Date of filing :16.6.2017
Judgment : Dt.4.4.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Moumita Datta alleging medical negligence on the part of the opposite parties (referred as OP hereinafter) namely (1) Chittaranjan Seva Sadan and Sishu Sadan, represented by its Superintendent, 37, S.P. Mukherjee Road, Bhowanipore, Kolkata-700 025, (2) Prof. Sarmila Kundu (Professor), Chittaranjan Seva Sadan and Sishu Sadan, represented by its Superintendent, 37, S.P. Mukherjee Road, Bhowanipore, Kolkata-700 025, (3) Dr. Mihir Kumar Sarkar (Associate Professor), Chittaranjan Seva Sadan and Sishu Sadan, represented by its Superintendent, 37, S.P. Mukherjee Road, Bhowanipore, Kolkata-700 025, (4) Dr. Subhankar Dasgupta (Assistant Professor), Chittaranjan Seva Sadan and Sishu Sadan, represented by its Superintendent, 37, S.P. Mukherjee Road, Bhowanipore, Kolkata-700 025, (5) Dr. Sukriti Kundu, Medical Officer (Emergency Surgeon), Chittaranjan Seva Sadan and Sishu Sadan, represented by its Superintendent, 37, S.P. Mukherjee Road, Bhowanipore, Kolkata-700 025, (6) Dr. Trisha Dutta (Senior Resident), Chittaranjan Seva Sadan and Sishu Sadan, represented by its Superintendent, 37, S.P. Mukherjee Road, Bhowanipore, Kolkata-700 025, (7) dr. Biswanath Kundu (Junior Residenet), Chittaranjan Seva Sadan and Sishu Sadan, represented by its Superintendent, 37, S.P. Mukherjee Road, Bhowanipore, Kolkata-700 025, (8) Dr. Sashi Kumari (Junior Resident), Chittaranjan Seva Sadan and Sishu Sadan, represented by its Superintendent, 37, S.P. Mukherjee Road, Bhowanipore, Kolkata-700 025, (9) Dr. Shristi Bhattacharya (Junior Resident), Chittaranjan Seva Sadan and Sishu Sadan, represented by its Superintendent, 37, S.P. Mukherjee Road, Bhowanipore, Kolkata-700 025, and (10) Dr. Manjula Das (Anesthetist), Chittaranjan Seva Sadan and Sishu Sadan, represented by its Superintendent, 37, S.P. Mukherjee Road, Bhowanipore, Kolkata-700 025.
Case of the Complainant in brief is that having conceived for 2nd time, the Complainant was very much cautious regarding her health since her first issue died in a precarious manner. The Complainant has stated she along with her family members decided for antenatal check up under any Govt. Hospital and as such having had registered her name by paying Rs.2/- as OPD patient on 9.10.2015 she received treatment at the OPD of respondent No.1 by a panel constituted of four doctors namely (1) Prof. Sharmila Kundu, (2) (Prof.) Dr. Mikhir Kumar Sarkar (Associate Professor), (3) Dr. Subhankar Dasgupta (Asst. Professor) and (4) Dr. Manik Mani (Asst. Professor) for antenatal check up and necessary treatment and subsequently visited the said hospital on 11.12.2015, 8.1.2016 & 12.2.2016 for her treatment and stuck to the advice given by the treating Doctors.
It is further stated by the Complainant that on 12.2.2016 as per advice of the Doctor she was admitted to the OP No.1 Hospital and thereafter on 13.2.2016 as per advice of the Doctors i.e. OP Nos.2, 3 & 4 herein the Complainant had undergone an USG done at OP no.1 Hospital and thereafter she was advised to watch for foetal movement count. It is further stated by the Complainant on 14.2.2016 at about 4 a.m. her labour pain started and as such she was examined by the on duty doctors i.e. the OP Nos.5, 7, 8 & 9 under observation of whom she was taken into labour room. Subsequently, at about 8.30 a.m. on 14.2.2016 the respondent Nos.5, 7, 8 & 9 decided for emergency caesarian section operation and informed the family members of the Complainant that the baby at womb had developed respiratory problem hence immediate operation was required. The family members of the Complainant gave consent in writing for the said caesarian operation. It is also stated by the Complainant that she was taken into the operation theatre at about 11 a.m. and having had undergone caesarian operation she was informed at about 11.30 a.m. that she gave birth to a still-born baby. The Complainant and his family members on query came to know from the OP Nos.5, 7, 8 & 9 that due to late arrival of the anesthetist i.e. the OP No.10 herein the caesarian operation/delivery could not be done in time and as a result, a still born baby was delivered. It is stated by the Complainant that the Complainant through her Ld. Advocate wrote a letter to the State Public Information Officer/ Superintendent of Chittaranjan Seva Sadan and Sishu Sadan under RTI Act, wherefrom it has been revealed that the caesarian operation was conducted at a very belated stage as no anaesthesist available in the OT and it was also revealed from the said report that on duty anaesthesist Dr. Manjula Das did not arrive at OT although she was informed over phone at 8.17 a.m. and Dr. Manjula Das arrived at Hospital at about 10.15 a.m. and a still born baby was delivered at 11.16a.m. According to the Complainant that the entire incident reveals that the OP Hospital and Doctors were apathetic, negligent and deficient in rendering service to the Complainant and, therefore, they are liable and responsible for deficiency in service as their reckless and negligent attitude has caused irrepairable loss to the Complainant. Accordingly, the Complainant has prayed for direction upon the OPs to pay Rs.10,00,000/- for loss of child, Rs.5,00,000/- for compensation due to mental agony and suffering and Rs.20,000/- towards cost of litigation.
Notices were served but the OPs did not turn up and, therefore, vide order No.11 dt.21.2.2018 the case was fixed for ex-parte hearing.
The Complainant has adduced affidavit-in-chief and OPD patient card dt.9.10.2015, 13.11.2015, 11.12.2015, 8.1.2016, 12.2.2016 issued by Chittaranjan Seva Sadan & Shishu Sadar, Govt. of West Bengal, letter dt.1.3.2017 issued by Head of the Department Gynae & Obstetrics to the Principal, Chittaranjan Seva Sadan College of Obstetrics, Gynae & Child Health, letter dt.8.2.2017 issued by Advocate to the State Public Information Officer, letter dt.20.2.2017 issued by Prof Sharmila Kundu, Dr. Mihir Kumar Sarkar & Dr. Subhankar Dasguta, Discharge Certificate dt.20.2.2016.
Points for determination-
- Whether there is deficiency as well as negligence on the part of the OPs in providing medical treatment.
- Whether the Complainant is entitled to get the relief as prayed for.
Decision with reasons
Both points are taken up together or comprehensive discussion and decisions.
The Complainant claimed to have herself registered as OPD Patient in the OP No.1 hospital and received antenatal treatment therefrom on 7.10.2015 Copies of OPD Patient Card supports such claims made by the Complainant. The Complainant further stated that on 12.02.2016 she had been admitted to the OP No.1 Hospital and on 13.02.2016 she was advised for daily foetal movement count and on 14.02.2016 she was taken to the Operation Theatre where she delivered a still born male baby at 11.30 a.m., Copy of Discharge Certificate supports such contention of the Complainant. The specific allegation made by the Complainant that her labour pain was started at 4 a.m. and as such she was taken to the treating doctors who decided to take her to the O.T. and she was taken to O.T. at 11 a.m. and she was informed that she had delivered a still born male baby and subsequently her family members came to know from the OP Nos.5, 7, 8 & 9 that late arrival of anesthetist caused belated delivery resultant effect of which her baby in womb had died.
In this regard, the Complainant has further stated that as the entire report about the process of delivery was not available the Complainant through her Ld. Advocate wrote a letter dt.8.2.2017 to the State Public Information Officer/ Superintendent of Chittaranjan Seva Sadan & Shishu Sadan seeking information under the RTI Act and received reply from the said authority wherefrom it was revealed that the caesarian operation was conducted at a very belated stage since no anesthetist was available in O.T. and the on-duty anaesthetist who was supposed to be present there was found absent at the pertinent time since the on duty anesthetist Dr. Manjula Das had not arrived at O.T. in time although she was informed over phone at 8.17 a.m., and, ultimately she arrived at hospital at about 10.15 a.m. and a still born baby was delivered at 11.16 a.m. on 14.2.2016. It appears from a letter dt.20.2.2017 from Prof. Sharmila Kundu, Dr. Mihir Kumar Sarkar and Dr. Subhankar Dasgupta to the Head of the Department of Gynaecology and obstetrics, Chittaranjan Seva Sadan, Kolkata, Re : Information regarding treatment of Smt. Moumita Datta (reference : letter of Ms. Rama Acharya dt.8.2.2017) which contained the information in paragraphs 3 & 4 of the body of the letter as “as per BHT that on 14.2.2016 at 4 a.m. (night LR duty of Unit-I), the patient Moumita Datta entered into the labour room with complain of pain abdomen and was examined by on duty JRs, (Unit-I) and on duty Emergency Surgeon (ES), Dr. Sukriti Kundu. At that time B.P. was 130/90 mm Hg, FHR was regular (130 bpm), P/V finding shows Os/Parous, Show+, Stn – high up (patient in early labour). She was advised analgesic (inj. Tramadol) and Antiematic (Inj Metoclopramide and inj. Ondansetron) at Labour Room. She was kept and monitored in LR. She developed FHR abnormality (FHR-120/min) from 7.30a.m. The case was then seen by Dr. Sukriti Kundu on duty ES of Sunday (admission day of Unit-I), who advised her for left lateral position, moist O2 inhalation and CTG monitoring and ultimately at 8.10a.m. she took decision for emergency caesarian section for foetal distress. But the operation could not be started at that time as no anesthetist was available in OT and on duty anesthetist Dr. Manjula Das had not arrived at OT although she was informed over phone at 8.17 a.m. The patient received inj. Hydrocortesone-200mg IV at 10 a.m. for shivering.
As per BHT (Anaesthetic note), Dr. Manjula Das arrived at Hospital at about 10.15 a.m. Under Spinal anaesthesia caesarian section was done and the baby was delivered on 14.2.2016 at 11.16 a.m. It was a still born male baby of B.Wt.-2.6 kg with thick meconium stained liquor.
Although the Complainant has not sought any expert opinion to prove her allegation but the letter received in reply of the query for information under RTI Act is self explaining and the same is written by the team of Doctors who have provided medical treatment to the Complainant and whose opinion can be considered as expert opinion. It is crystal clear from the said letter dt.20.2.2017 that on duty Emergency Surgeon decided for emergency caesarian section for foetal distress at 8.10 a.m. but the necessary operation has not been done due to absence of anesthetist. Ultimately at 11.16 a.m. the baby was delivered in still born condition with thick meconicum stained liquor which clearly indicates extreme distress of foetus due to which it died and as such we can safely conclude that the same has been happened due to extremely belated surgery.
It is evident that team of Doctors was ready for operating caesarian section but the same has not been done in time due to late arrival of anesthetist who is held liable for providing medical treatment in negligent manner due to which the foetus died in distress.
However, the required treatment was started in time and the on duty E.S. decided for emergency caesarian section but the whole arrangement proved futile due to non-availability of anesthetist. Had there a stop gap anaesthetist the said caesarian section would have been done in time and the baby could survive. In this regard, we are of opinion that the OP Hospital ought to have arranged for proper stop gap provision since the same is related to life of death question of the patient under treatment when a new born arrives at a family it brings extreme joy and new hope to the family specially to its parents for a better future since in old age parents become dependent on their son/daughter. However, in the instant case the Complainant has been deprived of having such joy and hope due to negligent act on the part of the OP No.1 and OP No.10.
Under such state of affairs, we think that the unfortunate Complainant should be compensated by the OP No.1 and OP No.10.
According to our assessment, it will be just and proper if the OP Hospital pays for Rs.1,00,000/- and OP No.10, Dr. Manjula Das, pays Rs.10,00,000/- to the Complainant towards compensation.
Point Nos.1 & 2 are decided accordingly.
In the result, the Consumer Complainant succeeds in part.
Hence,
ordered
That CC/318/2017 and the same is allowed in part ex-parte with cost against OP No.1 and OP No.10 and dismissed ex-parte against rest OPs without cost.
The OP No.1 is directed to pay Rs.1,00,000/- to the Complainant and the OP No.10 is directed to pay Rs.10,00,000/- to the Complainant within one month from the date of communication of this order to the OP No.1 and OP No.10.
The OP No.1 and OP No.10 are further directed to pay Rs.10,000/- towards cost of litigation jointly and severally within aforesaid period failing which the amount payable towards compensation will carry interest @ 9% p.a. for the default period.
