West Bengal

Paschim Midnapore

CC/69/2014

Dilip Hait. - Complainant(s)

Versus

Dr. Arup Laha, - Opp.Party(s)

Asim Kumar Dutta

19 Jul 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

     Bibekananda Pramanik, President,

Sagarika Sarkar, Member. 

and 

Pulak Kumar Singha, Member.

 

Complaint Case No.69/2014

 Sri Dilip Hait, S/o Paresh Chandra Hait, Vill. Machna @ Machinan, P.O. Gopalnagar, P.S. Kolaghat, District - Purba Medinipur, PIN-721130..……Complainant.

                                                                              Vs.

1. Dr. Arup Laha, S/o Sambhu Nath Laha, Flat no.13 A2, Hiland Park 1925, Chakgaria, Kolkata-700094,
2. Annapurna Nursing Home, Prop. Balaram Sau, Panchberia, P.O. Panchberia, P.S. Daspur, District Paschim Medinipur, PIN-721146....……….….Opp. Parties.

                                                    

              For the Complainant: Mr. Asim Kumar Dutta, Advocate.

              For the O.P.               : Mr. Kshitish Palmal, Advocate.

 

Decided on: - 19/07/2017

                               

ORDER

               Bibekananda Pramanik, President – Complainant Dilip Hait has filed this consumer complaint u/s 12 of the C.P. Act alleging medical negligence and deficiency in service on the part of O.P. no.1-Dr. Arup Laha and O.P. no.2-Annapurna Nursing Home respectively.

Complainant’s case in brief are as follows:-

Mamata Hait,  since deceased, a female of 24/25 years old, was the wife of the complainant.  She was pregnant and on 03/05/2013 as per advice of O.P. no.1-Dr. Arup

Contd………………..P/2

 

                               ( 2 )

Laha, Mamata Hait was admitted in the nursing home of O.P. no.2. On that very day,  O.P. no.1 performed caesarean operation on her.  On 04/05/2013 at about 7 p.m., the attending doctor of O.P. no.2 intimated the complainant and other members of his family that the condition of Mamata Hait  had become critical and they advised them for transfer of the patient to any better medical centre for better management  and treatment.  It is stated that after such operation  on 03/05/2013, the O.P. no.1 never attended the patient and he could not be even contacted at the time of such crisis.  The complainant was then forced to take his wife to Kolkata for better treatment but on the way her condition became serious for which she was admitted at Sanjibani Hospital at Uluberia at about 9.40 p.m. on 04/05/2013.  Doctor of the said hospital arranged for all necessary treatment of her but nothing could be done in spite of the sincere effort and when the condition of the patient became deteriorated gradually, then the complainant was advised to take her wife to any better medical centre with access to LCU and dialysis and as per their advise, Mamata Hait was taken to Apollo Gleneagles Hospital, Kolkata. At that time she was suffering from tremendous pain in her abdomen and respiratory distress.  Doctors of the Apollo Hospital took all possible medical care and treatment for her but unfortunately Mamata Hait died on 08/05/2013 in the afternoon.  It is stated that the cause of death of Mamata Hait was due to negligence of the O.P. nos. 1 & 2.  The complainant had to spend a sum of Rs.42,000/- in the nursing home of the O.P no.2 for such surgery, a sum of Rs.35,000/- at Sanjibani hospital  and a further sum of Rs.6,00,000/- at Apollo Gleneagles Hospital, besides a sum of Rs.25,000/- for transportation charge,  arrangement of  emergency medicine etc.  It is alleged  in the complaint that the entire matter has been occurred due to negligence of O.P. nos.1 & 2.  Hence the complaint, praying for directing the O.P. Nos.1 & 2 to pay compensation of Rs.20,00,000/- and for other reliefs.

The opposite party nos.1 & 2 have contested this case by filling a joint written version.

Denying and disputing the case of the complainant, it is the specific case of the opposite parties that O.P. no.1 is a qualified doctor and he attended the patient with due care and O.P. no.2 is also an well equipped  nursing home as per Clinical Establishment Act  and for these reason the question of negligence does not arise.  It is further  stated that the O.P. nos.1 & 2 gave their sincere service to the patient and properly advised the patient party.  Complainant, without obtaining an expert opinion, has filed this case with false allegation against the O.Ps and therefore the present petition of complaint is liable to be dismissed.

Contd………………..P/3

 

                                                      

                                                                                            ( 3 )

To prove his case, the complainant has examined four witnesses including himself as PW-1 and the documents, relied upon by the complainant  have been marked as exhibit 1 to 4.  On the other hand, O.Ps have examined O.P. no.1-Dr. Arup Laha as OPW-1 and no other witness.  

                                                                 Points for decision

1. Is the case maintainable in it’s present form and prayer?
2. Is there any deficiency in service on the part of the opposite party nos. 1 & 2 in treating the wife of the complainant?
3. Are the O.Ps guilty of causing medical negligence, as alleged by the complainant?
4. Is the complainant entitled to get the reliefs, as sought for?    

                   

Decision with reasons

Point no.1:-

     Although in their written version, the O.Ps have stated that the present case is not maintainable but at the time of final hearing, maintainability of the case has not been questioned by the O.Ps. The present consumer complaint has been filed by the complainant against the O.Ps. alleging deficiency in service and medical negligence in treating the wife of the complainant against the O.Ps.  So, in the present facts and circumstances of the case, as made out by the complainant, we are of the view that the present case is well maintainable under the provisions of the Consumer Protection Act. 

  This point is accordingly decided  in the affirmative and in favour of the complainant.

Point nos.2 & 3:-

   For the sake of convenience and brevity, both the above points are taken up together for consideration. 

   From the respective pleadings of the parties and the evidence on record, we find that it is not denied and disputed that Mamata Hait,  since deceased, the wife of the complainant, was pregnant and when she felt labour pain she was immediately taken to O.P. no.1-Dr. Arup Laha and after examining her, O.P. no.1 advised her to take admission in the nursing home of the O.P. no.2 for caesarean operation.  Accordingly Mamata Hait was admitted in the said nursing home of the O.P. no.2 and O.P. no.1 performed such caesarean operation on 3/5/2013.  According to the complainant, on 4/5/2013 at about 7 p.m., the attending doctor of the O.P.- nursing home informed the family members of Mamata Hait that the condition of the patient had turned critical and advised them for

Contd………………..P/4

 

 

 

                                                                                            ( 4 )

taking the patient to any other better medical centre.  It is the serious allegation in the petition of complaint as well as during the evidence of PW-1 Dilip Hait that after the operation on 3/5/2013, O.P. no.1-Dr. Arup Laha never came to check up the condition of the patient and he could not be contacted even at the time of such crisis on  4/5/2013 for which they were compelled to take Mamata Hait for proceeding towards Kolkata. On the way, her condition became so serious that she had to be admitted in Sanjabani Hospital, Uluberia on 4/5/2013 at about 9.40 p.m.  Further according to the complainant, doctors of the said hospital arranged for all necessary treatment but inspite of their sincere effort nothing could be done and as per their advice, the patient was taken to   Apollo Gleneagles Hospital, Kolkata and was admitted there on 5/5/2013 with the history of tremendous pain in abdomen and respiratory distress.  It is stated that the doctors of the Apollo Gleneagles Hospital took all possible medical care and treatment on her but unfortunately, Mamata Hait died there on 8/5/2013.  It is alleged that the death of Mamata Hait was due to negligence of O.P. nos.1 & 2.  In support of his said case, the complainant has produced all such medical papers of the treatment of Mamata Hait of all those nursing home and hospitals including the death certificate issued by Apollo Gleneagles Hospital.  PW-2 Dr. Sarmistha Patra, Gynecologist, attached to Apollo Gelneagles Hospital, under whom Mamata Hait was admitted, has stated in her evidence that Mamata Hait died due to refractory shock with D.I.C. and multisystem organ failure.  From the ‘history and physical record’ of Apollo Gleneagles Hospital it is  also found that the patient underwent caesarean operation on 3/5/2013 and after 24 hours of delivery, she was attacked with pain in abdomen and respiratory distress.  During her cross-examination by the O.Ps, this PW-2 has stated that generally in case of surgery of a patient, she is attacked severe pain and respiratory trouble.  So O.P. no.1-Dr. Arup Laha, being a gynecologist and a surgeon, also knew it very well that in case of surgery, the patient might have attacked with severe pain with respiratory trouble.  So after such operation on Mamata Hait, it was the duty of O.P. no.1 to attend her in the said nursing home till her recovery and discharge.  We have already stated that it is the allegation of the complainant that after such operation, PW-1 did not attend the patient and he could not be also contacted at the time of such crisis.  That being the allegation, the O.Ps. particularly the O.P. no.1- Dr. Arup Laha could have produced treatment record of the patient of the said nursing home so as to enable this Forum to conclude that he had taken reasonable care of the deceased patient and that he was not negligent in taking post operative care of the deceased patient.  Said Dr. Arup Laha has deposed in this case by tendering a written examination-in-chief, supported by affidavit, as O.P.W.-1. In his cross-examination, this OPW-1 has claimed that after such operation he

Contd………………..P/5

 

 

                                                                                             ( 5 )

again examined the deceased patient on the next day but he has no papers to show that.  O.P. no. 1 also produced no scrap of paper to show and to prove that after such operation on 3/5/2013, he at all visited the patient and at the time of such crisis period on 4/5/2013, he was available in the nursing home of the O.P. no.2.  His cross-examination reveals that in the relevant year 2013, he was posted at Liluah General Hospital and at that time, he also used to do operation in the nursing home of the O.P.no.2 at Panchberia in the district of Paschim Medinipur.  It also appears from the cause title of the petition of complaint as well as from the written examination-in-chief of O.P.W.1-Dr. Arup Laha that he is a resident of  Hiland Park, Kolkata-700094.  It is to be stated here that Liluah Hospital and the residence of the O.P. in Kolkata is at a distance of about 140 k.m. from the nursing home of the O.P. no.2.  Nowhere in his written version and the written examination-in-chief, this OPW-1 has stated that at the relevant time he was residing here at or near the nursing home of the O.P. no.2.  So the presumption would be that O.P. no.1 did such operation on the deceased patient in the nursing home of the O.P. no.2 at Panchberia, Paschim Medinipur  after coming from Kolkata and after such operation, he went back to his residence in Kolkata and he did not bother to see the condition of her patient who underwent such a serious operation in which case according to another doctor PW-2 Dr. Sarmistha Patra, Gynecologist of a renowned hospital of Kolkata, has opined in her cross-examination that in case of such surgery of a patient, she is  attacked with severe pain in abdomen and respiratory trouble.  It is the settled law that a doctor must assess condition of the patient properly during post-operative stage.  From the above facts and circumstances of the present case, as discussed above, we find that the O.P. doctor did not perform his duties as expected from a professional doctor and he is therefore found to be guilty of medical negligence resulting untimely death of a woman of only 24/25 years old.

In their written version, evidence of OPW-1 as well as at the time of hearing of argument it was contended on behalf of the O.Ps that medical negligence shall be established by the complainant by supporting medical documents and expert opinion and a medical man can not be held negligent unless there is expert evidence to substantiate the allegation of negligence.  As against such submission, it was argued on behalf of the complainant that expert opinion is not necessary in all cases where negligence and deficiency in service of a treating doctor is established from the facts and circumstance of the case.  In support of such contention, Ld. Lawyer for the complainant referred a decision of the Hon’ble N.C.D.R.C. reported in 2013(3) CPR  526 (NC).  We have gone through the said ruling of the Hon’ble Commission and found that it has been held that expert opinion is not necessary in all cases where negligence and deficiency in service of treating doctor is established from facts and circumstances of case.

Contd………………..P/6

 

 

                                                                                      ( 6 )

                   In the present case before us negligence and deficiency  in service on the part of the O.P.-Doctor,  as discussed above, has been well established from  the facts and circumstances of the case. So, in view of the said decision of the Hon’ble Commission expert opinion regarding the negligence of the treating doctor is not necessary at all. We have therefore no hesitations to hold that O.P. No.1-Dr. Arup Laha is guilty of medical  negligence and deficiency in service resulting untimely death of the wife of the  complainant. About the allegation of the deficiency in service on the part of the O.P.-Nursing Home we find nothing to hold that there was any deficiency in service  on the part of O.P. No.2, so long the deceased patient was admitted there.  

There two points are accordingly decided against O.P. No.1-Dr. Arup Laha.

Point No.4.

In view of our above finding in point nos. 1, 2 & 3, the complainant is entitled to get an award of compensation including medical expenses incurred by him  for treatment of his deceased wife against the O.P. No.1.

In his petition of complaint, the complainant has stated that he had to spend a sum of Rs.42,000/- at Annapurna Nursing Home for the charges of doctor,  antitheists  etc. and Rs.35,000/- at Sanjeebani Hospital and a sum of Rs.6,00,000/- at Apollo Gleneagles Hospital besides a sum of Rs.25,000/- towards transportation charge, medicine etc.  Regarding the expenditure of treatment in the Nursing Home of O.P. No.2 and at Sanjeebani Hospital, we find that the complainant produced no bill of such operation in the nursing home of O.P. no.2. But he has stated on affidavit that he had to  spend Rs.42,000/- for such operation at Annapurna Nursing Home towards the charges of doctor etc. It is not the case of O.Ps.  that the said nursing home is a charitable nursing home and such operation on deceased patient  was done free of cost.  Regarding expenditure of treatment at Sanjeebani Hospital and Apollo Gleneagles Hospital, the complainant has filed ‘inpatient bill’ of Rs.5,652/- and Rs.4,16,748.71/- respectively. Apart from that, the complainant had to roam from Midnapore to Sanjeebani Hospital and there from to Apollo Gleneagles Hospital, Kolkata for treatment and admission of his ailing wife and for that purpose he had to spend a lot of money. That apart  the complainant had to bear physical sufferings and  mental  agony for treatment  and for untimely death of his  wife. Death of a person can never be compensated by money but considering the physical suffering, mental agony, untimely  death of wife and the expenditures of  treatment in various hospitals, we think it proper to award an order of compensation of Rs.10,00,000/- against the O.P. no.1. That apart, the complainant is also entitled to get an award of litigation cost.

All  the points are accordingly disposed of.

Contd………………..P/7

 

 

                                                                                           ( 7 )

 

                   In the result, the complainant case stands allowed against O.P. no.1 and dismissed against O.P. no.2.                         

 

                                        Hence, it is,

                                         Ordered,

                                     that the complaint case no.69/2014  allowed on contest against O.P. no.1 with cost and dismissed on contest against O.P. no.2.

                  Complainant do get an award of compensation of Rs.10,00,000/- against O.P. no.1-Dr.Arup Laha and an award of litigation cost Rs.20,000/-.

  All such payments shall be made within a month from this date of order in default 9% interest shall carry over the said amount till realization.

                 Let plain copy of this order be given to the parties free of cost.

Dictated and Corrected by me

        Sd/-B. Pramanik.      Sd/- P.K. Singha         Sd/- S. Sarkar                Sd/-B. Pramanik. 

               President                 Member                     Member                          President

                                                                                                                     District Forum

                                                                                                                 Paschim Medinipur