Date of filing: 15.06.2016 Date of disposal: 30.11.2017
Complainant: Sri Ashim Dawn, S/o. Late Biswanath Dawn, residing at village & Post Office: Ratibati, Police Station: Raniganj, District: Burdwan.
Opposite Party: 1. Asansol Medical Centre (P) Ltd., Lower Chelidanga, G. T. Road (West), Post Office: Asansol- 713 304, Police Station: Asansol (South), District: Burdwan, represented by its Director at the above address.
2. Medica Superspeciality Hospital, 127 Mukundapur, E. M. By-Pass, Kolkata – 700 090, represented by its Vice-Chairman at the above address.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Sri Pankaj Kumar Sinha.
Hon’ble Member: Smt. Nivedita Ghosh.
Appeared for the Complainant(s): Ld. Advocate, Indrajit Mukherjee & Kailash Dutta.
Appeared for the Opposite Party No. 1: Ld. Advocate, Subrata Ghosh.
Appeared for the Opposite Party No. 2: Ld. Advocate, K. Ghosh.
J U D J E M E N T
This complaint is filed by the complainant against the OP-1 alleging medical negligence as the OP-1 has not provided proper medical treatment.
The brief fact of the case of the complainant is that the complainant being an unemployed person for earning his livelihood doing odd jobs as casual worker. The complainant admitted his wife at the OP-1 nursing home on 30.04.2013 with acute abdominal pain with the expectation of receiving correct, accurate and fast medical diagnosis and treatment. The patient was medically examined and initially diagnosed to be suffering from ‘çholecystitis’ or ‘pancreatitis’ and medicines were prescribed for controlling and curing the said condition. But as her condition and affliction did not improve, further investigations such as CT Scan of the abdomen, Endoscopy, X-ray of the chest, ECG & Echocardiograph were recommended on 01.05.2013, all of which were duly conducted on 01.05.2013 & 02.05.2013. Although there was no clear finding in the CT Scan Report, further medicines were administered upon her. On 03.05.2013 the acute pain did not diminish to a certain extent, but the patient began to suffer from ‘nausea’ and vomiting, for which further medicines were administered, but no appreciable improvement was noticed in the patient, who continued to suffer from ‘nausea’ vomiting and pain in the abdomen on 04.05.2013, 05.05.2013, 06.05.2013 & 07.05.2013 with further deterioration in her condition, despite various new medications being administered to the patient by way of experimentation thereupon. Despite clear signs that the patient was not responding to the line of treatment, no attempt was made either for a new diagnosis or referring the patient to a higher medical centre for better management, which ought to have been done by the medical authorities at OP-1 nursing home. As a result of the OP-1 retaining the said patient instead of releasing her on 03.05.2013 and referring her to a higher medical centre for further investigations, diagnosis and treatment, the condition of the patient deteriorated to such an extent that the medical personnel at the OP-1 stopped recording the Blood Pressure and Heart-Rate/Pulse of the patient in her medical records from 04.05.2013 onwards. Ultimately, the patient was referred to a higher medical centre for better management on 08.05.2013 which in greatly emaciated condition. The patient was rushed to Medica Superspeciality Hospital, Kolkata, the OP-2 on 08.05.2013 and was admitted at around 7.30 p.m. On that day itself at CCU with Heart Rate/Pulse at 120/min and Blood Pressure at 80/60. Immediately medications were administered based on the previous investigations and line of treatment. Thereafter, routine investigations were carried out and the preliminary reports suggested that the patient was (i) in hypovolemic shock, (ii) Met. Acidosis and (iii) Hupovolemia. On 09.05.2013 further measures were taken in line with the deteriorating condition of the patient, and a fresh CECT Scan of the whole abdomen was carried out for a new diagnosis as the patient was not responding to the treatment for Çholecystitis’ or ‘Pancreatitis’ which had been diagnosed by doctors at the OP-1. However, the CECT Scan was completely different and revealed that there was a ‘gut obstruction’ at I-
C junction, which was further investigated and confirmed by ‘exploratory laparotomy’. Medical procedures and medicines were administered immediately with the aim of controlling and improving the situation by the OP-2, but the erroneous diagnosis and prolonged erroneous treatment at the OP-1 nursing home and the delay in releasing the patient contributed to and were the sole cause of the deterioration in the condition of the patient. Despite emergency measures and medications being administered to the patient by the OP-2, the patient ultimately suffered a cardiac arrest in the morning of 11.05.2013, and despite CBG being given as ACLS protocol, the patient could not be revived and was declared dead shortly thereafter, with devastating effect upon the complainant and his family. After recovering from the effects of the devastating death of his wife, the complainant met the authorities of the OP-1 in March 2014 for the purpose of (a) obtaining records of the treatment given to Barnali Dawn (wife) during her stay at the OP-1 from 30.04.2013 to 08.05.2013 and for (b) lodging a formal complaint of medical negligence against the administrative and medical authorities of the OP-1. However, after undertaking to keep the documents ready for handing over to the complainant on several specified dates and compelling the complainant to attend the OP-1 nursing home on each date, the OP-1 ultimately informed the complainant in March 2015 their inability to provide the documents to him unless called for by a legal forum. In this situation the complainant contacted Ld. Advocate Debi Prasad Banerjee and the advice of the ld. Advocate and initiative a copy of the treatment records of Barnali Dawn was provided to the complainant in June 2015 with several interpolations. A perusal of the said medical records will clearly indicated the nature and extent of medical negligence of the OP-1, in as much as the diagnosis and line of treatment prescribed for the patient at the OP-1 nursing home was grossly erroneous, and as a consequence there was no improvement in the medical condition of the patient, rather, there was rapid deterioration. Despite the same, no attempt was made by the OP-1 to either initiate or explore a new diagnosis or to release the patient forthwith and refer her to a higher medical centre for better management, as was requested by the complainant on 03.05.2013. These failures by the OP-1 ultimately resulted in her death. The 30 year old patient died due to a medical condition caused by medical negligence and deficiency of service at the OP-1, with devastating consequences for the complainant, as the deceased was the only female member in the household of the complainant. The OP-1 is also guilty of having surreptitiously interpolated the BHT of the said patient by subsequently inserting the words “patient to be referred to higher center” on 04.05.2013 & 07.05.2013. In fact, despite the complainant requesting the authorities and the visiting doctors to release the patient on 03.05.2013 so that she could be taken to a higher medical centre for better diagnosis and management, the complainant was repeatedly reassured that such steps was not necessary as they had diagnosed the actual affliction and the patient would soon be on her way to recovery. The aforesaid inappropriate action by the OP-1 besides being a clear instance of medical negligence, also underlines the unfair trade practices adopted by the OP-1 in retaining the patient from 03.05.2013 to 08.05.2013 at the OP-1 nursing home and releasing the patient for referral to a higher medical centre for better diagnosis and management only on the afternoon of 08.05.2013 when the condition of the patient had deteriorated further and reached a critical condition. All these taken together clearly amount to deficiency in service on the part of the OP-1 towards the complainant. The aforesaid development has occasioned grievous loss and immeasurable hardship to the complainant. The complainant as also his child have had to make do without a homemaker and a mother all on a sudden, and the same has resulted in untold misery and agony to the complainant as also to his minor child, and their very existence and normal activities are at stake due to the gross medical negligence and unfair and unethical business practices adopted by the OP-1. The complainant has prayed for reimbursement of medical expenses recovered by the OP-1 valued at Rs. 55,000=00, reimbursement of medical expenses recovered by the OP-2 valued at Rs. 2, 58,841=00, damages amounting to Rs. 3, 00,000=00 for having undergo and suffer untold mental anxiety, acute stress and agony and immense inconvenience, hardship and expenses since admitting his wife for treatment at the establishment of the OP-1 and interest thereof.
The complaint petition is contested by the OP-1 by filing written version denying all the material allegations made by the complainant in his petition of complaint. The OP-1 has stated that the complaint is bad in law, vague, misconceived, speculative, harassing in nature, adverse to the real state of affairs and based on fanciful and baseless allegations. The OP-1 stated that wrong diagnosis is not at all medical negligence. OP-1 also iterated that the present case is very much complicated one and the complainant has not prayed for any expert to detect medical negligence on the part of the treating doctor. Lastly the cause of death of the patient occurred at Medica Superspeciality Hospital, Kolkata, the higher medical centre for reference, because the death has been caused after operation there, i.e., at Medical Superspeciality Hospital and only medication has been given on the patient by the OP-1. The case of the OP-1 is that the cause of action of this case actually arises on and from 11.05.2013. This complaint ought to have been filed on or within 10.05.2015 but the complaint has been filed on June 2016. There is delay of more than one year in filing this complaint. The complainant in accordance with the advice of the ld. Advocate has tried his best to extend the cause of action on the analogy of demand and supply of documents, by filing representation through his ld. Advocate. That in accordance with the provision of law demand of treatment related documents by the complainant and supply of documents by the Op as well as representation by the ld. Advocate does not extend the cause of action from the date of actual accrual of cause of action. As such this complaint is barred by in accordance with the provision of Section 24A of the C.P. Act. So, the instant complaint filed by the complainant is liable to be summarily dismissed/rejected thereby treating the said complaint petition as time barred; otherwise this OP will be seriously prejudiced. This Op further begs to state that the application condonation of delay filed by the complainant before this ld. Forum is not tenable in the eye of law. As per Section 24A of C.P. Act delay in filing the complaint may be condoned by sufficient grounds. The complainant must have to explain the reason of delay day by day with the sufficient grounds. But in the fourcorners of the application filed by the complainant for condonation of delay, no sufficient grounds have been mentioned for condonation of delay. Moreover, the complainant has not specifically mentioned how many days delay has been caused to file the instant complaint. In the prayer portion of the delay application, the complainant has not mentioned how many days of delay to be condoned by the ld. Forum. As such the application filed by the complainant for condonation of delay is liable to be rejected with compensatory cost and the case is liable to be dismissed as barred by limitation.
The OP-2 has also contested this complaint by filing separate written version stating that the complaint is bad for non-joinder and mis-joinder of parties. This Op has further stated that no relief has been sought for against the OP-2 but the name of the OP-2 has been added. The OP-2 has prayed for dismissal of the complaint against them with cost.
Decision with reasons:
Heard the argument from both sides at length. Several question have been cropped up during argument.
The complainant mainly argued that the diagnosis, as well as, prognosis are wrong but according to the landmark judgment of Hon’ble NCDRC in case of Badam Agaiah & Ors. Vs. Dr. L. Vidya Sagar Reddy, MD, Pavan Nursing Home in the Revision Petition No. 15 of 2013 & Revision Petition No. 2764 of 2013 with Interim Application Nos. 17/2012 & 4775/2013 and Interim Application No. 4776 of 2013 dated 23.5.2014 Their Lordships have held that”Error of judgment in reaching correct conclusion about proper diagnosis cannot be termed as medical negligence”. During pronouncing the order Hon’ble NCDRC relied mainly on the order passed by the Hon’ble Apex Court in Jacob Mathew versus State of Punjab & Anr. 2005 (3) CPR 70 (SC): (2005) 6 SCC 1. (Para 8).
The degree of skill and care require by a medical practitioner is so stated in Halsbury’s Laws of England (4th Edn., Vol. 30, para 35):
“The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary case”.
“The above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence.
In the present case, applying the tests stated above, it is not established that the doctor or the hospital was found negligent in attending the patient properly or administering treatment at proper time”.
So the OP cannot be termed as negligent for wrong diagnosis, as well as, prognosis.
The case as per the records of the case is concerned it is evident that the case is very much complicated and in this regard for removing any shortcomings in reaching a conclusion appointment of an expert is very much necessary. The Hon’ble NCDRC in the case of Mrs. Nalini versus The Chief Cardiac Surgeon, Manipal Hospital & Anr. In First Appeal No. 163 of 2006 dated 23.9.2011 it has been decided that “In complicated cases, without support of any expert’s opinion, complainant’s case of alleged medical negligence cannot be accepted only on basis of his affidavit or some entries in medical record”. Here the complainant has not prayed for appointment of any expert to ascertain any negligence on the part of the OP, which is also evident from the decision in the case of C.P. Thakur.
The complainant also argued that delay in referring the patient has been caused which he did not write in his complaint petition. During argument he raised the point that patient has been admitted on 30.4.2013 and referred on 08.5.2013. But the record i.e. prescription of Asansol Medical Centre shows that the patient has been referred on 04.5.2013 (should be referred) and referred on 07.5.2013, which the complainant agued the first reference i.e. on 04.5.2013 has been incorporated later on. But the complainant has not prayed for any hand writing expert in this regard. Again the patient had died after operation in the higher medical centre where the patient was referred. Only medication for the period from 30.4.2014 to 07.5.2013 has been given to the patient. But the patient had died after operation in Medical Superspeciality Hosptial, Kolkata. So whether the patient has died due to negligence on the part of the OP- Asnasol Medical Centre or in the Medical Superspeciality Hospital or for operation is not confirmed or cannot be ascertained.
Lastly, as regards the delay in filing the complaint, it is seen from the office records that the complainant has originally prayed for condonation of delay on 15.6.2016 u/S. 24A of the C.P. Act but lastly on 27.6.2016 vide order No. 03, the application for condonation of delay has been ‘’not presses” and the ld. Forum has admitted the case hearing only from the complainant. During argument the OP raised the question of limitation period for admitting the complaint. The complainant argued that the date of cause of action is the date when the claim has been rejected. But the OP argued that cause of action in case of medical negligence – if effect of negligence is patent cause of action due to arise on the date when the act of negligence was done – if effect is latent cause of action will arise on the date when the harm/injury caused is discovered citing the reference of order of the Hon’ble Supreme Court in case of Dr. V. N. Shrikhande Versus Mrs. Anita Sena Fernandes. In this case the patient had died on 09.5.2013 and from this date the cause of action starts and the complainant should file the complaint within two years from 09.5.2013, but the complainant has filed this case on 15.6.2016 i.e. after expiry of two years. Hence, the case is barred by limitation u/S. 24A of the C.P. Act and the complaint should be dismissed.
Hence, it is
O r d e r e d
that the Consumer Complaint No. 104/2016 be and the same is dismissed on contest against the Ops without any cost.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Correctd by me: (Jayanti Maitra (Ray)
President
(Pankaj Kumar Sinha) DCDRF, Burdwan
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
