In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/12/2022.
Date of filing: 28/01/2022. Date of Final Order: 18/09/2024.
- Sambhu Thakur,
S/O Late Basu Thakur
- Rekha Thakur W/O Sambhu Thakur
Both are resident of Vill. & P.O.- Belun
P.S.- Pandua Dist. Hooghly Pin-712149.…..complainant
- Block Medical health Officer
Pandua Block Hospital, Pandua, Hooghly, Pin-712149.
- Dr. Manishankar Mukherjee
Gynecologist, Block hospital pandua,
Pandua, Hooghly, Pin-712149.
- Dr. Chandan Kumar
Gynecologist, Block Hospital Pandua,
Pandua, Hooghly, Pin-712149.
- Dr. Sankar Narayan Sarkar
Gynecologist, Block Hospital Pandua,
Pandua, Hooghly, Pin-712149.
- Dr. A.K. Nandy
Gynecologist, Chinsurah Imambara Sadar Hospital,
Hooghly, Pin-712101.
- CMOH,
Chinsurah Hooghly, Pin-712101
Before: President, Shri Debasish Bandyopadhyay.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that Sharabani Thakur wife of Rajesh Thakur got conceived and at the time of delivery she was admitted to Pandua Block hospital on 22/10/2021 at 10A.M under the supervision of Dr. Manisankar Mukherjee (O.P. No.2). The patient Sharabani Thakur was in normal condition at that point of time. The opposite party No.2 namely Dr. Manisankar Mukherjee did not measure blood pressure of the patient. The O.P. no. 2 assured the complainant that the normal delivery will be done during the period of evening section.
That the complainants were definite about the honesty of Dr. Manisankar Mukherjee ( O.P. No. 2). The opposite party No.2 never advised the complainants to transfer the patient namely Shrabani Thakur to the District Hospital Sadar Hooghly.
That the condition of the patient became more worsened in respect of physically at the time of evening on 22/10/2021. The complainant repeatedly informed the opposite party No. 4, but he did not pay any heed to the complainants. Thereafter another Doctor Chahdan Kumar (O.P. No. 3) came to visit the patient namely Shrabani Thakur at labour room of the hospital. He also did not measure blood pressure and sugar of the patient. At about 7:30 P.M. another Doctor Sankar narayan Sarkar (O.P. No. 4) came to visit the patient Shrabani Thakur and he informed the complainant that there is no chance of normal delivery of the patient. O.P. No. 4 advised for ultra sonography in order to observe the baby inside the womb of the patient.
That half an hour after at about 8P.M. the patient started vomiting. The complainant repeatedly informed opposite parties and nurses, but they did not respond at worse condition of the patient. At last O.P. No. 4 only prescribed one syrup of Rs.220/- (Two Hundred twenty). After consuming syrup the patient started more vomiting. The complainants further informed the opposite parties. The Doctors and Nurses neither took step to save the patient nor did make any further prescription for recovery of the patient. Complainants have been harassed without numbers by the doctors as well as the nurses.
The complainants being the patient party became shocked and finding no other alternative way they took the patient by trolly at the door of doctor’s room when it was 10 P.M in the night.
The nurses suddenly pushed injection at the waist of the patient and at that point of time the patient became completely senseless. The patient was admitted at sharp 10 A.M on 22/10/2021 and thereafter the patient was at Pandua Block Hospital till 10: 30 P.M in the night, during the period of admission the patient was in normal condition, and after 12 hours the patient became senseless and completely unconscious without proper service of treatment when it was 10:30 P.M. in the night.
That thereafter the patient was transferred by ambulance and further admitted to Chinsurah Imambara Hospital under observation of Dr. A.K. Nandi, When it was 11:30P.M in the night the Doctor A.K. nandi visited the patient and informed the complainant that the patient was in danger condition. The Doctor namely A.K. Nandi further informed the complainants, that both patient and her baby was in severe condition. Dr. Ak Nandi neither took steps to save the patient nor took steps to make eeaseream operation of patient.
That at about 8 A.M. the morning on 23/10/2021 the patient was transferred to P.G Hospital in Kolkata. The doctors of P.G. Hospital observed the serious condition of the patient and executed one bond on which the complainants put their signature on what basis seizure was done by the doctors and the patient gave birth one male child. The new born baby was in serious condition and put him in ventilation when it was 6:30P.M on 23/10/2021 the mother patient also put into ITU ward as No.1 ventilation.
That the patient namely Sharabani Thakur was fully unconscious till 12:20 P.M. on 28/10/2021 and unfortunately got expired on 28/10/2021.
The patient namely Shrabani Thakur was the daughter of the complainants, and the wife of her husband namely Rajesh Thakur and also mother of new born baby. The patient namely Shrabani Thakur is presently deceased in terms of murder due to negligence of the service of doctors (O.P. No. 2, 3 and 4, 5) which is amounting to offence of murder and it appears from the scenario of soon before death of the patient namely Shrabani Thakur.
That the complainants humbly submit that the doctors has a duty to obtain prior information consent from the patient before carrying out a diagonistic test and therapeutic management. Medical professional or Hospital shall be held liable for all action to save patient where they should have to take the proper standards so that the patients would not suffer on part of medical service.
That the complainants humbly submits that the Hon'ble Supreme Court observed that the medical practioners are covered under the Consumer Protection Act, 1986 and the medical services are rendered by them should be treated services under section 2(i)(0) of The Consumer Protection Act, 1986.
That the complainants humbly submits that medical negligence is standard care that's been provided by a medical professional to a patient, which has directly caused injury or caused an existing condition to get worse. There’s a number of ways that medical negligence can happen such as miss diagnosis, incorrect treatment or surgical mistakes.
That in view of above facts and circumstances the present patient namely Sharabani Thakur became a deceased person due to the negligence of medical service and therefore the complain made by the complainant dated 06/11/2021 before the CMOH, Hooghly, BMOH Pandua Rural Hospital, Director of Health Service (Govt. of W.B.), Health Minister Nabanna Howrah, Chairman of Human Rights Commission, District Magistrate of Hooghly, District Superintendent of Police, Hooghly and Officer-in-Charge of Pandua Police Station and disclosed the above material facts with a claim for punishment as per law and compensation for unfair medical service and medical negligence relating to incorrect medical treatment.
That the complainants further submitted another complaint dated 27/12/2021 before the District Magistrate, Hooghly and sought for relief towards the previous complaint dated 06/11/2021.
That one memo being No. 3780 dated 02/12/2021 issued by ADM(D), Hooghly addressed to CMOH, Chinsurah Hooghly to enquire details about the facts as per complaint of the complainant, the complainant approached to the office of CMOH, Chinsurah Hooghly but no satisfactory result came out.
That the complainants further submitted another complaint dated 05/01/2020 before the BMOH Pandua Hooghly had sought for relief as per their complain dated 06/11/2021.
Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 10,00,000/- as compensation for unfair medical practice or medical negligence and to pay a sum of Rs. 5,00,000/- for mental agony and to pay a sum of Rs. 4,00,000/- as compensation for mental harassment and to pay a sum of Rs. 1,00,000/- as litigation cost.
Defense Case:- The opposite party Nos. 2 and 5 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the said Doctor was in night duty on 21.10.2021 and his duty continued upto 01:00 P.M on 22.10.2021. So during his duty hour when Shrabani Debi in a normal condition only with the history of abdominal pain with 22.10.2021 as EDD, the O.P no 2 had done exactly what he had to do and that apart there was no scope for that O.P no 2 to render any further medical service or assistance and thus in that limited period of examination and observation there was no deficiency on the part of O.P no 2. Because the next doctor who succeeded O.P no 2 had then the scope to render treatment to her and he accordingly did it.
It is submitted that said Shrabani Thakur was admitted at around 11:39 P.M on 22.10.2021 in Chinsurah Hospital under O.P no 5. The case sheet was prepared and at the time of admission her B.P was 190/100 and her pulse was 100/min which specially in a case of advanced pregnant lady was quite dangerous. High risk consent about mother and baby was taken at the time of admission and the same was elaborately discussed with the patient party and after understanding the same the patient party in particular the husband wrote the same in the document. After examining the high risk patient who was still not in labor then, O.P no 5 prescribed tablet Labetalol (200) TDS [anti hypertensive drug) and it was clearly mentioned that if that medicine couldn't control the B.P then tablet Nicardia (10) mg BD was prescribed, that was also one antihypertensive drug. Added to that the said Doctor prescribed injection Magnesium Sulphate (an anticonvulsant drug), it is however stated that the patient had already received the loading doze and maintenance doze was advised to prevent convulsion due to increased B.P. As the patient was having tremendous high pressure this Doctor prudently advised certain investigations namely CBC: PT; INR; APTT; LFT; UREA; CR (Creatinine); Urine for Albumin on urgent basis and at 01:15 A.M on 23.10.2021 the prognosis of the mother and baby were again explained to the patients relatives in their own language. It is further to be mentioned here that on 23.10.2021 at 06:45 A.M again prognosis of mother and baby explained and the Doctor planned for emergency LUCS after collecting the reports. But, when the patient was under strict observation at about 02:45 A.M the urine output was only 250 ml. But again at 04:20 A.M on 23.10.2021 as the output of urine was same that is 250 ml. so I.V fluids and Diuretics got started now at 06:45 A.M as it was observed that the urine output remained the same i.e. 250 ml. but this time with High Color, it indicated Hematuria. And so inspite there was a plan for LUCS, considering the deteriorating condition of the patient and as the blood report was still not available, this Doctor very prudently referred the patient to Higher center for better management of mother and baby.
That this was what O.P no 5 exactly did during that course of treatment and thus it is clear that the said Doctor did what exactly he had to do and thus he committed no negligence nor there is any deficiency on his part. So, the complaint is liable to be dismissed.
The opposite party Nos. 1, 3, 4 and 6 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that opposite party no, 1 is the BMOH of Pandua Rural Hospital and opposite party No.6 is the Chief Medical Officer of Health, Hooghly. The complainants have neither made any averment against them, nor have they assigned any reason for impleading them as parties in this case. Thus they refrain from making any comment.
That opposite party No. 3 Submits that he is not a Gynaecologist as suggested in the cause Title of this. This opposite party was on emergency duty on 22-10-21 from 10,30 AM to 6.30 P.M. On that day the said patient sharbani Thakur was admitted at 12.50 P.M. at maternity ward by QP. No. 2. During handover Q.P. o.3 did not get an adverse report regarding the patient's condition from O.P. 2. Thereafter O.P. no. 3 examined the patient at 2 P.M. on that day during routine round examination and got the findings which are noted in the BHT.
The patient was stable and had no specific complaint during examination, After that upto 6.30 Р.И. the patient was stable and had no other complain when O.P. No, 3 handed over duty to O. P. N0. 4.
That O. P. No.4 also submits that he is not a Gynaecologist and that after taking charge from O.P. No.3 the patient was examined by him at 8:15 P.M, during routine round examination and got the finding which are noted in the BHT.
Sometime thereafter after receiving information from the patient party that the patient was restless, O.P. No. 4 immediately attended her and prescribed treatment as mentioned in the BHT,
Again at 10:30 P.M. OP. No. 4 attended her after receiving information from the patient that the patient was very much restless. On examining her it was found that the patient’s B.P. had increased abnormally from 120/72 at 8:15 P. M. to 160/120 at 10:30 P.M. At once op no. 4 gave necessary emergency management and informed the patient party that the patient's condition was not good and that she should be transferred to Imambara sador Hospital for better management,
After the patient was a stable with the emergency management provided, she was referred to District Hospital at 10.45 P.M. by O, P, No.4. Be it stated that по syrup was prescribed by op no. 4.
That it be further stated that O, P. No.4 tracked the patient at Dist, Hospital and got information through on duty nurse Rekha Ghosh Sengupta from on duty nurse of Dist, Hospital that the patient was stable and talking with her relatives,
That it is unfortunate that the patient died, but there is no negligence on the part of the doctors (O.P. Nos. 3 & 4) who attended her and there was an Inquiry Committee regarding the death of the patient and Q, P. No. 4 appeared on 23.12.2021 before the said committee, but there is no adverse report. So, there is no negligence on the part of O.P. Nos. 3 and 4nor any deficiency of service on their behalf. So, the complaint is liable to be dismissed.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the ld. Advocates of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The five points of considerations which have been framed in this case on the ground of maintainability, cause of action, whether the complainant is a consumer in the eye of law, whether the complainant is entitled to get compensation on account of medical negligence of the OP or not are all vital issues and the questions involved in these issues are interlinked and / or interconnected with one another and for that reason and also for the interest of convenience of discussion all the five points of considerations are clubbed together and taken up for discussion jointly.
For the purpose of arriving at just and proper decision in respect of the above noted five points of considerations and also for the interest of proper and complete adjudication of this case, there is urgent necessity of making scrutiny of the material of this case record and there is also urgent necessity of scanning the oral and documentary evidence on record.
After going through the material of this case record it appears that the complainants of this case are husband and wife and the parents of deceased Sharabani Thakur have instituted the case jointly but in this regard no permission has been obtained by the complainants for joint filing of this complaint case which is urgently required as per section 35 (1) (C ) of the Consumer Protection Act, 2019. In this regard it is important to note that the complainants have instituted this case according to the provisions of Consumer Protection Act 2019 but inspite of filing this case as per provisions of Consumer Protection Act 2019 no permission for joint filing of this complaint case has been obtained. Thus it is crystal clear that the complainants have not followed the legal provisions of section 35 (1) (C ) of the Consumer Protection Act 2019 and so this case is barred by the provisions of law.
Moreover, the complainants who are the parents of deceased Sharabani Thakur are not the legal heirs of Sharabani Thakur who is no more in this world and she expired by leaving behind her husband Rajesh Thakur and newly born male child who are the Class-1 legal heirs of deceased Sharabani Thakur as per provisions of section 16 of the Hindu Succession Act 1956. This factor is also reflecting that this complaint case has been filed by the complainants by violating the legal provisions of Hindu Succession Act and so it is crystal clear that this case is not maintainable in the eye of law.
Moreso in this case the legal heirs of the deceased Sharabani Thakur have not been impleaded as parties of this case. In this regard this District Commission shall not be out of mind that Rajesh Thakur who happens to be the husband of said deceased wife and the newly born child have not been impleaded as parties in this complaint case although they are necessary parties of this case. It is also important to note that the deceased Sharabani Thakur died at S.S.K.M Hospital on 28.10.2021. But fact remains that neither the SSKM hospital authority nor the doctor who provided treatment to the said deceased Sharabani Thakur at SSKM Hospital have also not been impleaded as party in this case although they are all necessary parties. All these factors are clearly reflecting that this complaint case is also bad for non-joinder of necessary parties.
A cumulative consideration of the above noted discussion goes to show that this case is not maintainable in the eye of law and as the complainants are not the Class-I legal heirs of the deceased Sharabani Thakur they have no cause of action for filing this case. In this regard it is also important to note that the complainants are also not the consumers under the OPs as the complainants have not paid any fees to the OP hospital authorities or to the doctors for the purpose of treatment said deceased Sharabani Thakur. Thus it is crystal clear the complainants are also not the consumer under the Ops. So the maintainability point, cause of action issue and the question whether complainants are the consumers in the law or not, are all decided against the complainants of this case.
The points of consideration No.4 is related with the question whether the complainants are entitled to get any compensation from the Ops on the ground of the deficiency of service and negligence on the part of the Ops. In this regard the complainant side has time and again in their complaint petition raised question about the negligence and deficiency of service of the doctors. In this regard it is the settled principle of law that term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in follow up care, at any point of time by treating doctors or anyone else it is always open to be considered by the commission. This legal principle has been observed by Hon’ble Apex court in the case of Chandra Rani Akhri and others Vs. M.A. Methusetherpathi (Doctor and others) and it is reported in II(2022)CPJ51(SC). In this regard it is important to note that the complainants have failed to prove any medical negligence of the Ops by way of furnishing cogent evidence such as expert opinion. In this connection this District Commission shallnot be out of mind that the complainants in course of trial have not prayed before this District Commission for appointment of expert for passing expert opinion about the medical negligence of the OPs in the matter of death of deceased Sharabani Thakur. Over this issue it is also the settled principle of law that no medical evidence to prove any specific kind of negligence on the part of the doctor no compensation can be awarded. In this respect the decision of the Hon’ble Apex Court reported in AIR 2018 Supreme Court 4625 is very important.
After going through the material of this case record it is revealed that the complainants have lodged complaint against OPs to different authorities and as per order of District Magistrate, the CMOH, Hooghly conducted enquiry and after enquiry no satisfactory result came out.
All the above noted factors are clearly reflecting that the complainants are not entitled to get any compensation or litigation cost from the Ops.
In the result it is accordingly
ordered
that this complaint case being no. 12 of 2022 be and the same is dismissed on contest.
No order is passed as to cost.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
