BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No. 97/2009
Present: Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.) -President
Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
Shri Tutumoni Deva Goswami, B.A.L.L.B. - Member
Miss Krishnamoni Phukan - Complainant
D/O- Late Indra Phukan
R/O – Dwaraka Nagar, Hem Baruah Path, Dispur
P.O. & P.S.Guwahati-6.Dist.Kamrup(M),Assam
-vs-
1.Down Town Hospital Pvt.Ltd., - Opposite parties
G.S.Road,Dispur
Guwahati-781006
2. The Managing Director
Down Town Hospital Pvt.Ltd.,
G.S.Road,Dispur
Guwahati-781006.
3.Dr.Suranjit Baruah, MD
Down Town Hospital Pvt.Ltd.,
G.S.Road,Dispur
Guwahati-781006
4. Dr.P.K.Choudhury, MD
Down Town Hospital Pvt.Ltd.,
G.S.Road,Dispur
Guwahati-781006
5.Dr.Tridip Sarma, MD
Down Town Hospital Pvt.Ltd.,
G.S.Road,Dispur
Guwahati-781006
Appearance:
For the complainant Sri S.D.Purkayastha ,Sri U.Choudhury, Ms.S.Phukan Learned advocate .
For the Opp.partties Sri Manjit Chetia, Sri Deepjyoti Barman Learned advocate .
Date of filing written argument:- 24.9.2018
Date of oral argument:- 6.12.21 , 23.12.21
Date of judgment: - 28.1.2022
JUDGMENT
1) This is a complaint filed by one Miss Krishnamoni Phukan u/s 12 & 13 of the Consumer Protection Act,1086 against Down Town Hospital Pvt.Ltd., The Managing Director, Down Town Hospital Pvt. Ltd., Dr.Suranjit Baruah, MD, Down Town Hospital Pvt.Ltd., Dr.P.K.Choudhury, MD, Down Town Hospital Pvt.Ltd., and Dr.Tridip Sarma, MD, Down Town Hospital Pvt.Ltd., alleging inter-alia with Respondent No.1 is a renowned Hospital which has been under the control of opp.party No.2 and opp.party No.3, 4 & 5 are the doctors appointed by the opp.party No.1 as specialist to look after the patient in the hospital.
2) The present complaint has filed for unfair-trade-practice and negligence and deficiency in service on the part of the opp.parties due to which father of the complainant Indra Phukan died on 17.4.2009 while under treatment under the respondents. The complainant submits that she has been suffered huge financial loss for payment exorbitant bill against treatment of her deceased father. The complainant being a consumer u/s 2(d) of the Act of 1986 seeks redressal of the grievances against the negligence and deficiency in service caused by the opp.party No. 1,2 & 3 leading to death of the complainant’s father .
3) The brief history narrated by the complainant in the complaint petition about the treatment are in the following order and have been picked up from the complaint petition for reference in the discussion chronologically.
I) On 25.3.09 and 26.3.09 the patient complainant about acidity and Hic-up. Blood test was done at home by East India H.R.C.Rajgorh and found Na and K (Sodium & Potassium) deficiency. Immediately, the respondent No. 3 Dr.Suranjit Baruah was contacted over telephone and he suggested admitting the patient in the Down Town Hospital , the respondent No. 1. Accordingly, the patient was admitted in Down Town Hospital at 10.00 P.M. in the Emergency Ward. But Surprisingly the respondent No. 3 was not available in the hospital and only a junior doctor was available who could not even speak Assamese language properly due to which interaction with him was very difficult. Be that as it may , preliminary investigation over the condition of the patient was done and everything was found normal such as Blood Pressure , Heart Beat, Oxygen Rate, X-Ray of Chest etc. Thereafter , more surprisingly, when everything was found normal, the patient was shifted from Emergency to the Semi ICU on the pretext of treatment of Na & K deficiency.
II) On 27.3.09 in the morning , the patient complained about non-availability of nurse in the Semi-ICU in the previous night as only one nurse was available for two ICUs situated adjacent . He further complained that his hands and legs were tied due to which he had to call the nurse for urination but on the previous night even after calling the nurse for numerous times the nurse was not available and the patient had to urinate in the bed itself which was cleaned in the next morning. The patient was kept in the Semi ICU that night too.
III) On 28.3.09 everything was found normal and as such the patient was shifted to Cabin No. 1418 of the hospital.
IV) On 29.3.09 in the morning respondent No. 3 came to see the patient and advised to give raw salt with every meal. In the afternoon, the patient developed cough and complained that he cannot swallow raw salt due to cough. The complainant contacted the respondent No. 3 over telephone and he insisted to keep on giving raw salt.
V) On 30.3.09 the condition of the patient deteriorated heavily and the patient was coughing the whole day due to which the patient suffered very much. But no doctor was available in the hospital to look after in the entire day and night . The patient spent a sleepless night .
VI) On 31.3.09 in the morning respondent No. 3 came to see the patient and again advised to give raw salt with every meal and reported that everything was normal . But in the daytime , it was noticed that the patient was having breathing problem and the tip of his fingers and toes were becoming blackish. Immediately, the respondent No. 3 was contacted over telephone and he refused to come to see the patient on the plea that he was in his private chamber. In the meantime , another serious problem was notice that the oxygen pipes in the patient’s cabin was leaking heavily, and having found nobody to take care, the complainant herself with the help of a sweeper boy present there shifted the patient to another cabin No. 1418 which was vacant at that point of time. It was in the evening that one resident doctor namely Dr.Samitav Baruah visited the patient and immediately he himself contacted the respondent No. 3 . By that time the condition of the patient deteriorated heavily and then the respondent No. 3 came to see the patient . On examination, everything was found abnormal and lung infection developed and thereafter . the patient was shifted to the ICU immediately.
VII) On 1.4.09 the patient was kept in the ICU with oxygen mask, but no special care was taken or even monitoring regularly. Lung infection continued.
VIII) On 2.4.09 the patient complained that he was feeling cold in the ICU without proper care and no blanket was provided inspite of several requests.
IX) On 3.4.09 the patient was shifted from the ICU to the cabin with oxygen mask where his condition deteriorated further , but still the respondent No.3 was hard to find to see the patient. At the instruction of the respondent No.3 and the resident doctor, the patient was fed forcefully due to which food entered into his lung and the condition further deteriorated.
X) On 4.4.09 the respondent No. 3 was out of station and there was no doctor in the hospital to look after the patient except one junior doctor who advised to shift the patient to the ICU where everything was found abnormal. Another doctor present there in the ICU to visit another patient checked up the patient and advised to put the
patient under ventilator and accordingly the patient was put under ventilator. Till then the respondent No. 3 was not seen in the hospital. XI) On 5.4.09 the patient remained in ICU with ventilation.
XII) On 7.4.09 released from ventilation but oxygen pipe remained . There was no improvement in the condition of the patient and inspite of that no care was taken by any of the respondent.
XIII) From 8.4.09 to 14.4.09 oxygen pipe continued.
XIV) On 15.4.09 oxygen pipe was removed for few hours and on examination everything was found abnormal. On 16.4.09 the condition of the patient deteriorated .
XV) On 17.4.09 in the evening everything was found normal as per the readings of the monitor and therefore the complainant went to home but after some time a nurse from the hospital rang up the complainant over telephone and informed that the patient is no more. Immediately the complainant rushed to the hospital and the respondent No. 3 was contacted and the respondent No. 3 replied that he had a weal lung, aged person and two years back he had pneumonia. The patient died not due to the reasons stated by the respondent no. 3 , but out of sheer negligence and want of proper care and deficiency in service in the hospital .
4) Having such circumstances as alleged prevailing with the father of the complainant it is alleged that after death of her father on 17.4.09 she was served with a bill amounting to Rs. 1,84,421/- against treatment of 23 days hospitalization which according to the complainant is exorbitant . Besides their allegation complainant alleged that the respondent No. 3 was never found in the hospital inspite of several request over telephone and hospital authority did not make any arrangement for proper care and monitoring of the patient for which the patient developed lung infection. It is further stated that patient was admitted in the hospital for treatment of deficiency in sodium and potassium in the body and there was every likelihood of developing infection which was well known to the hospital authority. But no extra care has been taken and therefore it is alleged that there is a gross negligence and dereliction of duty want of proper treatment and deficiency in service on the part of the respondents. It is further alleged that complainant was harass by extra medicine amounting to Rs. 63,718/- with miscellaneous cost amounting to Rs. 18,133/- during the hospital which have caused financial hard-ship to the complainant . It is further submitted in the complaint petition that patient was put under ventilator even though there was no such requirement. In this way the complainant made a claim of Rs. 8,66,272/- for deficiency in service , mental agony and harassment etc. The complainant with her complaint attached all the documents in support of her claims as to the purchase of medicines payment of bills etc.
5) After receipt of the notice the opp.party appeared contested the proceeding and filed written statement. Opp.party N. 1 ,2 & 3 filed their written statement jointly and opp.party no. 4 & 5 submitted their w.s. separately denying all the allegations . The gist of the pleading of the opp.parties in the written statement is as follows—
The complaint is barred by limitation and there is no cause of action for which petition is labile to be dismissed. Further it is submitted that this commission have no territorial jurisdiction to adjudicate the dispute and complainant is not a consumer within the meaning of the Consumer Protection Act,1986.
- The salient point raised in the written statement is that
complainant is not the only surviving legal heir of Lt.Indra Phukan (patient) and the wife of the patient is still surviving along with another surviving daughter . therefore there are 2 other surviving class I heirs who had not approach this forum. The another contention made in the written statement is that complainant have suppressing the fact that patient in the year 2007 had been admitted in the respondent opp.party No. 1 hospital and was diagnosed with Pneumonia and anemia . The patient was a hypertensive and was admitted on 13.2.2007 with complaints of weakness for 1 month, nausea for 7 days and cough for expectoration for 7 days and had been treated by the respondents/opp.aprty No.3. Patient was released on 22.7.2007 with specific advice to take necessary follow up treatment. Thereafter no treatment was done by the patient either with the opp.aprty No.3 or any other doctor. It is submitted in the written statement that patient had been under-going treatment with some other doctor and visited Dr.Brajendra Lahkar vide his prescription with 25.9.2008 and advised the patient a tablet namely “Tozaar –H” for controlling the blood pressure and had further advised that he should regularly check his sodium level in his blood. The echo cardiography test was done on 23.5.2008 which shows that patient had chronic heard problem. It is submitted that the original prescription dtd. 25.9.08 and report dtd.23.5.08 are not in the possession in the respondent and these documents need to be call for the possession of the complainant . But these were submitted in the hospital with the photo copies at the time of admission of the patient .
7) It is again submitted that after the advice dtd. 25.9.2008 the patient had not check the sodium level in the blood and it was revealed when carried out investigation at the time of admission of the patient in March ,2009. It is therefore, submitted by the opp.aprty that there was a contributory negligence on the part of the patient as well as the complainant in ignoring the advice given by the doctor and had now come up with an absolute false and baseless allegation. It is further submitted in the written statement is that there is no negligence or deficiency of service on the part of answering op.parties . The patient was given all necessary medical care and treatment and present complaint is nothing , but an abuse of the process of the court with an intention to harass the respondents . In this way the opp.party denied all the allegations made in the complaint petition and further denied that complainant is a consumer u/s 2(d) of the Consumer Protection Act,1986.
8) The opp.party again submits that they had no knowledge about complaints made by the patient on 25.3.2009 and narrated the incident what had happened on 26.3.2009 and thereafter with details as mentioned in the written statement as follows-
9) Early morning on 26.3.2009, a colleague of the respondent/opp.aprty No. 3 viz.Dr.Nilakshi Phukan, who is a consultant Gynecologist in the respondent/op.party No. 1 Hospital contacted the respondent/opp.pary No.3 over telephone asking about the medication for hiccup, vomiting tendency, abdominal distension etc. for her uncle. The respondent/opp.party No. 3 asked Dr.Phukan as to whether some doctor had physically examined her uncle or not, as some investigations may be necessary as the symptoms may be the manifestation of some serious ailment .During the entire day, the respondent/opp.party No.3 did not receive any call either from Dr.Phukan or the family members of the patient . The patient was not even brought to the outpatients department (OPD) of the respondent hospital. It may be mentioned that the respondent/opp.party No. 3 sits in the respondent/opp.party No.1 hospital till about 2 p.m. and is readily available till such time. At about 9/30 p.m. the respondent/opp.party No.3 received another phone call from Dr.Phukan whereby he was informed that during the day, her uncle had undergone some blood tests and the reports of the same were read out to the respondent/opp.party No. 3 over phone. The report of the blood test showed severe electrolyte imbalance viz. severe low levels of sodium and potassium. The respondent/opp.party No.3 informed Dr.Phukan that such law levels of sodium and potassium was a serious ailment and instead of discussion the matter over telephone, the patient should be immediately hospitalized for evaluation and correction of the cause of the electrolyte imbalance.
10) However the respondent/opp.party No.3 categorically states that he never suggested to Dr.Phukan that the patient should be brought to the respondent/ opp.party No.1 hospital. Further , Dr. Phukan had also not requested or asked the answering the respondent No.3 that he should personally come and see her uncle and therefore there is no question of the answering respondent no. 3 giving any assurance or stating that he would come to see the patient. It was about 9-30 p.m., and the respondent/opp.party No.3 was not on duty. Therefore, the allegation that the respondent/opp.party No. 3 suggested that the patient should be brought to the respondent/opp.party No.1 hospital is absolutely incorrect and categorically denied. The patient was hospitalized at about 10 p.m. and the doctors in the emergency ward after taking the history of the patient admitted him and started necessary treatment. It appears from the record that at the time of admission , the patient had complained of hiccup, vomiting and productive cough and abdominal discomfort. With regard to statement that “surprisingly the respondent No. 3 was not present in the hospital.” The answering respondents stated that there is no question of the respondent/opp.party No. 3 being present in the respondent/opp.party No.1 hospital at 10 p.m. since he had no duty at that time. A doctor is not required to stay in the hospital for 24 hours in a day. Duty hours are assigned to each and every doctor and it is as per the said duty hours that the doctors stay in the hospital. The respondent/opp.party No.1 hospital has a team of competent doctors who look after the patients. At the time when the patient was admitted, a team of doctors was present in the hospital and they had taken the necessary care and had started adequate treatment of the patient, which is clearly evident from the records.
11) There was no question of the respondent/opp.party No. 3 being present at the time when the patient was admitted as the respondent/opp.party No.3 was never informed that the patient was being admitted in the respondent/opp.party No.1 hospital. The statement that the junior doctor who attended the patient could not even speak any language is absolutely absurd and are categorically denied by the answering t respondent/opp.parties. The attending doctor was fluent in English and the complainant herself is a lawyer and for her to say that interaction with the doctor was very difficult is inconceivable and is categorically denied. The said statement is, on the face of it is incorrect and has been made with the sole intention of misleading this Hon’ble Court and thereby seeking to make wrongful gain. It is denied that al preliminary investigation done on the patient was found normal , as has been alleged. The blood report done on the same day in some other laboratory showed very low level of sodium, which is not a minor problem, as has been sought to be made out by the complainant , who is by no means a doctor or an expert on the subject. The X –ray report, which has been enclosed with the complaint showed a very poor condition of the lungs of the patient. The X-ray report showed that there were signs of chronic long standing lung problem. The report that the lung appeared to be voluminous signified chronic emphysema , which is an irreversible condition signifying the damage of the lungs. The finding of haziness and fibrosis signifies chronic destruction of the area of the lung which may be due to some infection. The finding the cardiac diameter was increased , showed that the heart was already enlarged due to pre-existing problems.
12) Therefore, the patient was rightly shifted to the semi I.C.U. as the patient had some pre-existing disease/condition, which required due and proper care for which shifting the patient to the semi I.C.U. was necessary. Since the patient was presented with productive court, with other complaints it means that the lung infection had started prior to hospitalization. Further , low levels of sodium and potassium often causes confusion, disorientation, convulsion and even lead a patient to coma and therefore the doctor in the emergency ward rightly shifted the patient to the semi I.C.U.
13) On 27.3.2009 the allegation of non-availability of nurse in semi I.C.U is absolutely incorrect and is categorically denied. The nurse patient ratio in the semi I.C.U. is 1:1 and therefore the question of non-availability of nurse does not arise at all. Early morning at about 8 a.m. the opp.party No. 3 came and examined the patient and found Respiratory track Infection, recurrent vomiting due to probably low sodium and low potassium level. On seeing the patient the opp.party No.3 recognized his face and hea was the same person who in 2007 had undergone treatment for severe pneumonia in the opp.party hospital and it was the opp.party No.3 who had saved his life in 2007. However , no follow up treatment was done since 2007. On taking the history of the patient, a prescription dtd. 25.9.09 (Annexure A) was shown where another doctor had advised Tozaar-H, a medicine for hypertension , which may cause the levels of Sodium in the blood to go down and accordingly it was advised that the patient should regularly monitor the sodium levels in the blood.
14) However, to the utter surprise of opp.party No.3 , it was informed that the patient had not checked his sodium level since the advise given by the other doctor. Hence, it was a clear case of negligence on the part of the patient and the other family members of the patient including the complainant . Be that as it may, the op.party No.3 advised to regularly check the sodium and potassium level in the blood and also to take extra salt with his food. On the same day other doctor of the opp.party hospital also advised the same treatment. In the evening the opp.party No.3 once again visited the patient and he was informed about the levels of the sodium and potassium in the blood which was 118 and 3 respectively (normal level of sodium 137 -145 and that of potassium is 3.6 – 5.1), which was still less.
15) Accordingly, the opp.party No. 3 advised a sodium chloride saline dip and potassium chloride injection . It was further advised that the patient be given extra salt with food or salted food. It may further be mentioned that the blood report dtd. 27.3.09 done in the opp.party hospital showed a very high WBC count, which meant that there was an underlying infection, which was pre –existing and on 28.3.09 the sodium level had increased to 127 and the potassium level was 2.9. Accordingly, the patient was shifted from the semi I.C.U.to a private cabin.
16) It is categorically denied that in the morning of 29.3.09 the opp.party no. 3 advised that the patient be given “raw salt”. In fact what was advised to give the patient extra salt with his food or salted food and such treatment was continuing since 27.3.09 itself, inside the semi I.C.U. No. first advise was given on 29.3.09. The statement that the patient could not swallow “raw salt” due to cough is inconceivable. The answering opp.parties have failed to understand the above allegation made by the complainant inasmuch as, no doctor would advise that patient should be given spoonfuls of salt. Extra salt with food means that in addition to the salt given in the cooked food, the patient should take some extra salt with the food and that was exactly what was advised and being done in the hospital. The complainant is a well educated lady, In fact a practicing advocate and if on the advise of giving extra salt with the food, she had tried to make the patient eat spoonful of salt then the same is very unfortunate and the answering opp.parties are not responsible for the same .
17) The statement that even after being contacted over phone and informed that the patient was unable to swallow “raw salt”, the opp.party no. 3 insisted on giving the raw salt is absolutely incorrected and is categorically denied by the opp.parties. The opp.party no. 3 or any other doctor of the opp.party hospital was ever informed that the complainant had been giving spoonfuls of salt. There is no question of the patient not being able to take extra salt with food and the statements made by the complainant are absolutely incorrect and made with the sole intention of misleading this Hon’ble court. Giving extra salt with food is the normal course of treatment, which is followed in treating a patient with law levels of sodium.
18) The allegation that there was no doctor available in the hospital to look after the patient on 30.3.2009, for which the patient spent a sleepless night is absolutely incorrect and is categorically denied by the answering opp.parties. The opp.party No.3 had twice visited the patient on 30.3.09 once in the morning and again in the afternoon. Thereafter, in the evening 2 senior doctors, both MD in medicine and specialists in the field of medicine, had duly visited the patient and examined him and the allegation of no doctors visited the patient on 30.3.09 is false to be knowledge of the complainant.
19) In the morning on 31.3.2009 at about 8.40 a.m., the opp.party No.3 visited the patient and advised to continue the same treatment. The opp.party No. 3 again visited the patient at about 2-30 p.m. and there was no change in the condition and accordingly the same treatment was advised to be continued. It may be mentioned that the duty hours of the opp.party No.3 in the opp.party hospital is till 2 p.m. and the opp.partry No. 3 leaves the hospital thereafter. The opp.party hospital has a team of well trained and competent doctors who look after the patients as a team. Different duty hours are assigned to the various doctors and specialist doctors of all disciplines are present in the hospital at all times to deal with any emergency or any emergent situation. It is the normal practice that in case of any requirement of the patient or the attendant and /or in an emergency, the patient or the attendant informs the on duty nurse, who in turn informs the on duty doctor or the resident doctor. In an emergency, the resident doctor thereafter informs the emergency team and the consultant doctor.
20) Since , it is not possible for a doctor to be present in the hospital at all times, the team of doctors on duty deal with the emergent situation even before the concerned consultant doctor arrives. When the complainant/attendant of the patient contacted the opp.party No.3 over phone , the opp.party No 3 was not in the hospital and therefore advised that the emergency team should be immediately informed as it would take time for the opp.party No. 3 to arrive at the hospital. It is categorically denied that the opp.party No.3 had refused to come to see the patient on the plea that he was in his private chamber, as has been alleged.
21) In fact the opp.party No. 3 had duly advised the complainant to contact Dr.Sumitav Baruah, MD , medicine who was on duty at that time. The opp.party No. 3 had personally informed Dr.Baruah to deal with the emergency and accordingly Dr.Baruah dealt with the situation. On receiving the information of the patient, the opp.party No. 3 rushed to the hospital and after examining the patient in the cabin, shifted him to the I.C.U. and thereafter the opp.party also attended the patient in the I.C.U. and took necessary follow up action. 22) The allegation that the oxygen pipes in the patient’s cabin was leaking heavily and no one was there to take care of the same is not at all correct and is categorically denied by the answering opp.parties. The patient was having breathing difficulty and the complainant panicked and must have tried to do something to the knobs of the oxygen pipe, because when the pipes were checked by the technicians no leakage or any abnormality was found and everything was in order. The patient had developed respiratory distress in the evening and accordingly he was shifted to the I.C. U. on the advice of the attending doctors.
23) The opp.party No. 3 examined the patient at about 8.15 p.m., after he arrives at the hospital on being informed about the patient’s condition and again examined the patient inside the I.C.U. at around 8.40 p.m. and again at about 9 p.m. and advised to take the opinion of the opp.party No.s 4 & 5 . The condition of the patient had marginally improved during the night.
24) On 1.4.09 the opp.party No.3 visited the patient in the morning and after duly examining him found his condition to be better than the previous evening. The answering opp.parties categorically deny that no care was taken and the patient was not even monitored regularly in the I.C.U. .The patient was regularly monitored in the I.C.U. by all the I.C.U. doctors as well as the opp.party No. 3. The condition plan of treatment was discussed with the attendants of the patient including the patient’s niece, who is a consultant gynecologist of the opp.party No,1 hospital.
25) The allegation on 2.4.09 that the patient was not provided with a blanket inside the I.C.U. when he was feeling cold is absolutely incorrect, not believable and is categorically denied by the answering op.parties. Such baseless allegation have been made with the sole intention of misleading this Hon’ble Court. The allegation is ridiculous and such things never happen in the opp.party No. 1 hospital and the question of no providing blanket to the patient does not arise at all. The op.party No.3 as well as the other doctors of the hospital regularly examined the patient inside the I.C.U. In fact the opp.party No.3 exmained the patient, once in the morning and again in the evening.
26) On 3.4.09 the opp.party No. 3 examined the patient in the morning and found him to be stable. Accordingly, the opp.party No.3 advised for shifting the patient to the cabin if agreed by the opp.arty No. 4 & 5. The opp.party No.4 and 5 having agreed , the patient was shifted to the cabin. After shifting , the opp.party No.3 again visited the patient in the cabin and the patient was found to be stable. The allegation that the opp.party No.3 was hard to find to see the patient, is absolutely incorrect, false to the knowledge of the complainant and is categorically denied by the answering opp.parties . The allegation that the patient was fed forcefully , on the advice of the opp.party No.3 and the resident doctor, is absolutely incorrect and is categorically denied by the answering opp.parties. The opp.party No. 3 as well as the other doctors had advised to encourage oral feeding as the nutritional condition of the patient was very poor and alternative intravenous nutritional supplement could not be given after a certain extent m due to his poor lung condition.
27) The opp.party No. 3 has a scheduled duty on every 1st and 3rd Saturday of the month in Down Town Diagnostic Centre, Shillong . 4.4.2009 being the 1st Saturday of the month the the opp.party No. 3 was scheduled to go to Shillong. Normally the team leaves for Shillong at around 9 a.m. Prior to that, the op.party No.3 visited the patient and found him to be stable. Since the opp.party No.3 was leaving for shilling he duly informed the attendant of the patient and the other consultants of the hospital to look after the patient during his absence. Thereafter , 2 other consultant s examined the patient and found him to be stable. As stated earlier , the patient was advised to take food orally. On 4.4.2009 the complainant or some other attendants of the patient, contrary to the advice of the doctors, tried to forcefully feed the patient, as a result of which , unfortunately, the patient aspirated. Seeing the breathing difficulty being faced by the patient the doctors immediately shifted the patient to the I.C.U. In the I.C.U it was found that the patient was not maintaining oxygen saturation and accordingly the patient was connected to the ventilator, in order to improve the lung functions. It may be mentioned that prior to putting the patient in the ventilator, due consent of the attendant present at that time was taken. The patient was shifted to the I.C.U. at around 2.30 p.m. After returning from Shillong in the evening , the opp.party No. 3 at about 7.45 p.m. visited the patient in the I.C.U. The patient had pneumonia due to aspiration and accordingly treatment for the same was started.
28) On 5.4.09 the patient continued to remain on ventilation and doctors of the I.C.U. the opp.party No.s 3,4 & 5 continued to monitor the progress of the patient.
29) On 7.4.2009, the oxygen saturation had improved and accordingly the ventilator was disconnected. It may be mentioned that a patient who is put in the ventilator, cannot be removed or disconnected from the ventilator instantly. It is a gradual process where the support on the ventilator is gradually lessened and the patient is monitored. If the patient is able to maintain with minimal ventilator support, the ventilator support is gradually removed. There was no improvement in the sensorium i.e. the senses and response of the patient. The patient was not responding to the normal instructions given by the doctors to check the sensorium of the patient . The patient had to be kept on an Endotracheal tube, which tube is put so that the air passage is not blocked and other secretions from the mouth cannot enter into the lung. The answering opp.parties categorically deny the statement that no care was taken by the respondents inside the I.C.U.
30) The answering op.parties had ensured due and proper care of the patient in the I.C.U. and on 8.4.2009 to 14.4.2009 the patient continued to remain in the I.C.U, but was off the ventilator. His oxygen supply continued and the patient was with Endotracheal tube. However , the patient did not show any improvement and accordingly the treatment continued. The attendants of the patient including the complainant refused the advice of a C.T.Scan of the brain, which would have given a better picture of the status of the brain of the patient. Neurological opinion was taken on 12.4.2009 as the brain function of the patient was not improving.
31) On 15.4.2009 to 16.4.2009 the Endotracheal intubation had continued for about 10 days and the patient required tracheotomy . The pipe was removed on 16.4.2009 and not on 15.4.2009 , as stated by the complainant . Since the Endotracheal tube had also been inserted for more than 10 days the patient was in need of tracheotomy after removal of the Endotracheal tube. On 16.4.2009 the Endotracheal tube was removed after the son-in-law of the patient gave consent at about 9.45 a.m. for removal of the tube and reintubation if necessary. After the Endotracheal tube was removed, the oxygen saturation decreased significantly and it was decided to reintubate and Endotracheal tube at about 10-30 a.m.. However, the attendant of the patient refused reintubation. The condition of the patient , the poor prognosis and the consequences were explained to the attendants including the complainant. The oxygen saturation was low as a result of which the patient was breathing very heavily and since the attendants have refused intubation/tracheotomy the earlier treatment continued. The condition of the patient deteriorated, as the attendants were not co-operating with the doctors. As a result, tracheotomy, which was required to be done on the patient could not be done. The patient was gasping throughout the night. Again on 17.4.2009 the opp.party no. 3 examined the patient and found that there was labored breathing and the oxygen saturation was fluctuating between 80-96%, sensorium also remained the same.
32) The patient was gasping and the condition was explained to the attendants. In the afternoon the patient had a cardiac arrest secondary to hypoxia and the patient passed away about 5.20 p.m.. It is categorically denied that the patient had died due to the negligence and want of due care and deficiency of service in the hospital , as has been alleged or at all.
33) The bed side ticket of the patient , which has the details of the treatment given to the patient is enclosed with the written statement and marked as Annexure –III which has been exhibited as Ext.G.
34) From the pleading of the parties mentioned herein above we propose to decide the dispute on certain issues which are on the following points:
(i) Whether the present complaint is bad for non -joinder of necessary party ?
(ii) Whether there is medical negligence on the part of the opp. party no- 3 to 5 ?
(iii) Whether there is deficiency in service in providing treatment to the patient i.e. the father of the CW-1 ?
(iv) Whether there is any deficiency in services on the part of op.party No.1 & 2 as the deceased patient was admitted in the hospital ?
Reason for decision:
35) So far issue no-(i) is concerned we have gone through record and found that there is no other such person i.e. the close relatives of the deceased who had taken care of the patient throughout except the complainant, when the patient was undergoing treatment at nursing home of (O.P.No-1).
36) Since the matter of dispute is regarding deficiency of service provided by the opp. parties , it is not a matter of any inherited right on the subject of services to the patient concerned as the patient was under care of the complainant . In our humble opinion non joining the other close relatives of the deceased patient is not directly connected to the complainant story and accordingly this issue is decided in negative.
37) To decide the issue no-2 whether there is medical negligence on the part of the opp. parties no-3 to 5 we have considered the evidence on record and also relevant documents for the purpose of determining the issue in distinctive manner. From the evidence it is apparent that father of the complainant was hospitalized on 13/02/2007 and treated by opp. party no-3 and diagnose with preumonia and animia which is not denied by the adverse parties and the patient was released on 22/7/2007 with a specific advice for follow up treatment. As per evidence the patient continued his subsequent treatment since from 26/03/2009 at indoor patient and Ext-G the bed head ticket from 26/03/2009 available record is undisputed. The patient on 26/03/2009 had under gone various test and it was found not a case of medical urgency. As per bed head ticket the patient was examine by the opp. party no-3 at 7O’ clock in the evening hour and also attended him at 7.45 PM. On careful perusal of the Ext-G the bed head ticket it is found that opp. party no-3 had regularly visited the patient from 26/03/2009 till 17/04/2009. The pleading and written statement about regular visit of doctor is found proved through Ext.G.
38) Moreover, there is not a single evidence from the complainant side about medical negligence and no expert evidence is produced to establish the allegation made against opp. parties No.3 to 5 about wrong treatment or irregularity in providing services by the opp. party no-3 and other two.
39) In course of argument our attention has been drawn of a judgment of “Dr Sathi and Pillai as relied upon by the complainant. It is submitted by the opp. party that in the aforesaid case the anesthesia was administered by a skin specialist who had undergone training for administering anesthesia and on the basis of such fact it was held that the doctors were negligent. The same case history is not there in the present complaint and no medical negligence is established.
40) Further taking reliance of the case Syed Akbar vs State of Karnataka explained the principle in a criminal trial as under
“As a rule mere proof that an event has happened or an accident has occurred , the cause of which is unknown is not evidence of negligence” which is brought by the parties during argument.
41) Taking the ratio of another case law Martin F D’Souza vs Mohd. Ishfaq - “ the court observed that the doctor cannot be held liable for medical negligence by applying the doctrine of ress ipsa loquitur for the reason that a patient has not favourably responded to a treatment given by a doctor or surgery has failed.
42) In our present case in hand , there is no such evidence of medical negligence on the part of opp. party no- 3 and 5 as specifically mentioned by the complainant . From the evidence of OPW no-1 Dr Suranjit Baruah and from his cross examination it is revealed that before the death of patient on 8/4/2009 , the ventilation was disconnected . The Endotrachal tube was removed on 16.4.2009 on consent of the guardian. As oxygen taking capacity deteriorated and then asked the guardian to give consent to reintubate ,but the guardian had not given consent and in result the patient died in next day.
The further cross examination of o.p.w. 1 reveals the fact as admitted during cross is that the patient died due to respiratory track infection . Septichemia, Septechonic shock, metabolic encepkelowpathy and cardio respiratory arrest.
43) We have considered the evidence on affidavit and also the cross examination of Miss Krishnamoni Phukan which are quoted as below.
a) “I have not made any medical expert witness in this proceeding. In 2007 my father was suffering from neumomia (cough problem) and he was admitted in Down Town Hospital and was treated by opp.party No.3. When he was in cabin I used to take care of my father along with other relatives . I was not constantly present in the cabin. None of the attendant is called as witness.”
b) “Regarding the incident of 27.3.2009, I lodged verbal complaint to the hospital authority . I have not mentioned in my affidavit that I have lodged verbal complaint to the hospital authority in this connection of the incident dtd. 27.3.2009.”
c) ”Doctor advised me to feed my father extra raw salt with the help of a spoon. I failed to feed my father raw salt fully mixing with water , but succeeded to feed ½ teaspoon of salt water .”
d) “It is a fact that prior to putting the patient in Ventilator , consent was taken.”
e) “I myself filed the complaint . In my complaint there is no mention of any act done by Dr.Tridip Sarma (Opp.party No.5),” but I mention in my affidavit something as alleged Dr.Tridip Sarma.
f) “My case is basically against op.party No. 1 , 2 & 3 as opp.party No. 1 had admitted my father by taking money , but did not provide services as promised and they were completely negligent in providing treatment to my father and further reason in para No. 4 of my complaint I have mentioned that the complaint has been filed seeking redressal of grievances against negligence and deficiency of service done by opp.party No. 1 , 2 & 3.
44) The aforesaid statement and admission made by C.W. 1 is found relevant for determining the issue in dispute in respect of treatment provided to the father of the complainant .
45) Another case law relied upon is Jacob Mathew vs State of Punjab reported in 2005 (6)SCC 1 , it has been reiterated that“simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of medical profession.”
46) In our present case in hand , there is no such evidence of medical negligence on the part of opp. party no- 3 to 5 and from the evidence of OPW no-1 Dr Suranjit Baruah and from his cross examination it is revealed that before the death of patient on 8/4/2009 , the ventilation was disconnected . The Endotrachal tube was removed on 16.4.2009 on consent of the guardian. On oxygen taking capacity deteriorated and then we asked the guardian to give consent to reintubate ,but the guardian has not given consent and in result the patient died in next day.
47) From the aforesaid evidence of the opp. party we are of the opinion that no medical negligence is proved against the opp. party no-3 to 5 . It is apparent from bed head ticket (Ext.G) that opp.party No.3 and other two have regularly attending the patient. Ext.G has not been questioned or challenged by the complainant in any manner. Hence, this issue is decided in negative.
48) Issue No. iv: Now we have given anxious look on the law relating to the Clinical Establishment (Registration and Regulation) Act,2010 and standard for hospital level-1-A and 1 -B .According to the Establishment Act , the opp. party no-1 is a hospital level 1-B and this category of hospital shall included all the general medical services provided at level 1-A and specialised medical services provided by the doctors from one or more basic specialty like general medicine, general surgery pediatric, obstritric and gynecology and dentistry providing indoor and out door services.
49) The 1-B level of hospital shall also include support system required for the respective services like pharmacy, laboratory etc.
50) We have gone through the Clinical Establish Act, 2010 for hospital level-1-A and 1 -B and the provision 4.1 to 4.3 read as under :
4.1 -The hospital shall have adequate medical equipment and instruments commensurate to the scope services and number of beds .
4.2- There shall be establish system for maintenance of critical equipment.
4.3- Equipment shall be kept in good working condition through a process of periodic inspection, cleaning and annual maintenance .
51) Further As per provision 6.1 of the Establishment Act the hospital shall have qualified and trained medical & nursing staff as per the scope of service provided and the medical /nursing care.
52) Keeping in mind the above mentioned provision of the law we have considered the submission of the ld. counsel of the complainant and the evidence adduced by CW-1 . According to complainant in the morning of 27/03/2009 , the patient complained that there was no nursing staff present at night in the semi –ICU as only one nurse was assigned duty for two ICUs situated adjacent . The patient further complained that his hands and legs were tied in the night for which he called the nurse on several times as he had to urinate but none appeared to help him for which he urinated in the bed itself.
53) To rebut the aforesaid allegation there is no evidence from the opp. party hospital that nurses were provided sufficiently as required by the rules relating to maintaining nursing home by the opp. party no-1 and 2.
54) Here we have taken an anxious look at the document Ext.204 , which is a receipt in support of payment of Rs. 1,84,121.19/- by the complainant to the opp.party hospital, a specific payment which has been made under the heading of service charges an amount of Rs.3,335/- and nursing care Rs.2,300/- . This fact has made it clear that on payment of service charges the hospital is definitely liable for providing service including nursing care etc. .
55) In our case in hand there is an allegation that no nurse was found on repeated call while the patient was in critical care . This fact has not been rebutted by the opp.party that constant care and service were provided to the patient. Op.party claims that the nurse and patient ratio is 1:1 in the semi I.C.U. and allegation of non-availability of nurse is denied by the op.parties . But mere denial in respect of the aforesaid statement is not sufficient to hold a view that on particular day i.e. on 27.3.2009 there was a nurse at the ratio of patient nurse 1:1 in the I.C.U. to attend the patient . If such number of nurse was present the opp.party could have disclosed the name of the nurse or duty sleep of the concerned nurse to substantiate the fact that there were nurses present all along in the semi I.C.U. as stated earlier at the ratio of 1:1 . Hence we are of the opinion that due care of the patient was not taken as alleged in the semi I.C.U. though the charges for nurse’s care was incurred by the complainant .
56) Another allegation of poor services provided by the op party is that blanket was not given inspite of several request . Our queries to the aforesaid question has not been satisfactorily explained by the opp.party in their evidence . Hence there appears deficiency in service on the part of the opp.party No. 1 & 2 towards the patient , though they have charged the patient under the heading of service charge and nurse care.
57) Lastly we have thoroughly examined the evidence on record and found that there is an allegation of forcefully feeding food by the complainant without following the proper instruction of the doctor concerned i.e. opp.party No. 3. Here the question arises what care and service has been provided by the hospital in providing food to the patient . Is it not a duty of the attending nurse or staff of the hospital to give proper feeding instruction in such a critical situation ? The answer is in our humble opinion is that special care ought have been taken by the hospital authority through attending nurse/staff in feeding the patient in such a situation and it has not been done by opp.party No. 1 & 2 and hence they are found liable for compensation to the complainant . In result there is a deficiency of service against opp.party No. 1 & 2 .
ORDER
In result it is held that opp.party No. 1 & 2 are liable for payment of compensation for the reason of insufficient services provided to the father of the complainant (patient) and both are jointly and severally liable . The opp.party No. 3 , 4 & 5 are not found liable for any medical negligence and service provided to the patient. Accordingly opp.party No. 1 & 2 are directed to pay a compensation of Rs. 2,00,000/- (Rupees two lakhs) only with a cost of proceeding amounting to Rs.20,000/-(Rupees twenty thousand) only to the complainant . The entire decretal amount is to be paid to the complainant by the opp.party No.1 & 2 within 45 days from the date of judgment failing which the opp.party have to pay an interest @12% per annum from the date of judgment till realization .
Given under our hand and seal of the District Commission, Kamrup, this the 28th day of January /2022.
(Shri A F A Bora)
President
District Consumer Commission,Kamrup
(Smti A D Lahkar)
Member
District Consumer Commission,Kamrup
(Shri T D Goswami)
Member
District Consumer Commission,Kamrup
Dictated and corrected by me
( Shri A F A Bora)
President,
District Consumer Commission, Kamrup.
Typed by me
(Smt Juna Borah)
Stenographer,
District Consumer Commission, Kamrup.
