night on 20.10.2014 at about 2.40 a.m with similar severe complaints. She was admitted into the hospital and thereafter O.P-2 attended the patient and advised USG of whole abdomen and X-ray in erect posture . Around 2 p.m when the trouble of the patient subsided a bit, X-ray and USG requisition forms were sent to the Radiology department of the hospital. But, the door of Radiology department was closed and X-ray machine was out of order. The patient party was asked to get X-ray and USG done from outside, but they couldn’t follow the instructions of the hospital. At about 4.30 p.m the patient suddenly had gone into shock inspite of having adequate IV fluid. At around 5.30 p.m some blood tests such as TC, DC, HB, ESR , plate late, Dengu, IGM Antibody etc. were advised and accordingly O.P-3 was informed. The collector of O.P-3 came around 6.30-7.00 p.m ; he could not draw blood and left the ward of the patient having told the mother of the patient that another man would come very soon. Thus, the collector left the hospital and nothing was reported to the Sister on duty or HMO on duty. Nobody came to collect the blood. Patient was complaining of recurrent vomiting and colic abdomen. By this time, Dr. T.K. Maity, O.P-2 left the hospital. He fell ill in his house. He requested Dr. Sabyasachi Roy over phone at about 5 p.m to see the said patient at his best and also to perform his evening round. Dr. Mandira Pal, the on duty HMO and Dr. S.S Roy went to the patient around 6.30 p.m and rendered treatment to their best with available resources of the hospital. Patient was not transferred to any other higher center due to Moribund condition of her. At about 9.45 p.m the patient succumbed to death inspite of all sincere efforts of the hospital. There is no deficiency in service on the part of the O.P-1 and, therefore, the case should be dismissed in limini with cost.
The O.P-2 i.e the attending Doctor has also filed written statement to contest herein. Barring some technical objections raised in the written statement, it is contended inter alia that the O.P-2 attended the patient at about 8.30 p.m on 19.10.2014 (Sunday), examined her and advised her admission into the hospital. But the mother of the said girl took back her home with prescription. He was on call duty 24 hours from 7 a.m on 19.10.2014 to 7 a.m on 20.10.2014. Next day , Dr. Mandira pal was on call duty from 7 a.m on 20.10.2014 to 7 a.m on 21.10.2014. Diya was admitted late night on Sunday i.e on 20.10.2014 with complaint of vomiting and colicky pain in the abdomen. Patient was administered saline. During his morning visit, the O.P-2 found her conscious, not dehydrated, not febrile and interacted to him and her mother. She was feeling intermittent pain in the abdomen and vomiting. The patient was advised to continue previous treatment with addition and alteration. His provisional diagnosis was Acute Gastritis and he advised a straight X-ray of abdomen and ultrasonography of whole abdomen to be done. In late afternoon, he left the hospital for home and the patient was stable that time. Going back home, the O.P fell ill seriously and he requested Dr. Sabyasachi Roy over phone to see the said patient with utmost care and also to perform evening duty of him. It is further stated by the O.P-2 that he met the patient party in the meeting room in the morning on 20.10.2014, but no one of Diya Acharya was found present there. There is no deficiency in service on his part, he took the care to his best in so far as the treatment of the patient was concerned and, therefore, the case should be dismissed in limini with cost.
O.P-3 is the Diagnostic Center under PPP model. It has also filed written statement ,wherein it is mainly contended that as soon as the requisition for blood test was received by him from the hospital authority, its man went to the patient to collect blood , but no sooner had he reached to the patient than the patient died. Money was ,therefore, refunded to the complainants. There is no laches on his part in collecting the blood sample. It is further stated by him that he collected no blood sample at 5.45 p.m as alleged by the complainant . There is no deficiency in service whatsoever on his part.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable against the Government Hospital?
- Are the O.Ps guilty of deficiency in service as alleged by the complainant ?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed on behalf of the complainant. The written statement filed by the O.P nos. 1 and 2 is treated as its evidence vide their petition dated 14.9.2016. Questionnaires, replies and BNA filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 :
The question which arises for consideration now is that whether the case is maintainable against the Government Hospital i.e O.p-1. It has been laid down in the famous case of Indian medical Association Vs. V.P Santha by the Hon’ble Apex Court that a case is not maintainable against a Government Hospital or a Doctor if the service is rendered by them free of cost. It has also been laid down therein that a token amount of money taken as registration fee by them will not be considered as payment for service. In the light of the above observation of the Hon’ble Apex Court, it is to be seen whether this case is at all maintainable in Law against O.P-1.
Now to see whether service is rendered by O.P-1 to the patient on payment basis or not. To find an answer to this question, we must go to a copy of an agreement produced by the O.P-3 on record. O.P-3 is a Diagnostic Centre (PPP Model), functioning within the precincts of O.P-1 hospital by virtue of an agreement concluded by and between the hospital authority and O.P-3. Let us see now what is stated there in that agreement. O.P-3 is to pay Rs. 1, 50,000/- in each quarter as concession fee to Rogi Kalyan Samity (RKM) of the hospital vide Article 3.1 of the agreement. The proceeds of concession fee will be utilized for reimbursement of the cost of free service provided by the O.P-3 to the patients on the recommendation of the hospital authority vide Article 5(IV) of the agreement. The hospital authority will provide physical possession of the hospital site to O.P-3 for implementation of project ( Article 2.4) and the Superintendent of the Hospital i.e O.P-1 shall be monitoring the Diagnostic Center and services provided therein (Article 6.2(K)). A price notification applicable for patients referred from the M.R Bangur Hospital and other hospitals is also appended to the agreement under Schedule 1. From this Notification, it is clear that O.P-3 is entitled to charge different amount of fees from the patients for different kind of tests. This Diagnostic Center i.e O.P-3 works on the site of the hospital within the vicinity of the hospital. Patients are referred to this Center by the Superintendent of O.P-1 hospital and the patients are required to pay the fees to O.P:-3 for their respective tests.
In the instant case, the complainants paid requisite fees to O.P-3, although the said fee was returned to them ,when O.P-3 failed to collect the blood sample. From all these facts one thing is given to understand that the service of O.P-3 is also a part and parcel of the service of O.p-1 hospital and such service is rendered to the public on payment basis. Although, it is learnt from that very agreement that some patients are entitled to free services , if so recommended by the Superintendent of M.R Bangur Hospital i.e O.p-1. Regards being had to all these facts, materials and circumstances, we feel constrained to hold that the service of O.P-1 hospital is not rendered wholly free of cost to the patients and that such service is also rendered to the patients on payment basis. This being so, the O.P-1 hospital certainly comes within the ambit of Consumer Protection Act and as such the instant case appears to be quite maintainable in Law against the O.P-1 hospital and its doctors.
Point no.1 is thus primarily answered in favour of the complainant. Point no.2 & 3 :
It has been raised on behalf of the complainants that their 7 year old daughter namely Diya Acharya has fallen a victim to gross negligence of the hospital authority and the attendant doctor i.e O.P-2.
In the face of such allegation against the O.P, we should see what standard of care should be maintained by the hospital and the doctor. This has been well settled by the Hon’ble Apex court in many cases and the ratio laid down by the Hon’ble Apex court in Jacob Mathews case (2005) 6 SCC (1) ,relying upon Golam Vs. Friern Hospital Management Committee runs as follows : “…………where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham Omnibus ,because he has not got the special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest special skill; it is well established law that it is sufficient if he exercise the ordinary skill of an ordinary competent man exercising that particular skill”.
So, it is found that the standard of care required from a professional man or hospital is not too high, nor too low. We want only the standard of ordinary skilled man exercising and professing to have that skill. Any deviation from this standard will be treated as negligence on the part of the doctor or the hospital. Whenever a patient is brought to the hospital and surrendered to the care of the hospital by the guardians of the patient, they expect that a minimum standard of care must be taken by the hospital and the doctor and if this minimum standard of care is not taken by the hospital or the doctor, it is , we will say and say only, nothing but gross negligence on the part of the hospital or the doctor.
In the light of this legal dispensation we proceed to see whether there has been any such negligence caused by the O.Ps in so far as the treatment of Diya Acharya was concerned. It is undisputed fact that the child patient was brought to the hospital by her parents on 19.10.2014 and that O.P-2 who is a Pediatrician of O.P-1 hospital examined her and also prescribed medicines for her. He advised her admission into the hospital; but the mother refused such admission and took back her home as the troubles of the patient subsided a little. The patient was suffering from fever, associated with vomiting and abdominal pain since 3-4 days before her coming to the hospital. On that very night, her pain aggravated with complications of all other symptoms and, therefore, the complainants were compelled to bring her to the hospital again and the patient was admitted to the hospital at about 2.45 a.m on 20.10.2014. All these have been admitted by both the O.P nos. 1 and 2 in the written statement filed by them and this is also noted on the treatment sheet dated 20.10.2014on its reverse page. At about 3.05 a.m Dr. T.K Maity, O.P-2 examined her. That time, the condition of the patient was very critical. She was suffering from fever with vomiting profusely. Pain around umbilicus was also present ; she was vomiting yellowish coloured fluid and was also suffering from frequent micturition. All these are revealed from the treatment sheet dated 20.10.2014 ,produced by the hospital authority i.e O.P-1. That time, O.P-2 advised to get USG of whole abdomen and straight X-ray abdomen (erect posture). This advice was given by the O.P-2 at around 3.05 a.m ,but no USG nor any X-ray was done by the hospital staff till 2 p.m and the fact remains that the hospital authority has not acted as per the instructions of O.P-2. A bizarre explanation has been furnished by the hospital authority for not doing X-ray and USG of the patient as per instructions of the O.P-2. The explanations are - i) O.P-2 instructed to do all these tests only when the troublesome complaints of the patient subsides ,2 ) The X-ray room was closed at 2 p.m, 3) the patient party did not get the tests done from outside inspite of instructions by the hospital authority to do that.
As regards the first explanation as referred to above, we do say that there is no such noting of O.P-2 on the record of daily treatment sheet produced by the hospital authority. A doctor cannot be reasonably expected to give such an instruction, because an on-going pain and trouble of the patient may result in the end of his life before doing the clinical tests. So, it appears that the said explanation is baseless and nothing but an absurd pretence.
The second explanation of O.P-1 is that the X-ray room was closed at 2 p.m as the X-ray machine was out of order. The closure of X-ray room at the pick hours of working day points out nothing but inefficiency and mal administration of the hospital authority. That apart, no document has been placed on record by the hospital authority to prove that X-ray went out of order and that a step was taken to restore it to its normal function. In absence of such document, we find it very difficult to accept the explanation of the hospital authority. This explanation of the hospital authority also appears to be given for the sake of protecting their own skin.
The third explanation is that the patient party was asked to have all those tests done from outside the hospital. The complainants have stated in their evidence that no such instruction was given to them by the hospital authority. Moreover, had such instruction been given to the patient party, it would have certainly been mentioned on the daily treatment papers. But there is no reflection to the effect that any such instruction was ever given to the patient party. In this regard, we cannot but say one thing again that the patient is relegated to the care of the hospital whenever he or she is admitted in the hospital. So, the entire responsibility is cast upon the hospital authority and the hospital authority will have to take full care so that the patient does never suffer from lack of proper treatment.
In the instant case, the proper treatment has not been done to the patient by the hospital authority and now, what is done by the hospital authority is that they have risen up to give explanation to protect their own skin. Be that as it may, the fact remains that the clinical tests which were advised by the O.P-2 were not done by the hospital authority and this inability on the part of the hospital authority goes to prove the gross negligence, carelessness and callousness of the hospital authority i.e O.P-1, which contributed to the death of an innocent child in her budding stage.
Upon scrutiny of the treatment papers as produced by the O.P-1 hospital, it is found that the patient was left unattended by any pediatrician for a considerable period i.e between 3.05 a .m – 5 p.m. it is stated in the evidence of the complainant that none of the pediatricians visited the patient except the HMO on duty. Is it true? If this be so, it is a sheer negligence on the part of the hospital authority. We know very well that the child patient is fighting with death; her condition is very very critical. Still, she is not attended by any specialist doctor from 3.05 a.m to 5 p.m i.e for about 14 hours. This evidence of the complainant finds its corroboration from the treatment papers as produced by the hospital authority. The treatment sheets of the hospital also reveal that no pediatrician ever visited the patient during interregnum period till 5 p.m except on one occasion of which no time is mentioned. This conduct of the hospital authority also reveals lack of proper care by them far less the minimum care in so far as the treatment of the patient is concerned.
It appears that the doctors of O.P-1 hospital have no hearts ,nor any compassion also. The patient was slowly approaching the chasm of death bit by bit and a man of ordinary prudence can realize it ,having seen the symptoms of the patient. Once , the patient almost died at 5 p.m ; her B.P was un-recorded, pulse not palpated at about 5.30 p.m leg cramp started and abdomen distended. It was at that time, a pediatrician came and advised to do some blood tests such as TC, DC, HB etc. when journey to death had just been started by the patient. But those tests were not also done, because the patient departed to the next World before the blood sample was taken. All these symptoms of the patients and the concomitant time all are noted in the treatment sheet produced by the hospital and all these along with the evidence of the complainant go a long way to demonstrate that the young girl had to pass away for nothing but for one thing that proper medical care was not given to her by the hospital and doctor i.e O.P-1 and O.P-2. Had proper care been taken by them during her treatment, the life of the said girl could have been saved and she could have been able to survive on the earth to see the light of the day. Delay in treatment has furnished the death bed of the innocent child.
Now ,upon scrutiny of the materials on record it is found that the O.P nos. 1 and 2 have indulged in a game of suppression of material facts in order to protect themselves. O.P-1 says in his written statement that O.P-2 left the hospital at 2 p.m, whereas O.P-2 has stated in the written statement filed by him that he left hospital in late afternoon on 20.10.2014 when the patient was relatively stable and watching T.V. In the late afternoon, the patient was never stable. Her BP was unrecordable and pulse not palpable, as goes the entry at 5.00 p.m in the treatment sheets of hospital on 20.10.2014. O.P-2 could have made entry on the treatment sheet that the condition of the patient was stable and that she was watching T.V , while living the hospital. But no such noting is found on the treatment sheets. On the other hand, it is the evidence of the complainants that O.P-2 was not found in the hospital on 20.10.2014 after morning check-up of the patient through the day despite their vigorous search. O.P-1 i.e the hospital authority is also now found ready to give protection to O.P-2 and, therefore, O.P-1 is trying to convince the Forum that O.P-2 was present in the hospital till 2 p.m on 20.10.2014. we ask a simple question – if O.P-2 was present in the hospital till 2 p.m, why did he not make any entry on the treatment sheets of the girl patient. Absence of such noting on the treatment papers proves ip-so-facto that O.P-2 was not present in the hospital and that O.P-1 is giving an untrue statement before the Forum to mislead it.
It has come to our notice that the system of Biometric attendance has been introduced in O.P-1 hospital and it is ascertained from the written statement of O.P-2, vide para XIV of his written statement. It is stated therein by the O.P-2 that he signed the main attendance Registrar and also gave his finger print ( Biometric attendance) when he entered the hospital for duty. If this be so, he also signed the attendance registrar and also gave his finger print ,when he left the hospital after his duty was over. According to the version of the O.P-2, as submitted in his written statement , his duty hours was from 7 a.m on 19.10.2014 to 7 a.m on 20.10.2014. But the O.P-1 says that he was present in the hospital up to 2 p.m on 20.10.2014. The burden of proof lies upon the O.P nos. 1 and 2 , when the complainants have prima facie been able to discharge their initial burden to the effect that O.P-2 was not available in the campus of hospital on 20.10.2014 even after vigorous search of them. The treatment papers which have been produced by the hospital authority also do not contain any kind of noting by O.P-2 and ,therefore, this also goes to prove that the said doctor was not present in the hospital at that time. But, O.P-1 and O.P-2 give out that O.P-2 was present in the hospital up to 2 p.m. So, the burden of proof lies upon the O.Ps and it has been so held by the Hon’ble Apex court in the case of Nizam’s Institute of Medical Sciences Vs. Prasanth, (2009) 6 SCC 1 and also in the case of Savita Vs. National Heart Institute, (2004) 8 SCC 56, wherein it is laid down that when the initial burden is discharged by the complainant, the O.Ps (hospital/doctor) will have to satisfy the court that there was no lack of care or diligence. To discharge the burden of proof, the O.Ps could have produced the attendance registrar before the Forum or they could have produced biometric evidence to prove to the effect that O.P-2 left the hospital actually at 2 p.m. These are vital and best evidence to prove the attendance of O.P-2 and in absence of these evidence we cannot but say that O.P-2 was never present in the hospital on 20.10.2014 beyond his duty hours and an attempt has been made by those O.Ps to suppress the actual reality. The actual reality is that O.P-2 left the hospital after his duty hour was over and now, both the O.Ps have been trying fervently to catch at a straw.
A fine subterfuge has been adopted by the O.P-2. According to him, he fell ill in his house after his return to the house from the hospital. According to him, he requested another doctor to look after the aforesaid patient i.e Diya Acharya to his best and also to perform his evening round in the hospital. It is in the version of the O.P-2 that he got very sick because of fever , frequent vomiting and frequent purging for which he called a local physician to see and treat him. He could have produced the evidence of that local physician to prove that he actually fell ill that time . He could have produced the cash memo to prove that he purchased medicines from any shop. But no such cash memo is filed. In absence of all these, we are the last person to accept the version that the said doctor fell ill while going back to his house from the hospital on that day. He even did not meet the parents of the patient in the meeting room of the hospital and left the hospital in the morning. All these conducts of O.P-2 are instances of carelessness, unfairness and negligence.
Upon what have been discussed above and in the facts and circumstances of the case as pointed out above, we are of the opinion that the little girl of the complainants fell a victim to gross negligence and carelessness of O.P-1 and O.P:-2 and this negligence and carelessness contributed to her death.
There is no negligence caused on the part of the O.P-3 . The duty of O.P-3 was to collect blood sample from the patient ,but he was prevented from performing this duty, because the patient already died before he arrived at the bed side of the patient for collection of blood.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P no.1 and O.P-2 with a cost of Rs.10,000/- and dismissed on contest against O.P-3 without cost.
The O.P nos. 1 and 2, who shall remain jointly and severally liable for payment to the complainants, are directed to pay a sum of Rs.6 lacs ( Six Lacs) as compensation to the complainants for their medical negligence and also to pay a sum of Rs.1 lac ( One lac)to the complainants as compensation for mental pain, agony caused to them, within a month of this order, failing which, both the compensation amounts and cost amount as referred to above 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
I / We agree
Member
Dictated and corrected by me
President
