INTRODUCTION :-

This complaint is filed by the Complainants u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service and medical negligence against the OPs.

BRIEF FACTS :-

The Complainant-1 is the wife of the deceased, Complainant-2 and 3 are the son and daughter of the deceased namely Late Pradip Kumar Chatterjee. Mr. Pradip Kumar Chatterjee died at the age of about 55 years due to gross medical negligence on the part of the hospital authority-OP-1 and the concerned doctor-OP-2 for which the instant complaint case has arisen.

The brief fact of the case of the Complainants is that the deceased victim namely Late Pradip Kumar Chatterjee met with an accident when he was pushed by a motor cycle and fell down on the ground, sustained injury on his head on 14.03.2010 at the auto rickshaw stand near CIT Building, Beliaghata. He was taken to AMRI Hospital, Salt Lake at about 10:30 P.M. with Head Trauma and immediately he was admitted by the authorities of the OP-1 under the OP-2, though the OP-2 was not present in the hospital at that point of time. One CT Scan of the brain of the victim was done as per telephonic instruction of the OP-2. From the report of the CT Scan it appeared that there was serious injury on the head of the victim, which required immediate operation. The Complainants requested the hospital authorities-OP-1to take immediate steps for operation but the concerned staff and the attendant doctors have stated that the operation would be done by the OP-2 on the next day morning. After repeated attempts the Complainant-1 was able to contact with the OP-2 over telephone and requested him to take immediate steps for operation of the head of the victim, when the OP-2 assured that there would nothing to be worried and operation would be done on the next morning and he further advised the Complainant-1 and her associates to return at home and according to the OP-2 everything would be alright.

On the next day i.e. 15.03.2010 the Complainants were informed that the victim was taken for an emergency brain operation and thereafter informed that after operation he was kept in the CCU of the hospital. Apart from the said two information, no other information about the operation and the present condition of the health of the victim was given to the Complainants. The hospital authorities did not allow the Complainants and their associates to see the victim. The attending doctors including the OP-2 assured the Complainants that the victim would gradually survive and there was nothing to be worried. The victim was out of danger as per the statement of the OP-2. But on 29.03.2010 the Complainants along with their relatives got shock to know that the victim died on 29.03.2010.

The Complainants were asked to pay huge amount by the hospital authorities time to time and the Complainants complied with the said direction by making payment of Rs.2,05,000/-. The Complainants along with their relatives were repeatedly assured by the OPs that there was nothing to be worried and the OPs kept the Complainants and their relatives under the impression that the victim was out of danger with a view to snatch money from the Complainants. From the period from 15.03.2010 till the death of the victim the hospital authorities did not allow the Complainants and their relatives to see the victim and even no information about the treatment of the victim was given to the Complainants or the relatives. In fact the victim died on 15.03.2020 in the morning due to delay in conducting operation, but he was kept like alive by mechanical process with a view to squeeze money from the Complainants. If the operation was done on the head of the victim immediately after admission on 14.03.2010 then the life of the victim would be saved and the cause of the death of the victim was due to delay in conducting operation and the cause of delay in conducting operation was due to non-arrival of OP-2 at the night of 14.03.2010. On 14.03.2010 the OP-2 was repeatedly requested by the Complainants over telephone to come to the hospital to visit the patient along with conducting the surgery, but the OP-2 refused to come on that day only for avoiding inconvenience. As a result of the utter negligence and delay in starting treatment amounted to deficiency in service, the victim had to die and the Complainants have to suffer a grave loss which cannot be compensated by money. But the OPs should be held guilty for gross medical negligence and deficiency in providing proper and prompt medical service for which the OPs should be liable to pay a sum of Rs.10,00,000/- to the Complainants as compensation and the OPs are further liable to refund the paid amount of Rs.2,05,000/-, which they received for charges of treatment of the  patient. The Complainants were dark about the treatment of the victim and after the death of the victim the Complainant-1 made an application to the OP-1 for providing the treatment related papers, but the document was provided by the OP-1 on 06.04.2010. Thereafter the Complainant-1 made an application to the West Bengal Medical Council on 07.06.2010 for taking necessary action against the OP-2 due to his negligent act. The OP-2 sent his reply on 03.07.2010 to the Council with a copy to the Complainant-1 and thereafter hearing date was fixed by the W.B.M.C on 09.08.2010. On the said date the Complainant-1 attended the hearing, deposition was taken, but no further steps has been taken by the said authority as yet. As the grievance of the Complainants have not been redressed by the OPs till filing of this complaint, hence having no other alternative the Complainants have approached before the Ld. Commission Barasat by filing this complaint praying for direction upon the OPs to pay a sum of Rs.10,00,000/- by way of compensation on account of loss of life of the victim and a sum of Rs.2,05,000/-, incurred by the Complainants towards the treatment cost of the victim along with litigation cost to them.

WRITTEN VERSION OF THE OP-1:-

The petition of complaint has been contested by the OP-1 by filing written version contending that Mr. Pradip Kumar Chatterjee, since deceased was 57 years old, known patient of diabetes mellitus and hypertension was admitted at the OP-1 in the ICCU, Bed No. 644 on 14.03.2010 under the care of OP-2 (Neurosurgeon) following a massive head injury reportedly sustained by road traffic accident at around 10.30 PM on 14.03.2010 near CIT Building, Beliaghata Road. It was reported by the person who brought the injured that he was hit by a speeding motor bike while crossing the road. When the patient was brought was found unconscious following the impact of the fall. On admission he was disoriented and could not recall the incident. On examination it was noticed that GCS was E4M4V2 and BP was 210/110. He was put on IV fluid, IV Augmentin, IV Pantodac, IV Mannitol, IV Eptoin, IV Labetolol etc. Blood sample was sent for Hb, TC, DC, RBS, Urea, Creatinine, Blood Grouping and Typing etc, CT Scan of brain, X-ray of Cervical Spine–AP and Lat, Chest X-Ray–PA View was done. CT Scan revealed Bifrontal and left temporal Haematoma. The Patient was incubated and put on ventilation on 15.03.2010 due to deterioration of the condition of the patient since morning. The matter was thoroughly discussed by the OP-2 with the family members of the patient regarding need of urgent decompressive craniotomy and evacuation haematoma. Prognosis was guarded and explained in details to the relatives of the patient. The Patient underwent operation on 15.03.2010 and after operation he was taken in the ICCU at about 03:00 P.M. The OP-1 has mentioned the medical status of the patient after operation in the BHT (Bed Head Ticket). The patient was kept on insulin. The OP-1 has mentioned in the written version that date wise medical status, condition of the patient and advise of the treating Doctor/s in the BHT on regular basis till his death. On 29.03.2010 there was no response of pain, sodium-bicarbonet started, Nephrologists referred, patient was in septic shock with multi-organ failure, and urgent haemo-dialysis was suggested to combat metabolic acidosis. At 5:30 PM the condition of the patient became very much grave, patient party was informed. At 8:35 PM condition more or less was same. At 10:20 PM sudden cardiac arrest, CPR started and at 10:50 PM patient expired. It was written that cause of death will be determined by post mortem examination.

The OP-1 has stated that from the aforesaid treatment schedule it is appeared that what was done by the OPs was done according to accepted medical norms with utmost care in order to impart best possible medical treatment to the patient, but in spite of such treatment the patient breathed his last due to injury sustained by the accident. In absence of specific allegation against the OP-1 the Ld. Commission cannot hold the OP-1 as negligent in giving treatment to the patient. According to the OP-1 this complaint is liable to be dismissed with exemplary cost.

WRITTEN VERSION OF THE OP-2:-

The petition of complaint has been contested by the OP-2 by filing written version contending that the instant proceeding before the Ld. Commission being summary in nature, the issues involved in this complaint being complicated one, the same cannot be adjudicated upon in a proper manner by the Ld. Commission. The evidence to be extended by the parties in support of the respective contentions would involve elaborate oral and adducing documentary evidence and detailed scrutiny, assessment of such evidence by this Ld. Commission constituted under Consumer Protection Act cannot be possible. For adjudication of the instant dispute evidence from the expert doctor in the field of medical science is highly required. The OP-2 has denied each and every allegation as made out by the Complainants in the petition of complaint.

It is further stated by the OP-2 that the patient was admitted at the OP-1 in the night of 14.03.2010 following a report of a road accident. He underwent and urgent CT scan of the brain immediately after the admission for assessing the severity of his head injury since he was noted to be disoriented and unable to recall the events of the accident. He was immediately admitted to the ICU and commenced on medication to combat the effects of the injury in his brain. After perusal of the CT scan findings and the clinical information of the patient the doctor came to know that the patient had history of diabetes and high blood pressure, therefore the surgery of the patient was detected as high risk surgery. The patient was under intensive monitoring in the ICU at OP-1. Despite best efforts by giving medical treatment for his brain injury the clinical condition of the patient was seen deteriorating in the morning of 15.03.2010. He was immediately incubated and put on ventilator for reducing brain swelling. An urgent repeat CT scan of the brain was performed in the morning of 15.03.2010 to assess the change in the nature of his brain injury after duly informing the patient party about the deterioration and obtaining due consent for the CT scan. The report of the CT Brain Scan demonstrated marked increase in the size of the blood clots in various parts of the brain with severe associated swelling of the brain. Finding no other alternative the patient was taken for an emergency surgery for evacuation of the blood clots and relief of the increased pressure within the brain as the only life saving measure remaining since all other medical therapies had been exhausted. This was done after due consultation with the brother of the patient Shri Pranab Chatterjee, representing the patient party and obtaining valid written consent for the surgery from Shri Chatterjee before commencement of the operation. The severe nature of the brain injury and the worsening condition despite all appropriate medical treatment and the magnitude of the surgery along with associated risks of the operation were explained to Mr. Chatterjee in details. Mr. Chatterjee was given a clear image of the critical condition of the patient at that particular point of time.

The surgery was carried out successfully and the patient was returned to the ICU in a stable condition. The patient was managed by the specialist doctors. Medical treatment for the brain injury including ventilation was carried out successfully over the next few days when the condition of the patient got some improvement, although he remained in a state of Coma. He underwent a surgery for insertion of Tracheotomy on 20.03.2010 with the aim of trying to wean him of the ventilator. This was done after due consultation with Shri Chatterjee and getting written consent for the same from him. Gradual weaning from the ventilation was proving successful till the night of 23.03.2010 when the patient developed fever and breathing difficulty. Chest infection cropped up, which could not be responded to any medical treatment. Despite the best efforts of Dr. Sumit Sengupta, Consultant Chest Physician and Dr. Susrut Bandhopadhyay, Consultant Intensive Care, the infection was spreading to his other organs which led to multi-organ failure. The patient succumbed to sepsis and multi-organ failure at 10:20 PM on 29.03.2010. As such from the above noted elaborate details of the medical treatment of the patient it can safely be concluded that the OP-2 cannot be held guilty on account of medical negligence due to untimely death of the patient. But the Complainants have filed this complaint to squeeze money from him in an unauthorized and illegal manner. This complaint has been filed by them intentionally and motivated manner only to malign their reputation and respect in the medical field. According to the OP-2 as there is no negligence on his behalf in providing proper treatment to the patient in accordance with the medical science, hence the instant complaint is liable to be dismissed with cost.

POINTS FOR DETERMINATION:-

1. Whether the Complainants can be termed as Consumers or not?
2. Whether this complaint is maintainable from the points of its territorial and pecuniary jurisdiction?
3. Whether there is any medical negligence on the part of the OPs or not?
4. Whether the Complainants are entitled to get any relief as sought for or not?

DECISION WITH REASONS:-

1. In respect of the point no-1 we are of the view that the Complainants are the consumers in view of the definition of ‘Consumer’ as enumerated in the Consumer Protection Act, 1986 on the ground that they have hired the medical service and treatment from the OPs by making payment of due consideration amount. Therefore the Complainants are the consumers and the OPs are the service providers. Thus the point no-1 is disposed of in favour of the Complainants.

2. In respect of the point no-2 we are to say that initially this complaint was filed before the Ld. Commission, Barasat. But after establishment of this Ld. Commission this record has been transferred before this Ld. Commission as the addresses of the OPs fall within the territorial jurisdiction of this Ld. Commission. So from the point of territorial jurisdiction this complaint is well maintainable before this Ld. Commission. Regarding pecuniary jurisdiction it is seen by us that the Complainants have sought for compensation to the tune of Rs.10,00,000/- along with refund of the treatment cost as incurred by them for Rs.2,05,000/- from the OPs. As this complaint was filed u/S 12 of the Consumer Protection Act, 1986, hence it should be adjudicated under the 1986 Act. So it is crystal clear that the complaint value is for Rs.12,05,000/-, which does not exceed the pecuniary jurisdiction of this Ld. Commission. So from the point of its pecuniary jurisdiction also this complaint is very well maintainable. Thus the point no-2 is decided in favour of the Complainants.

3. The Complainant and the OPs have adduced evidence on affidavit respectively. Be it mentioned that initially the complaint was filed before the Ld. DCDRF, Barasat (Commission as amended with effect from 20.07.2020). After establishment of this Ld. Commission this record has been transferred from the Ld. Commission Barasat to this Ld. Commission in view of the order passed by the Hon’ble SCDRC at the stage of filing reply by the Complainant to the questionnaire of the OP-1 along with cost. It is evident from the record that this complaint was heard on merit in presence of both parties and date was given for delivery of judgement. On 30.06.2014 when this complaint was fixed for delivery of judgement the Ld. Commission, Barasat had detected that there is no expert opinion from the expert doctors in this complaint, which is highly required. For this reason date was given to the Complainants for taking necessary steps in this regard on 11.08.2014. Thereafter argument was taken and final order passed in favour of the Complainants directing the OPs to pay Rs.5,00,000/- to the Complainants due to loss of the life of the victim along with litigation cost of Rs.5,000/- and further direction was given to the OPs to comply with the said order within two months from the date of the order i.e. 24.09.2014, failing which punitive damage @ Rs. 100/- per day for each day’s delay shall have to be deposited with the State Consumer Welfare Fund.

Being aggrieved with the said order the OP 1 and 2 have preferred two appeals separately bearing no-1257/2014 and the 1344/2014 before the Hon’ble SCDRC. The Hon’ble SCDRC has been pleased to allow the both appeals setting aside the order impugned and the case was remanded back to the Ld. District Commission, Barasat for hearing with the complaint case afresh as per standard procedure of justice delivery system upon allowing both the parties the opportunities of cross examination by means of exchanging the questionnaire and replies thereto among the parties of the both sides. It is mentioned in the said judgment of the Hon’ble SCDRC that-

‘it is well settled even in the case of summary proceeding, in the Interest of Justice opportunities of cross–examination the right of which seems to be a fundamental right, shall be allowed to the parties of both the sides, which was not allowed in the case in hand. It is also well settled that the legal right of the parties should not be taken away. In view of the discussion the order passed by the Ld. District Forum (Commission) does not appear to be just and lawful.’

The record was placed before the Ld. Commission Barasat in view of the put up petition filed by the Complainants and having regard to the order passed by the Hon’ble SCDRC in the said two appeals scope was given to the OPs for filing questionnaire in respect of the evidence adduced by the Complainants. The OP-1 filed questionnaire on 13.06.2018, date was fixed on 12.10.2018 for filing reply by the Complainants on affidavit. By filing a petition the OP-2 submitted that he will not file any questionnaire. On 12.10.2018 the OP-1 was present, but none was present on behalf of the Complainants. Due to non-filing of the reply from the end of the Complainants in the Interest of Justice further date was given to the Complainants for filing reply subject to payment of cost of Rs.500/- payable to the Consumer Legal Aid Account. Date was fixed on 21.01.2019 for filing reply by the Complainants along with cost. On the next date the Complainants remained absent as usual, but showing Natural Justice the scope for filing reply was not curtailed, rather further date was given on 22.04.2019 along with show cause subject to payment of further cost of Rs.500/-. On 22.04.2019 though the OPs were present through their Ld. Advocates but Complainants did not present. As such date was fixed on 03.05.2019 for passing necessary order. On 03.05.2019 due to cease work by the local Bar Association further date was given on 05.07.2019 for passing necessary order. On 05.07.2019 though OPs have filed Hajira, but the Complainants did not turn up. At this juncture this case record has been transferred from the Ld. Commission, Barasat to this Ld. Commission. After receiving the record first date was fixed in this Ld. Commission on 19.03.2020. On that date in view of resolution adopted by the District Bar Association of this District as well as Consumer Court Bar Association having office at Kreta Suraksha Bhavan along with the resolution adopted by the Bar Council of West Bengal the Advocates have abstained from taking any step. All the resolution speaks volumes for the inability of the Advocates in participating in the Judicial Proceeding due to outbreak of Corona Virus. On that date parties were found absent on call. As such the case was adjourned to 17.04.2020. On 17.04.2020 this record could not be placed before the Ld. Bench of this Ld. Commission on the ground that during that period Lockdown was declared by the Government of India as well as Government of West Bengal on account of severe outbreak of Corona Virus and accordingly this record was placed on 01.10.2020. On the said date none was present on behalf of the parties. The Ld. Bench was pleased to direct the office to inform the both sides. Next date was given on 28.12.2020. On 28.12.2020 the Complainants in person and the OP-1 through the Ld. Advocate were present. The Complainants was given chance to file reply. Date was fixed on 08.03.2021 for filing reply by the Complainants. On 08.03.2021 time was sought for filing reply by the Complainants, objection raised by the Ld. Counsel for the OPs. In the Interest of Natural Justice further time was allowed for filing reply by the Complainants on 28.06.2021 along with cost of Rs.1,000/- payable to the Consumer Legal Account. On 28.06.2021 this record could not be placed before the Ld. Bench on account of severe spur of Covid-19 (2^nd Wave), Lockdown was declared by the Government of West Bengal. Accordingly this record was placed before the Ld. Bench on 30.07.2021. On that date further time was granted by this Ld. Commission for filing reply by the Complainants along with payment of cost on 06.01.2022. On 06.01.2022 Complainants did not turn up, no reply was forthcoming. The Ld. Counsel for the OP-1 was present. Record speaks that in spite of getting ample opportunity the Complainants is very much reluctant to appear before this Ld. Commission. 11.01.2022 was fixed for passing necessary order. On account of Covid-19 (3^rd wave) this case record could not be placed before the Ld. Bench and accordingly it was placed on 14.01.2022. On that date the Ld. Counsel for the OP-1 was present, none was present on behalf of the Complainants. Further date was fixed for filing reply by the Complainants on 20.01.2022. On 20.01.2022 the Complainants remained absent; the Ld. Counsel for the OP-1 was only present. The Ld. Commission was pleased to pass an order that on behalf of the office of this Ld. Commission intimation was given to the Complainants, but to no effect, hence the scope for filing reply by the Complainants has been strike out. The evidences of the OPs are already on record.

So as the Complainants did not bother to file reply to the questionnaire of the OP-1, hence the evidence of the Complainants has lost its evidentiary value. The Complainants did not take any step to challenge the evidence of the OPs by filing questionnaire. Therefore it is clear to us that inspite of getting chance for cross-examination through an order passed by the Hon’ble SCDRC, but the Complainants have miserably failed to utilize the said scope.

Now we are to say that the petition of complaint filed before the Ld. Commission, Barasat was no supported by affidavit, which is mandatory in view of the judgment passed by the Hon’ble Supreme Court in the case of Dr. J.J. Merchant (supra). But the written versions filed by the OPs are supported by affidavit. Therefore the petition of complaint has also lost its value in comparison with the written versions of the OPs.

Inspite of this we have carefully perused the entire record. It is seen by us that there is no iota of evidence adduced by the Complainants or the documentary evidence (BHT of the patient) from where it can be ascertained that there was negligence and deficiency in providing proper and accepted medical treatment to the patient. The Complainants have stated that if the surgical intervention was done on 14.03.2010 i.e. immediately after the admission of the patient, then the life of the patient could be saved. But in this respect no expert evidence is forthcoming from the expert doctor. Practically it is found that inspite of getting scope for getting expert opinion from the expert doctor of the concerned field, the Complainants did not take any step in that context. We have gone through the medical records as filed by the Complainants from where it is evident that the OPs have meticulously maintained the BHT of the concerned patient. There is plethora of judgments passed by the Hon’ble Supreme Court and the Hon’ble NCDRC that inspite of best treatment and efforts from the end of the treating doctor/surgeon, if the patient does not survive, no allegation can be drawn against the said doctor/surgeon regarding medical negligence. In the case in hand there is no evidence on behalf of the Complainants to prove that the OPs did not provide approved and accepted medical treatment to the patient as per the standard medical protocol and books or deviated the standard medical protocol in providing medical treatment to the patient. Without any evidence only based on the wild allegations made out by the Complainants we cannot hold that the medical service provided by the OPs suffers from deficiency in service as well as medical negligence. Therefore it can safely be said that the Complainants have failed to prove any medical negligence and deficiency in service on behalf of the OPs to the patient. Thus the point no-3 is decided against the Complainants.

4. As the Complainants have failed to prove any medical negligence and deficiency in service from the end of the OPs by adducing any convincing and cogent evidence, the Complainants are not entitled to get any relief as sough for. Thus the point no-4 is decided against the Complainants.

ORDERING PORTION :-

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-RBT/CC/138/2020 is hereby dismissed on contest. However considering the facts and circumstances of the complaint there is no order as to cost.

Let plain copy of this judgment/final order be given to the parties free of cost as per the CPR.   

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER