For the Complainants:     Mr. R.Sarma, Ms. K.D. Sarma, Ms.R. Kalita, Advocates

For the Opposite Party Nos. 1 to 4:Mr. S.K. Goswami, Mr. A. Acharyee, Advocates

For the Opposite Party Nos. 5 & 6:Mr. N. K. Baruah, Ms. P.Dutta, Advocates

Date of Hearing:              24-10-2019

Date of Judgment:           31-10-2019

                                                                                         J U D G M E N T

BY DR. (MRS.) JUSTICE INDIRA SHAH, PRESIDENT

          Late Archana Kalita Kakati, wife of complainant No. 1 and mother of complainant No. 2 and 3, expired on 26-10-2011 allegedly due to medical negligence of the opposite parties- doctors and hospitals and their deficient and negligent treatment. The complainants have filed this complaint under Section 17 (I) of the Consumer Protection Act, 1986, claiming compensation of Rs. 58,04,652/- and cancellation of licence of Chatribari Christian Hospital.

2.       Brief facts, as averred in the complaint, are that late Archana Kalita Kakati, while carrying pregnancy, time to time consulted Dr. Doly Talukdar, a Gynaecologist of Chatribari Christian Hospital (Opposite Party No. 4). On 8-9-2011, when she visited the doctor for medical check-up, Dr. Doly Talukdar after investigation and check up advised her to be admitted to undergo cesarean on the date of 8-9-2011 itself, as her first baby was born under cesarean and in case of delay the earlier stich would be ineffective. As per the advice of the doctor, the patient was admitted in Chatribari Christian Hospital. She was removed to Operation Theatre at around 4 p.m. and at 0.30 p.m., she was shifted to Intensive Care Unit. The complainant husband was informed that a male baby had been born. Thereafter, the opposite party asked the complainant to arrange Rs. one lakh for treatment of patient and whose condition they said was critical due to non-availability of machines which was supposed to be available in the Hospital. It is alleged by the complainant that Oxygen Cylinder was fitted by a ward boy without supervision of any doctor. The opposite parties suddenly arranged an Ambulance on 9-9-2011 at about 8.30 a.m. and sent her to Nemcare Hospital. Dr. Ajit Kumar Deka of Nemcare Hospital, on examination of the patient, opined that there was fault in administration of anaesthesia and also that less quantity of oxygen was provided. The patient was in Nemcare Hospital for sixteen days from 9-9-2011 to 24-9-2011. Thereafter, she was removed to Gauhati Medical College and Hospital on 24-9-2011 where she expired on 26-10-2011. The complainant lodged an FIR on 27-10-2011 at Paltan Bazar Police Station.

3.       The opposite party Nos. 1 to 4 in their written statement have averred that late Archana Kalita Kakati was brought at 4B, Chatribari Christian Hospital at 3.30 p.m. on 8-9-2011, suffering from severe pain in her abdomen. Dr. Doly Talukdar (opposite party No. 4) on examination found ‘scar tenderness’ (i.e. pain on the previous cesarean portion) and therefore, advised to undergo cesarean section operation as otherwise there was risk for the baby. A male baby boy was born at 6.30 p.m. on 8-9-2011. At 7.00 p.m., suddenly the patient developed cardiac arrest. Immediately, intubulation was done, 100% oxygen was given vide E.T. Tube and Cardiac massage was given by Surgeon. The complainant was informed by the doctor regarding the complication with regard to health of the patient. The opposite parties denied that the complainant was asked to get ready with Rs. one lakh.

4.       According to the opposite party Nos. 1 to 4, unlike other hospital, no money is to be deposited in pre-operation emergency cases in 4B Chatribari Christian Hospital. In fact,, the complainant deposited only Rs. 1000/- in the hospital on 9-9-2011. The opposite parties denied that the oxygen cylinder was fitted by a ward boy. According to the opposite parties, oxygen cylinder was fitted to the patient under the supervision of the doctor and 100% oxygen was provided to the patient. The patient was transferred to the Nemcare Hospital for her better treatment on the request of the complainant. The Hospital 4B Chatribari itself arranged the ambulance for the patient.

5.       It is averred in the pleading of the opposite party Nos. 1 to 4 that the patient was provided prescribed amount of Spinal Anesthesia and 100% oxygen at the time of operation. During the period of operation, the patient suddenly had Hypoxia (cardiac arrest). There was no negligence on the part of the opposite party Nos. 1 to 4.

6.       Opposite party Nos. 5 and 6 Nemcare Hospital and Dr. Ajit Kumar Deka of Nemcare Hospital have also contested the claim by filing separate written statements, alleging inter-alia that there is no cause of action against them. The complaint is vitiated in law for mis-joinder of parties and that there is no specific allegation against them.

7.       Following issues have been settled to be decided on the basis of the pleading of the parties:

          (i)      Whether the patient Archana Kalita Kakati was subjected to caesarean

section operation  at Chatribari Christian Hospital prior to EDD and without any necessity ?

          (ii)     Whether the patient was not properly treated at Nemcare Hospital ?    

(iii)    Whether there is deficiency in rendering medical treatment and care by Chatribari Christian Hospital and Nemcare Hospital ?

(iv)     Whether the complainant is entitled to compensation etc as prayed for ?

8.       The complainant No. 1 Apurba Kakati, examined himself as PW 1 and adduced evidence of PW 2 Amarjeet Kalita. The opposite party No. 4 Dr. Dolly Talukdar has also been adduced evidence.

9.       We have heard the argument placed by the learned counsel appearing for both parties and perused the entire evidence on record.

10.     Issue No. 1: The complainant PW 1 has alleged that his wife was carrying pregnancy and was examined by Dr. Dolly Talukdar, a Gynaecologist of Chatribari Christian Hospital from time to time. The doctor found everything normal during regular check-up. On 8-9-2011, he brought her wife Archana Kalita Kakati to the Hospital and Dr. Dolly Talukdar, on examination, advised her to be admitted to undergo cesarean on the same day. She was taken to operation theatre room at around 4 p.m. and at 9.30 p.m. she was shifted to Intensive Care Unit. The complainant was informed that a male child had been born.

10.     D.W. 1 Dr. Dolly Talukar in her evidence deposed that the patient (Archana Kalita Kakati) came to the hospital with a history of pain in abdomen since last  one day. On examination, D.W. 1 found that her vitals were stable and there was scar tenderness. She also found painful uterine constriction and that the patient was in early labour that there was risk of uterine rupture and hence she informed the attendant about the status of the patient and the risk involved. The patient was prepared for emergency LSCs and after taking consent, the operation started at 6.15 p.m. SA as given at 6.31 p.m. and a healthy male baby of 3 k.g. 268 gm was born.  P.W. 1 in his cross-examination has admitted that his wife was suffering from pain in abdomen and in emergent condition, she was admitted in the hospital. First baby was also born as a result of cesarean. It transpires from the evidence of PW 1 that at the time abdominal closure at about 7 p.m. the patient suddenly developed cardiac arrest and immediately CPR was given and the patient were intubated. The attendants of the patient were informed and explained regarding condition of the patient. Thereafter, the patient was shifted to CCU at around 9 p.m. where she was kept in ventilation. Patient was monitored by on duty doctors regularly in the CCU. But  the patient condition did not improve till morning. Since there was no cardiology back up in the hospital, the attendants were informed to remove the patient to a hospital having cardiac management. Accordingly, the patient was shifted to Nemcare Hospital in an ambulance arranged by Chatribari Christian Hospital. The baby was kept in children ward for proper neonatal care. The patient was admitted on 8-9-2011 and discharged on the next day i.e.9.9.2011.

11.     Admittedly, the patient was having in abdomen pain and under labour was admitted in the hospital. It was her second delivery and her first baby was born as a result of cesarean operation. There is nothing on record that she was unnecessarily subjected to cesarean operation. Therefore, the issue No. 1 is decided in negative against the complainants.

12.     Issue No. 2: The complainant No. 1 in his evidence has categorically stated that the patient was properly treated in the Nemcare Hospital and there is no allegation against Nemcare Hospital. The patient was shifted to GMCH due to financial constraint. This issue is accordingly decided in favour of the opposite party Nemcare Hospital and Dr. Ajit Kumar Deka.

13.     Issue No. 3: The complainant No. 1 in his evidence has alleged that condition of the patient was critical due to non-availability of machine which was supposed to be available in the hospital. He could not say which machine was supposed to be available in the hospital. He stated that Dr. Ajit Kumar Deka of Nemcare Hospital was of the opinion that the patient was provided with less quantity of oxygen and her health condition was not good due to wrong medical treatment. However, he did not examine Dr. Ajit Kumar Deka to substantiate his plea. Admittedly, the oxygen cylinder was provided in the operation theatre when the patient’s condition was critical. The doctors including Gynaecologist and Anaesthetist were present. The Chatribari Christian Hospital is a maternity hospital. Next day morning the patient was shifted to Nemcare Hospital in an ambulance arranged by the hospital itself. In the Nemcare Hospital, she was in ICU. She was in the Nemcare Hospital for sixteen days i.e. from 9-9-2011 to 24-9-2011. The complainant No. 1 has admitted in his cross-examination that she was taken proper care by the doctors and staffs of Nemcare Hospital. She was given adequate medical assistance. After few days, she was taken out of ventilation as her condition improved. Thereafter, the complainant No. 1 on his own request, removed her to Gauhati Medical College and Hospital. She was in the Gauhati Medical College and Hospital for thirty two days and thereafter she expired on 26-10-2011.

14.     PW 1 also admitted that at the time of admission he deposited Rs. 1000/- in the Chatribari Christian Hospital and the hospital authority stated that no money was required to be deposited at that point of time. He also admitted that after delivery of the baby, since his wife developed cardiac arrest, she was kept in ventilation by the hospital authorities immediately and that Christian Hospital is basically maternity hospital.  He also admitted that he did not know who provided oxygen to his wife and his allegation that the oxygen was provided by a ward boy is based on the information from doctor of Nemcare Hospital and GMCH. How can a doctor from Nemcare Hospital or GMCH give such information. Thus, the complainant No. 1 has brought wild allegation without any basis.

15.     The case of Jacob Mathew Vs State of Punjab (2005) 6 SCC followed in Punjab Vs Shiv Ram (2005) 7 SCC and C.P. Sree Kumar (Dr.) MS (ORTHO) Vs S. Ramanujan, it is observed  at para 30 that ;

          “33….A doctor, in essence, needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in. If the medical profession, as a whole, is hemmed in by threat of action, criminal and civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery. It is in this background that this court has cautioned that the setting in motion of the criminal law against the medical profession should be done cautiously and on the basis of reasonably sure grounds. In criminal prosecutions  or claims in tort, the burden always rests with the prosecution or the claimant. No doubt, in a given case, a doctor may be obliged to explain his conduct depending on the evidence adduced by the prosecution or by the claimant. The position does not change merely because of the caution advocated in Jacob Mathew in fixing liability for negligence, on doctors.”  

16.     In the case of Martin F. D’Souza Vs Mohd. Ishfaq (2009) 3 SCC 1, it has been observed in para 39 and 40 as under;-

          “ 39. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatments which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the doctor be held liable ? In our opinion he should not. Science advances by experimentation, but experiments sometimes end in failure e.g.  the operation on the Iranian twin sisters who were joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, in such cases, it is advisable for the doctor to explain the situation to the patient and take his written consent.’”

“40. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for                       medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.”

17.     In the instant case from the depositions, it cannot be said that the opposite parties were negligent. It may be very sad instance that the wife of the complainant No.1 died but it does not mean that the doctor or surgeon must be held guilty of negligence. The complainant has failed to prove any negligence on the part of the opposite parties. This issue is decided accordingly.

18.     Issue No. 4: In view of the discussion and decision of the foregoing issues, we find that the complaint filed by the complainants is liable to be dismissed and the complainants are not entitled to any relief. Accordingly, the complaint is dismissed and disposed of.