Orissa

Cuttak

CC/73/2012

Prafulla Chandra Mohanty - Complainant(s)

Versus

Dr Maya Gantayat, Chief Executive,Ashwini Hospital - Opp.Party(s)

S Mohanty & associates

28 Jun 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

 

                                                                C.C.No.73/2012

 

1. Prafulla Chandra Mohanty, aged 50 years,

son of Sri Ramakrishna Mohanty.

 

2. Amrit Mohanty,aged 22 years,

S/PO:Sri Prafulla Chandra Mohanty.

 

3. Amlan Mohanty,aged 12 years,

son of Sri Prafulla Chandra Mohanty.

 

Minor represented by his father guardian Sri Prafulla Chandra Mohanty.

 

All are residents of Madhusudan Nagar,P.O:Tulsipur,

Cuttack-753008,P.S:Bidanasi,Town & Dist:Cuttack,

Odisha.                                                                                            ... Complainants.

        

                                                Vrs.

 

1. Ashwini Hospital(Unit of Cuttack Hospitals (P) Limited)

Bearing Regd. No.509/06,Sector-1,CDA,

Bidanasi,Cuttack-753014,Odisha

represented by its Owner/Proprietor/Chief Executive Dr. Maya Gantayat.

 

2. Dr. Maya Gantayat,W/O:Dr. Subrat Kumar Jena,

Ashwini Hospital Campus,Sector-1,CDA,

Cuttack-753014,Dist:Cuttack,Odisha.

 

3. Dr. Subrat Kumar Jena,Orthopedic Surgeon,

Ashwini Hospital, Sector-1,CDA,Cuttack-753014,

Dist:Cuttack,Odisha.

 

4. The New India Assurance Company Limited represented through its

Branch Manager,Cantonment Road Branch,

P.O:Cuttack-1,Dist:Cuttack,Odisha.                                                        ...Opp. Parties.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    26.03.2012

Date of Order:  28.06.2022

 

For the complainant:            Mr. S.D.Mohanty,Adv. & Associates.

For the O.Ps   1,2 & 3  :        Mr. B.Baug,Adv. & Associates.

For the O.P No.4:                  Mr. R.Pati,Adv. & Associates.

Sri Debasish Nayak,President.             

                                                                        

Case of the complainant as made out from the complaint petition in short is that on 21.3.2010 all the complainants alongwith the deceased Manisha Pattnaik, one Baidehi Sahoo and some others had been to Jagatsinghpur for Sarala Temple Darshan there.  They proceeded in two vehicles, one of which is a Hyundai Santro Car bearing Regd. No.GJI-AB-5972 and the other one is a Maruti 800 Car bearing Regd. No.OR-05-R-6459.  The deceased Manisha Pattnaik was sitting at the back seat of the Hyundai Santro Car bearing No.GJI-AB-5972 and the same was being driven by complainant no.2 Amrit Mohanty.  The deceased alongwith Baidehi Sahoo and complainant no.3 (Amlan Mohanty) were sitting in the said Hyundai Santro Car whereas the other companions  were sitting in the Maruti 800 Car which was being driven by complainant no.1 and it was following the Hyundai Santro Car then.  That day after darshan while all of them were returning at about 4.15 p.m near Charpolia  Bazar, the Hyundai Santro Car met with an accident having head-on collision with a Ambassador Car bearing  Regd. No.OR-02-H-5582, as a result of which the persons travelling in the said Hyundai Santro Car had sustained injuries.  The local people rushed to rescue and had extricated the complainant no.2 who was driving the said Hyundai Santro Car then.  Manisha Pattnaik, the deceased had sustained internal and external injuries but she was able to talk.  Complainant no.1 carried all the injured persons from the place of accident straight to Ashwini Hospital at C.D.A,Cuttack and by 6.30 p.m that day they had reached the said hospital.  The injureds were checked up at the Casualty of Ashwini Hospital at about 6.30 p.m. Scanning and X-ray were undertaken of the injured persons.  Since because complainant no.2 Amrit Mohanty had not sustained any such serious injuries, he was released but Baidehi Sahoo had sustained fracture of her leg for which she was kept in the Semi-ICU and for better treatment after initial recovery she had left Ashwini Hospital on 23.3.2010.  Due to vomiting, complainant no.2 was readmitted in the said Ashwini Hospital during that midnight and was opined to have sustained injuries at his pancreas for which he was operated on 23.3.10 and was kept in the ICU thereafter for a month.  But when his condition deteriorated, he was shifted to Apollo Hospital at Hyderabad on 12.4.10 for better treatment.

After conducting the tests O.P No.3 opined that there were no injury in the brain of Manisha Pattnaik but there were injuries in her chest, she had sustained fracture of her ribs and also of her femur bone.  The left side ribs of Manisha Pattnaik were also fractured and inspite of the serious injuries, she was talking normally then.  She was shifted to the ICU at about 8.30 p.m on 21.3.10 and was subjected to blood transfusion on that night for which complainant no.1 had procured two units of blood from the Blood Bank of Cuttack.  None one was allowed to meet Manisha Pattnaik in the ICU that evening but on 22.3.10 during the visiting hours i.e. within 5 p.m. to 6 p.m visitors were allowed and it was noticed that Manisha Pattnaik was talking normally with the visitors.  On 22.3.10 complainant no.1 had made advance of some of amount in order to further the treatment of Manisha Pattnaik.  On 24.3.10 Dr. Maya Gantayat(O.P No.2) had informed complainant no.1 Prafulla Chandra Mohanty that surgery would be done for the fracture in the right leg and plastic surgery would be done in the injury at the face of Manisha Pattnaik on 25.3.10.  Complainant no.1 had suggested to O.P No.2 for calling Dr. U.N.Mishra or Dr. C.P.Das of Orthopaedic Department for doing the said surgery as those surgeons were available at Cuttack.  But O.P No.2 did not permit the same, rather, she opined that O.P No.3 would be conducting the surgery being an expert of Orthopaedic surgery and of plastic surgery.  The date of operation was fixed by O.P No.2 to be 25.3.10.  The complainant no.1 was unwilling for the said operation on the said date as because 25.3.10 was a ‘Thursday’ and suggested that the surgery may be done on 26.3.10 but O.P No.2 preferred the date of surgery to 24.3.10 and had instructed the complainant no.1 to make deposit of Rs.40,000/- and accordingly the said amount was deposited on 24.3.10 by complainant no.1.  On 24.3.10 at about 5 p.m. the complainant had met Manisha Pattnaik in the ICU of Ashwini Hospital and had found that blood transfusion to be going on but she was talking normally then.  That day at about 6 p.m, complainant no.1 was asked to sign on certain papers relating to the formalities before the surgery and accordingly the complainant no.1 had signed all those papers as required.  Complainant no.1 had to wait at the ‘waiting room’ of the said Ashwini hospital in order to know about the time of the operation but at 2 A.M. on 25.3.10 the complainant no.1 was asked to go to the ICU and to meet the patient Manisha Pattnaik after her surgery.  Instead of being allowed to go near the bed, complainant no.1 had to glance through the glass partition of the ICU and saw the mask on her face.  On enquiry, O.P No.3 Dr. Subrat Jena informed the complainant no.1 that the patient Manisha Pattnaik was on ventilator and blood transfusion was going on.  On 25.3.10 during the visiting hours it was noticed that Manisha Pattnaik was on ventilator and was in a sleeping posture but was not talking or responding to anyone.  At 11 A.M. on 26.3.10 the complainant no.1 was told that the condition of the patient Manisha Pattnaik was deteriorating and she had developed cardiac problem.  Immediately thereafter by going to the said hospital, complainant no.1 was informed that Manisha Pattnaik had succumbed to her cardiac problem.  Her body was then taken to the S.C.B.Medical College and Hospital for autopsy and thereafter was cremated at the Satichoura Crematorium in the evening of 26.3.10.

The complainants thus alleged deficiency in service as rendered by the O.Ps.  From the tests and reports therein it was confirmed in the evening of 21.3.10 that Manisha Pattnaik had sustained injury in her lungs and there was bleeding for which blood transfusion was made.  It is alleged by the complainants that knowing fully well about the injury and bleeding in the lungs of Manisha Pattnaik and that she had threat of her life, no specialists were called for treatment.  O.P No.2 & 3 had pressurised complainant no.1 for the surgery at the leg of Manisha Pattnaik on 24.3.10 and they had not assessed her health condition before such surgery.  Heart, lungs and other vital parameters of the deceased were not evaluated prior to the surgery and accordingly it is alleged by the complainants that there was deficiency in service of the O.Ps.  It is further alleged by the complainants that the O.Ps insisted for early surgery of the leg and plastic surgery of the face of the deceased which was not required at that moment when question for saving the life of the critically injured patient Manisha Pattnaik was the utmost priority and that operation of  her fractured leg could have been deferred when there is a option before them for life or limb.  Without conducting the surgery for fracture, the plastic surgery of the face, it would have been better to treat the bleeding lungs of the deceased so as to protect her life first.  Thus, it is alleged by the complainants that the line of treatment in such hasty manner clearly indicates about the malafide intention and also about the deficiency in the service of the O.Ps which resulted in the departure of life of the patient Manisha Pattnaik.  The request as made by the complainant no.1 to call for Dr. U.N.Mishra and Dr. C.P.Das was turned down by O.P No.2 who preferred O.P No.3 on the ground that O.P No.3 is quite efficient and capable.  It is further alleged by the complainants that while obtaining the consent of complainant no.1, he was kept at dark as regards to the subsequent consequential complicacies after the surgery and none of the O.Ps had ventilated him about the same while obtaining his consent for the surgery.  The complainants have further alleged that there was no transparency in functioning of the hospital, no sharing of information about the condition of the patient and about the treating doctors and as such there was definite deficiency in service.  According to the complainants though the O.Ps No.2 & 3 have opined that the patient Manisha Pattnaik had succumbed to her cardiac problem, the autopsy report opined that she had died due to the injuries at her lungs.  Thus, the complainants have vehemently urged that in order to extract money for doing surgery which was unnecessary then, without taking care of the life of the deceased; the O.Ps hospital had conducted the surgery thereby putting life of the patient at peril and thus the O.Ps 2 & 3 had acted in an negligent manner for which the complainants alleged about the deficiency in service on the part of the O.Ps.

The deceased was working as a primary teacher in the Kendriya Vidyalaya at Charbatia and was drawing a salary of Rs.27,612/- per month.  She died at the age of 49 years for which there was a loss of income to her family to the tune of Rs.35,00,000/-.  The complainants have claimed a sum of Rs.17,00,000/-.  The complainant no.1 had paid a sum of Rs.52,750/- to the O.Ps towards the treatment of his wife the  deceased.  After the death of the deceased, the complainants being husband and sons of the deceased had suffered mental agony and pain due to the untimely death of the deceased.  They have thus claimed a sum of Rs.2,00,000/- towards compensation for their mental agony alongwith interest @ 10% per annum from the date of filing of the case till the payment is made.  They have also claimed for the litigation cost.  They have filed all the copies of relevant documents like medical prescriptions, bills etc to support their case and they have ultimately claimed a sum of Rs.19,52,750/-  as compensation from the O.Ps alongwith interest @ 10% per annum from the date of the complaint till the date of payment.

2.            The O.Ps No.1,2 & 3 have contested this case and have conjointly filed their written version.  In their written version, the O.Ps have stated that there is no cause of action for the complainants to file this case, the case is not maintainable, the same is bad for non-joinder of necessary parties as because the Insurance Company being a necessary party is not joined as a O.P by the complainants.  In their written version the O.Ps have admitted about the accident causing injuries on the person of the deceased as well as that of some of the accompanying persons on 21.3.10 and about the check up and treatment of the injured persons that day at 6.30 p.m.  They have stated that the serious condition of the deceased who was not able to talk even.  She had serious rib injury at both of her lungs and mediastinum as a consequence she had massive bleeding inside her chest which was noticed by the CT-Scan of chest.  She was instantly treated by giving appropriate chest limb and drain and 1.7 litres of blood had oozed out from her chest.  She was admitted to the ICU and blood transfusion was made that day after two units of blood being procured by complainant no.1 from the Blood Bank of Cuttack.  On 22.3.10 and 23.3.10 the blood transfusion was made and other treatments were conducted in order to stabilise her condition.  On 24.3.10 relatives of the injured deceased were informed that surgery would be conducted for the fracture of the right leg and plastic surgery on her face.   After the said operation, she had recovered satisfactorily and was out of ventilator in the evening of 25.3.10.  She was visited by her relatives on that day but in the morning of 26.3.10 she developed cardiac problems at about 11.50 A.M for which Professor Dr. I.C.Mohanty was consulted but her condition had not improved and she succumbed to the cardiac problems.  The O.Ps have further averred that Dr. Manoranjan Pattnaik the then Associate Professor of Pulmonology in the S.C.B.Medical College & Hospital was consulted and he had attended the deceased patient on 22.3.10 and 24.3.10.  On 24.3.10 Dr. Manoranjan Pattnaik had given written clearance for surgery of the patient.  Professor Dr. I.C.Mohanty of Cardiology had also given clearance for surgery of the patient.  As it appears from the written version of O.Ps No.1,2 & 3, specialists were brought to see the patient Manisha Pattnaik prior to the operation of her left leg and plastic surgery on her face, but none of these specialists were examined to prove this stand as taken by the O.Ps No.1,2 & 3.  The O.Ps have claimed that vital parameters of the patient were under continuous monitoring and the patient was constantly connected to the multi-paramonitor and the vitals were being recorded in the flowsheets as is the protocol of the ICU.  Then it is left in ambiguity as to how could the O.Ps were ignorant of the bleeding inside the lungs of the patient.  The O.Ps had only stated to have drained out 1.7 litres of blood and thereafter had conducted blood transfusion to the patient.  Nowhere the O.Ps have stated about the subsequent consequences of the health condition of the patient Manisha Pattnaik.  Surgery was undertaken at the appropriate time as per the standard prevailing line of treatment of polytrauma.  After obtaining clearance from Cardiologist, Pulmonologist and Anaesthetist, the O.Ps have claimed to have treated the deceased patient with utmost care, sincerity and ability.  O.P No.3 is a competent doctor having Orthopaedics in the year 1982,FICS(pro 1983) and M.A.Ch. Plastic Surgery (1985) who has vast experience and had treated thousands of patients of polytrauma surgery at Ashwini Hospital.  According to the O.Ps, the complainants have not cleared the outstanding dues of the hospital to the tune of Rs.25,000/- to Rs.30,000/-.  According to the O.Ps, the complainant no.1 had never suggested for calling Dr. U.N.Mishra or Dr. C.P.Das.  Thus according to the O.,Ps, when they had treated and taken care of the deceased patient with utmost sincerity, there was no deficiency in their service and thus, the complaint petition being not maintainable be dismissed which is also barred by law of limitation and the complainants are not entitled to the compensation as claimed by them.

The O.Ps have also filed copies of certain documents in order to prove their case.

 

3.            Having been impleaded as O.P No.4, New India Assurance Company Ltd. has contested this case and has filed separate written version also.  According to the written version of O.P No.4, the case of the complainants is not maintainable which is liable to be dismissed, no claim has been lodged before O.P No.4 and the O.P No.1 had not given any written notice to O.P No.4 for which there is no cause of action against this O.P.  O.P No.4 admits in his written version to have issued a professional indemnity (Medical Establishment) policy bearing No.550400/36/09/32/00000010 in favour of the Ashwini Hospital which was valid from 22.2.10 to the midnight of 21.2.11.  As per the condition of the said policy, the insured (Ashwini Hospital) is to provide the information as well as all the necessary and required data for enabling the O.P No.4 to cover the policy.  But here in this case no intimation was provided by O.P No.1.  90 days extension of time may have been granted but the policy expired on 21.2.11.  Thus, according to O.P No.4, the complaint petition as filed by the complainants claiming Rs.17,00,000/- is not maintainable since because the indemnity limit for one accident of medical negligence is only Rs.10,00,000/- as per the terms and conditions of the policy.  The O.P No.4 thus prayed to dismiss the complaint petition as filed by the complainants.

                O.P No.4 has also filed copies of certain documents in order to prove it’s stand.

4.            Keeping in mind the averments as made by the complainants in their complaint petition and the contentions of the written version of the O.Ps, this Commission is of the view to settle the following issues in order to arrive at a proper conclusion here in this case.

i.              Whether the complainants had any cause of action to file this case?

ii.             Whether the case of the complainants is maintainable?

iii.            Whether the case of the complainant is barred by law of limitation?

iv.           Whether the case is bad for non-joinder of necessary parties?

v.            Whether there is any deficiency in service on the part of the O.Ps?

vi.           Whether there was any medical negligence on the part of the O.Ps?

vii.          Whether the complainants are entitled to the benefits as claimed?

 

In order to further their case, the complainants have filed the evidence affidavit of complainant no.1 who is subjected to cross examination by O.Ps 1,2 & 3 and so also by O.P No.4.  On the other hand, all the O.Ps have filed evidence affidavit of O.P No.3 as D.W.1 who is also subjected to cross examination by the complainants.

Issues no.5 & 6.

Out of all the issues, issues no. 5 & 6 being important issues are taken up together for the sake of convenience here in this case. 

By filing the complaint petition as well as by filing the evidence on affidavit of complainant no.1 who is non-else than the husband of the deceased patient Manisha Pattnaik and by filing a series of copies of relevant documents, the complainants have vehemently tried to establish that there was deficiency in service on the part of the O.Ps which led to a departure of life of the critically injured Manisha Pattnaik. In order to counteract, the O.Ps through their written versions have tried to establish that there was no deficiency in their service and they had treated, conducted surgery over the patient Manisha Pattnaik with utmost care and sincerity and as a result of which there was no deficiency in their service and there was no medical negligence also.  To support their stand O.Ps No.1,2 & 3 had examined O.P No.1 and have filed his evidence affidavit as D.W.1.  They have also filed copies of certain documents in order to support their stand.

 It is needless to say that generally a treating physician never intend to kill a patient, rather, endeavour is always expected for making all efforts in order to make the critically injured patient alive.  Either sides to this case have filed important decisions of our Hon’ble Apex Court to support their respective stands as taken.  Perused those decisions.  In a case of this nature, it is the duty of this Commission to carefully turn each part of evidence and scrutinize minutely in order to ooze out the truth hidden beneath.

In order to establish their sincerity in service, O.Ps No.1,2 & 3 have categorically mentioned in their written version and O.P No.3 in his evidence on affidavit as D.W.1 has also specifically mentioned that prior to the surgery upon the fractured leg and injured face of the deceased Manisha Pattnaik, they had obtained report of clearance from Pulmonologist Dr. Manoranjan Pattnaik and Cardiologist Professor Dr. I.C.Mohanty.  After obtaining clearance the surgery was made.  They had taken utmost care and with much sincerity the operation was conducted after which the patient was out of ventilator but subsequently had succumbed to her cardiac problem.  In this score, while perusing the certified copy of the autopsy report of the deceased patient Manisha Pattnaik who was subjected to post-mortem at the SCB Medical College and Hospital of Cuttack as the same has been filed by the complainants; it is noticed that the doctor who had conducted the autopsy has mentioned in the autopsy report that the death of Manisha Pattnaik the patient was due to complications of blunt trauma injury to chest organs.  Quite strangely the said doctor has not mentioned in the autopsy report that if the deceased Manisha Pattnaik had succumbed to her cardiac problems.  The difference in opinion about the cause of death of the deceased Manisha Pattnaik should have been properly explained by the O.Ps No.1,2 & 3 but there is no convincing statement  putforth by them in this regard.  Moreso, neither the Pulmonologist Dr. Manoranjan Pattnaik nor the cardiologist Professor I.C.Mohanty are examined by the O.Ps to establish their stand taken as because the O.Ps claim to have obtained clearance for surgery from both of them.  It is noticed that  save and except O.P No.3 none of the treating doctors including Anaesthetist those who were present during the operation of the deceased are examined by the O.Ps in order to establish their stand.

O.Ps No.1,2 & 3 have relied upon two of the decisions of the Hon’ble Apex Court.  (i) The case of Vinod Jain Vrs. Santkoba Durlabhui Memorial Hospital reported in (2019) 12 SCC 229 wherein the placitum is that “Consumer Protection-Services_Medical Practitioners/Services-Medical Negligence-Requirements for establishing, reiterated_ Non-establishment of medical negligence in the absence of any deviation from standard protocol by the doctor_ Prescription by the doctor of antibiotic tablet, by oral administration through the nasal tube, when as per the medical reports, the cannula used for intravenous treatment stopped functioning; and discharge of the patient considering her physical condition_ Non-consideration of, as medical negligence”. They have also relied upon another decision of our Hon’ble Apex Court in the case of Harish Kumar Khurana Vrs. Joginder  Singh and Others published in (2021) 10 SCC 291 wherein the placitum is that, ”Consumer Protection-Services Medical practitioners/services Medical negligence_Res ipsa loquitur_ May be considered applicable where negligence alleged is glaring, in the facts and circumstances of a case, if the evidence on record establishes the same_ Emphasised, that findings of medical negligence of doctors and/or the hospital, must be based on proper medical evidence on crucial medical aspects_ Court or Consumer Forums cannot take decision on basis of mere legal principles and general standard of assessment sans expert medical evidence on highly technical medical issues _ Such decision would amount to a situational perception by the court or the Consumer Forums _ In present case, allegations of medical negligence, in absence of supporting medical evidence, in the facts and circumstances, held, not made out _ NCDRC erred in holding appellants; anaesthetist and hospital, guilty of medical negligence and awarding compensation to respondent claimants”.   On perusal of these decisions as cited, it is noticed that the facts and circumstances of the present case in our hand differs widely from the facts and circumstances of the cases basing upon which the said two decisions have been held by the Hon’ble Apex Court.   It is because, as it appears in this present case, by neglecting the treatment of profuse bleeding in the lungs of Manisha Pattnaik, only after draining out the accumulated blood in the lungs, the O.Ps had preferred to operate the fractured leg of the said patient; which clearly indicates that there was deviation from standard protocol by the O.Ps which is glaring and easily noticed.  On the other hand, the complainants have relied upon the report of Dr. J.Hugh Devitt. M.D, FRCPC, Department of Anaesthesia, Sunnybrook Health Science Centre,University of Toronto,Toronto.  According to whom in Haemothorax, “Bleeding may be minimal or massive as one haemothorax can accommodate 30 to 40% of a blood volume.  Such a massive haemorrhage usually indicates injury to the heart or great vessels.  A massive haemothorax is defined as more than 1500 ml of blood in the pleural space and will cause hypovolaemic shock.  Mediastinal shift can occur and will cause further cardiovascular embarrassment and ultimately cardiovascular collapse.  Physical examination is difficult in the operating room but findings such as decreased breath sounds and tracheal deviation from the affected haemothorax should be elicited.  The diagnosis is confirmed with radiography”.   The complainants have also relied upon a catena of pertinent decisions in order to establish their case.  Out of those, it would be worthwhile to quote only those decisions which would be useful.  The O.Ps have harped upon the consent memo being signed by the complainant no.1 prior to the surgery.  On the other hand, the complainant no.1 has stated that he was unaware of the contentions of the consent memo and was not in a normal mood since because of the serious condition of his wife Manisha Pattnaik and had only signed when asked to do so without even knowing contents or the contents being explained to him.  He has also stated to have signed on certain blank papers being asked.  On this score decision cited on behalf of the complainants published in the case of Samira Kohli Vrs. Prava Manchanda reported in Air 2008 SC 1385 at paragraphs no.32 and 35, in another case of Nizam Institute of Medical Sciences Vrs. Prasanth S.Dhananka and Ors. reported in (2009) 6 SCC 1 at paragraphs 43 to 51 and also in the case of Malay Kumar Ganguly  Vrs. Sukumar Mukherji reported in AIR 2010 SC 1162 in paragraphs No.155 to 157 wherein their lordships have held that the consent given by complainant no.1 is not informed consent.  They have held therein that consent should be on the basis on vital information concerning the nature of treatment procedure so that person concerned knows what he is consenting to.  Thus, the contention of the O.Ps that the complainant no.1 had signed the consent memo does not hold good in absence of cogent evidence in that light. 

While cross examining P.W.1 who is the complainant no.1 himself, it is noticed that quite aptly, he has surmised to the witty question put to him on behalf of the O.Ps No.1,2 & 3 and has admitted that he has not made any allegation of medical negligence or wrong treatment against any individual doctor concerned with the present case but he has allegations only against Ashwini Hospital.  It is for this, the O.Ps have contended that since because the complainant no.1 has no allegation against any individual doctor, it can never be said that the O.Ps No.1,2 & 3 are liable in this case.  On this score, the complainants have relied upon a pertinent decision of our Hon’ble Apex Court in the case of M/s. Spring M.Meadows Hospital & Another Vrs. Harjol Ahluwalia reported in AIR 1998 S.C 1801 at para no.13.  In support of this decision, the complainants side have urged that O.P No.1 is vicariously liable for the negligence of the erring doctors. As it is noticed that the complainant No.1 after submitting his evidence on affidavit was subjected to cross examination by the O.Ps and when questioned about the CT-Scan if any of the lungs was conducted of his patient wife, he has expressed his ignorance.  He has also denied on being questioned that he was explained about the pros and cons details about the surgery prior to it.  As it appears from the evidence and cross examination of the complainant no.1, he is not a technical person, unconnected with medical profession and thus unaware of the medical complicacies.  His statement as made while being cross-examined that he has not alleged any of the individual treating doctor is quite obvious as because being the husband of the deceased patient and a person detached from medical profession had to wait at the waiting hall of the Ashwini Hospital in order to know the result of the operation.  So expecting that he would allege against any of the treating physicians by remaining outside of the Operation Theatre is ridiculous.  Out of innocence and simplicity he has stated that though he had not alleged against any individual treating doctor, he had alleged against O.P No.1 i.e., the Ashiwini Hospital.  It is obvious because as an attendant of the patient being not present at the time of operation within the Operation Theatre and a person unconnected with medical profession he can never say as to who is to be alleged for the loss of life of his wife.  In this score the pertinent decision as relied can be reiterated here.  In the case of Smt. Savita Garg Vfrs. Director,National Heart Institute reported in AIR 2004 SC 5088 at para-16, Nizam Institute of Medical Sciences Vrs. Prsanth S.Dhananka and others reported in (2009) 6 SCC 1 para 77 & 78 and in the case of Malay Kumar Ganguly Vrs. Sukumar Mukherji and others reported in AIR 2010SC 1162 para 125 & 126.

The certified copy of report of the doctor who had conducted autopsy of the deceased Manisha Pattnaik can be adjudged here in this case as the Opinion of an Expert since because the autopsy was done at the S.C.B.Medical College and Hospital which undoubtedly a Govt. Hospital where the Asst. Professor Dr. Amarendra Naik who is unconnected with this case, had conducted the autopsy of the deceased Manisha Pattnaik in the Department of FMT and the said autopsy report has been countersigned by the then Professor and Head of the Department of FMT in the S.C.B.Medical College and Hospital, Cuttack.  As per the said autopsy report, there were 500 cc of blood noticed in the left chest of the deceased Manisha Pattnaik whereas there were 700 cc of blood in the right chest of the said deceased.  After going through the article published of Dr. J.Hugh Devitt. M.D, FRCTC Department of Anaesthesia, Sunny-brook Health Science Centre Vrs. University of Toronto,Toronto  regarding “Haemothorax” and keeping in mind the Bolam test theory which is accepted by Hon’ble Supreme Court of India, it is expected from a treating physician to have reasonable competence in the field and if such reasonable competence is not exercised then it can be said that the said treating physician had committed medical negligence.  Of course a treating physician may not be of the topmost grades but should have the reasonable competence or in other words a standard competence and prudence while treating a patient who had sustained various injuries on her person.  As per the article of the aforesaid doctor while administering Anaesthesia to the critically injured patient Manisha Pattnaik who had fracture in her ribs as reported by the O.Ps 2 & 3 and there was massive bleeding in her lungs which is also admitted that they had drained out 1.7 litres  of accumulated blood from her chest.  At this condition of the injured, the O.Ps thought it proper to administer anaesthesia to the patient in order to operate her fractured leg and to rectify her injured face.  In the said article, it has been categorically mentioned that when there is massive bleeding due to injury in the lungs if anaesthesia is administered, then there might have occurred cardiac problem.  This angle affecting the life of the critically injured patient Manisha Pattnaik was never discussed or taken care of by the O.Ps.  When there is a question of life to death obviously life is to be given the first preference and when there is a question of life to limb it is undoubtedly the limb to be given the second chance and the not the life.  But, here something unusual is noticed which tilts our eye brows and casts a shadow of doubt on the hasty and malafide action taken by the O.,Ps at the critical juncture while treating the patient Manisha Pattnaik which took away her life.

From the above discussions we are forced to arrive at an irresistible conclusion that in fact the quintessence of negligence is well visible from the Shillotte of darkness which the O.Ps had tried to camaflouge.  Thus this Commission is of a considerate view that in fact the allegation as made by the complainants here in this case regarding the deficiency in service cannot be ignored and we are constrained to hold that in fact there was medical negligence by the O.Ps which resulted in the departure of the life of the critically injured Manisha Pattnaik who is the wife of the complainant no.1 and the mother of complainants No.2 & 3.   These two pertinent issues are thus answered against the Opposite Parties and we have no hesitation to hold that the O.Ps are at fault of committing deficiency in their service and that there was medical negligence.

Issues No.1,2,3 & 4.

In their written version, O.Ps 1,2,3 & 4 had urged that the case is barred by law of limitation.  On this score while analysing to evidence as available in the case record, it is noticed that the accident had taken place on 21.3.10.  The wife of complainant no.1 namely Manisha Pattnaik had expired on 26.3.10 and after observing all the formalities, she was cremated at the Satichoura Crematorium on the same day evening.  Complaint petition was filed in the court on 26.3.12.  As per provisions of the C.P.Act,1986, the case is to be filed within 2 years of the incident and if strictly observed there is delay of only one day here in this case  while filing the complaint petition on 26.3.12.  As per the C.P.Act,1986, this Commission while entertaining the complaint petition as filed then, no objection was raised from any corner and the complaint petition being admitted, hearing had proceeded.  Moreso, the delay which is of one day in strict sense being negligible due to the gravity of the matter i.e. the death of the wife of complainant no.1 and the mother of complainants no.2 & 3, and the distressed complainants collecting all the relevant documents thereafter; this Commission is of a considered view that this case cannot be said to be barred on the point of limitation.

When subsequently O.P No.4 has been added being the necessary party, it can also not be said that the case is bad for non-joinder of necessary party.  When the wife of complainant no.1 who is mother of complainants No.2 & 3, had died while being treated at Ashwini Hospital, there was a definite cause of action for all the complainants to file this case and thus this case is definitely maintainable.

Accordingly, all these four issues are answered in favour of the complainants.

Issue No.7.

From the above discussions and evidence as available, it is noticed that the complainants are undoubtedly entitled to the benefits as claimed by them.  It is admitted fact that the deceased Manisha Pattnaik was a primary school teacher in Kendriya Vidyalaya,Charbatia and her salary was to the tune of Rs.27,612/- per month is also not disputed.  After her death on 26.3.10, the unfortunate complainants had to sustain a loss of income to their house each month.  Complainants No.2 & 3 had to lose their mother whereas complainant no.1 had to lose his wife.  In this score, the complainants have claimed a sum of Rs.17,00,000/- towards the salary loss of the deceased Manisha Pattnaik and another sum of Rs.2,00,000/- towards mental agony which they had suffered together with the treating expenses which they had paid to the tune of Rs.52,750/-.  The complainants have also claimed interest @ 10% per annum over the total amount of claim i.e. Rs.19,52,750/-.  The deceased Manisha Pattnaik died on 26.3.10 at Ashwini Hospital while she was at the age of 49 years and by then as it appears she had two dependant sons.  A teacher by profession in a Govt. school and was getting Rs.27,612/- per month towards her salary she might have earned at least Rs.40,00,000/- by the age of 58 years from the date of her demise; if calculated properly and this income which the unfortunate family had lost.  Thus, the claim as made by the complainants appears to be quite reasonable which also includes all other ancillary costs and compensation and the erring O.Ps are definitely liable to pay to the complainants the claim as made.  Hence it is so ordered;

                                                                ORDER

The case is decreed on contest against all the O.Ps.  All the O.Ps here in this case are found to be jointly and severally liable.  The O.Ps are directed to pay to the complainants a sum of Rs.19,52,750/- from the date of filing of this case in the court i.e. from 26.3.2012 together with interest @ 10% per annum till the total amount is quantified.  This order is to be carried out within a month hence.

Order pronounced in the open court on the 28^th   day of June,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                                                                 

                                                                                                                              Sri Debasish Nayak

                                                                                                                                        President

                                                                                                                                                                                                                                                 

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member