IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.

                                              CASE No.  CC/172/2014

 Date of Filing:                    Date of Admission:                      Date of Disposal:

   08.12.2014                               08.12.2014                                   21.03.2023  

Complainant:  Minor Swattik Halder (D.O.B 22/09/2014),

                        Represented by Guardian, Father & self

                        Bapi Halder S/O Laltu Halder, Vii. & P.O.

                        Protappur, P.S. Raghunathganj,

                        Dist- Murshidabad,

-Vs-

Opposite Party:  1.Dr. Babul Chandra Dey,

                        C/O M.O Jangipur S.D. Hospital,

                        Residing at P.O. & P.S. Raghunathganj,    

            Dist- Murshidabad

                        Attached with Ashadeep Nursing Home

                        As Gynecologist.

                        2. Tapas Kr. Ghosh.

                        Prop. Of Ashadeep Nursing Home,

            Raghunathganj Bus Stand,

            P.O.  & P.S. Raghunathganj,

            Dist- Murshidabad.

Agent/Advocate for the Complainant                        : Prabir Banerjee.

Agent/Advocate for the Opposite Parties                  : S.S. Dhar

Present:           Sri Ajay Kumar Das…………………………..........President.    

                          Smt. Aloka Bandyopadhyay……………………..Member.

                           Sri. Nityananda Roy…………………………………….Member.

FINAL ORDER

   SMT. ALOKA BANDYOPADHYAY, MEMBER

   This is a complaint under section 12 of the CP Act, 1986.

One Minor Swattik Halder represented by Guardian, Father (here in after referred to as the Complainant) filed the case against Dr. Babul Chandra Dey and Anr. (here in after referred to as the OPs) praying for compensation alleging deficiency in service.

 The sum and substance of the complaint case is as follows:-

The Complainant filed the instant case stating that one Sharmishta Halder wife of Bapi Halder was under the treatment of one gynecologist namely Dr. Babul Chandra Dey. The said Sharmishta Halder was admitted in the Opposite Party’s Hospital on 22.09.2014 as per advice of the said doctor and she gave birth to a male baby through cesarean operation at about 3.00/3.30 P.M on the same day. The child was later on named as Swattik Halder. On 22.09.2014 just after the operation the condition of the mother of the said baby was very serious with acute pain and breathing problem. The said doctor Babul Chandra Dey gave medicine for gas/acidity and assured that the condition of the patient is not at all serious but  on 24.09.2014 at about 1.40 P.M. the said Dr. Babul Chandra Dey informed the complainant that the patient’s kidney is not functioning and referred the patient for better treatment immediately where ICCU and Dialysis arrangement is available and the husband of the said Sharmishta Halder took the patient to Kolkata and she was admitted to Sanjeevani Health Care Services, Kolkata for emergency treatment and thereafter on 05.10.2014 the patient was admitted to Shankarnath Dialysis Centre and Nursing Home, Kolkata-33 and on 09.10.2014 at about 6 P.M. the patient died. Alleging on wrong treatment of Dr. Babul Chandr Dey and unsterilized operation theatre alongwith unhealthy nursing environment and unskilled worker without training and experience of Ashadeep Nursing Home (0P-2) the patient namely Sharmisha Halder died leaving behind her husband and the minor son of 17 days. The complainant filed the instant case against the O.P.s for deficiency of services with a prayer for awarding a sum of Rs. 7 lakh against the O.P.s as reimbursement of cost of treatment and for awarding Rs. 8 lakh for compensation on account of harassment mental agony and legal expenses. 

Defence Case

After due service of the notice the O.P.s appeared by filing W/V contending inter alia that the case is not maintainable as the cesarean operation was successful and there was no complicacy for first 24 hours of operation. The O.P. No. 1 is an experienced doctor having qualification of M.B.B.S., M.S. (Gyno) and neither the O.P. No.1 nor the O.P. No. 2 was   responsible for the cause of renal complication of the patient and as such the O.P.s pray for dismissal of the case.  

Points for decision

1. Is the Complainant a consumer under the provision of the CP Act, 1986?

2. Have the OPs any deficiency in service, as alleged?

3. Is the Complainant entitled to get any relief, as prayed for?

Decision with Reasons:

Point no. 1

This point is not challenged either at the written version or at the time of hearing of argument. Moreover, the facts and circumstances suggest that the Complainant is a consumer. This point is decided accordingly in favour of the Complainant.

Point no. 2 & 3

All these points are taken up together for the sake of convenience and brevity of discussion.

One Sharmishta Halder gave birth to a male child on 22.09.2014 at about 3.30 P.M. through caesarean operation by the Dr. Babul Chandra Dey. Just after the said operation the condition of the patient was very serious with acute pain and breathing problem. On reporting of this problem Doctor prescribed medicine for gas/acidity but the condition of the patient had not improved. At about 1.30 P.M. Doctor informed Shri Bapi Halder husband of the patient that her kidney was not properly working and for better treatment she was referred to higher centre where ICCU and Dialysis arrangement is available. The patient was admitted to Sanjeevani Health Care Services, Kolkata-16 and after emergency treatment the doctor of the said Nursing Home informed that they have nothing to do. So, on 05.10.2014 for last hope the patient was admitted to Shankarnath Dialysis Centre and Nursing Home, Kolkata-33 but on 09.10.2014 at about 6 P.M. said patient died in this Nursing Home leaving behind her 17 days new born baby.

As per Written Version the said Sharmistha Halder was under the treatment of O.P. 1 and she had normal blood report and USG report regarding fetal body movements and cardiac activities are noted well during scanning on 20.07.2014. But due to less fatal movement she had undergone Cesarean Section on 22.09.2014 at about 3 P.M. at Ashadeep Nursing Home with proper preoperative antibiotic prophylaxis and the O.P.s took all precautionary measures for the treatment of the patient and the operation was successful. First 24 hours after the operation the situation was uneventful but at about 3.00 P.M. on 23.09.2014 the patient complained of Epigastic Pain. In such situation antacids were applied but the pain was not relieved and the patient complained of chest pain and the said doctor (O.P.1) referred the patient to Physician Dr. Arun Sarkar and call was given to the Anesthetist. At about 10 P.M. the patient complained of respiratory difficulty and diminished urine output and as the problem continued the patient was referred to higher centre on 24.09.2014, as to solve renal problem early initiation of treatment is most important. The patient party took the patient to Kolkata and she was admitted to Sanjeevani Nursing Home at about 4.30 P.M. i.e. after 15 hours. The eco report dated 27.09.2014 shows impairment of kidney function resulting in retention of nitrogenous and other waste products normally cleared by the Kidney. Only post mortem report can confirm the cause of renal injury complication.

Ld. Advocate for the Complainant submits that as per the   USG report on 20.09.2014 the fetal body movement was normal then what happened to form the opinion for Caesarean operation. He further stated that if there was no infrastructure to treat the patient in complication then why the patient was admitted. Though the doctor stated that he had done his best but the root of crisis started within 24 hours of operation and the patient was not discharged normally. Then how can we draw the conclusion that the operation was successful.

It is not out of the place to mention here that the minor complainant has filed evidence on affidavit through his father but after getting due opportunity no cross examination has been done by the O.P.s. So, the evidence of the Complainant remains unchallenged and its stand as it is. So, it is clearly found that the O.P.s supported the Complainant on material point and there is no reason to disbelieve the witness i.e., the father of the minor Complainant.  

On careful perusal medical record during the course of treatment the patient, eventually, breathed last on 09/10/14. The death certificate issued by Shankarnath Dialysis Centre and Nursing Home revealed that the death was due cardiorespiratory failure in a case of past cesarean septicemia with acute Renal failure with ARDS and Disseminated intravascular coagnlopathy. 

In the present case the treatment rendered by the O.P.s do not show that any pre investigating test were performed to check whether antiseptic measures were taken as it is essential to treat a patient having cesarean operation as there is chance of septicemia in such case. The O.P.s had not filed any evidence to show that the operation theatre of the O.P.2 was properly sterilized.

The Hon’ble Apex Court in the case of Nizam Institute of Medical Science Vs. Parasnath S. Dhananka & Ors, III (2010) SLT 734 = II (2009) CPJ 61 (SC) = 2009 (6) SCC 1 held that ‘once the complainant had discharged initial burden, it was incumbent upon hospital authorities to prove that they had done their duty without any negligence on their part which they have failed to do”.

In this present case this Commission by an order bearing no. 41 dated 27.08.2019 sent the documents of Ashadip Nursing Home regarding treatment of the said deceased Sharmishta Halder to NRS Medical College and Hospital, Kolkata “to give expert opinion as to whether there was any negligence add/ or deficiency in service on the part of Ashadeep Nursing Home and/ or the attending doctor…………..”

On this point, the Ld. Advocate for the O.P.s submits that in this present case the expert committee consisting of the Professor & Head Dr. Chandana Das Department of Gynae. & Obts NRSMCH. KOL and Professor Dr. Pinaki Mukhopadhyay Professor & Head Dept. of Nephrology N.R.S.M.C. & Hospital had given their expert opinion which is lying with the record. The expert opinion, jointly signed by these two doctors, are as follows: “Mrs. Sharmistha Halder, 18 years old lady, wife of Bapi Halder was admitted in Ashadeep Nursing Home at Raghunathganj, Murshidabad on 22/04/2014 at 11.10 A.M. under Dr. Babul Chandra Dey with the complaint of no fetal movement for which she underwent emergency LSCS on 22/04/2014 at 3.00 P.M. ( Indication- FM with Fetal distress). She developed hypotension and renal failure for which she had been consulted with physician on 23/04/2014 at 10.00 P.M. Blood report (24/04/2014) shows that patient had total count 24,900/cmm. Creatinine 5.2 mg/dl. She was referred to higher centre on 24/04/2014 at 1.45 A.M. for better management (Indication-LVF with Acute renal failure). On further evaluation, She developed septicaemia and worsening renal failure. She breathed her last on 09/10/2014 at 6.00 P.M. in Sankarnath Dialysis Centre and Nusing Home (Cause of death: Cardio respiratory failure in a case of post caesarean septicaemia with acute renal failure, ARDS and DIC).

With this background and after thorough evaluation of papers given to us, Dr. Babul Chandra Dey treated the patient as per protocol and situation demanded”.

The Ld. Advocate for the Complainant drew our attention to the fact that expert committee was silent regarding the negligence of the OPs. As per treatment sheet it was possible for the expert committee to form opinion whether the instrument used by the said doctor was sterilized or not and the operation theatre was properly sterilized or not. It is the duty of the hospital authority as well as treating doctor to look into this matter whether the instruments was sterilized, operation theatre was properly clean and the environment of the Nursing Home was not unhealthy and the employees of the Nursing Home were not without training and not unskilled.

It is held by the Hon’ble Apex Court in Malay Kumar Ganguly  Vs. Dr. Sukumar Mukherjee & Ors. (2009) 9SCC 221

“an expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case.

The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to face cross-examination. This Court in Haji Mohammad Ekramul Haq v. State of WB concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons.”

It would not be out of place to mention that expert opinion is not a substantive piece of evidence and it is corroborative in nature. Expert evidence is not necessary to have opinion of expert in each and every case of medical negligence. In case of medical negligence one initial burden has been discharged by Complainant by making a case of negligence on part of hospital or doctor concern, onus then shifts on hospital or to attending doctors and it is for hospital to satisfy court that there was no lack of care or diligence. Legal maxim- Res ipsa loquitur- that means the thing speaks for itself. This maxim force to benefit to plaintiff as he can use circumstantial evidence to establish negligence. It shift burden of proof on defendant.

The Principle of res ipsa loquitur is explained in Ashish Kumar Majumdar v/s Aishi Ram Batra Charitable Hospital Trust II (2014) CPJ-V (SC) in para 8 & 9 of this judgement Hon’ble Supreme Court has held “ (8) the maxim res ipsa Loquitur in its classic form has been stated by Erle C.J. in Escort V/S London and Katherene Docks Co. (1885) 3 H&C 59:-

‘……………Where the thing is shown to be under the management of the defendant or its servant, and the accident is such as in the ordinary course of things doesn’t happen if those who have management use proper care, it affords reasonable evidence of explanation by the defendants, that the accident arose from want of care.’

The maxim applies to a case in which certain facts proved by the plaintiff, by itself, would call for an explanation from defendant without the plaintiff having to allege and prove any specific act or omission of defendant.

In Shaym Sundar V/S State of Rajasthan 1947 ACJ 296 (SC) it has been explained that the principal function of maxim is to prevent injustice which would result if the plaintiff was invariably required to prove the precise cause of accident when the relevant facts are unknown to him but are within the knowledge of defendant. It apply to a situation when the mere happening of the accident is more consistent with the negligence of the defendant than with other causes”

The basic point for our consideration is whether during treatment given to the mother of the complainant, the O.P.s  had committed any negligence or not.

Let us examine in the light of law laid down by the Hon’ble Supreme Court whether there was breach of duty by the Opposite Party and they were guilty of medical negligence or not?

The Duty of care has been discussed in several judgments on medical negligence of Hon’ble Supreme Court and other courts world-wide. The Hon’ble Supreme Court in Kusum Sharma and others v. Batra Hospital Medical Research Centre & Others, (2010) 3 SCC 480, discussed the breach of expected duty of care from the doctor, if not rendered appropriately, it would amount to negligence.

In two landmark judgments of Hon’ble Supreme Court in Dr. Laxamn Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr., AIR 1969 SC 128, and A.S. Mittal vs. State of U.P., AIR 1989 SC 1570, have laid down certain duties of the doctor. The Doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his Doctor.

In Savita Garg (Smt.) v. Director, National Heart Institute, VI (2004) SLT385=IV (2004) CPJ40 (SC)=(2004) 8SCC56, is applicable in this case. The Apex Court observed that:

‘’Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in the case the burden lies on the hospital and the doctor concerned who treated that patient, to show that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing the doctor who treated the patient in defence to substantiate their allegation that there was no negligence. It is the hospital which engages the treating doctor, thereafter it is their responsibility. The burden is greater on the institution/hospital than that on the claimant. In any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The institution is a private body and it is responsible to provide efficient service and if in discharge of its efficient service there are a couple of weak links which have caused damage to the patient, then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.’’

In this context the Ld. Counsel for the OPs stated that reference can be made to the decision of the Hon’ble National Commission in S.S. Ghosh & Anr. Vs. Shadeo Prasad Anjana Sahadeo Bhuiya ( 2017) CPJ 343 (NC), where in it has been laid down – Medical negligence—Caesarean delivery—Post surgical complications—Death of patient—neither Sai Hospital nor Appollo Hospital impleaded as a party, nor any treatment record of these hospitals has been placed on record by complainant to show that there was no deficiency on part of these two hospitals and complainant’s daughter died only on account of medical negligence on part of Ops. 

On perusal of the records and medical report I find that the treatment provided by those two hospitals namely Sanjeevani Health Care Services and Shankarnath Dialysis Centre and Nursing Home do not come under medical negligence as because the symptom of septicemia occurred when the patient was in the O.P.s Hospital and they referred the patient to other hospitals for treatment. So in this case these two hospitals namely Sanjeevani Health Care Services and Shankarnath Dialysis Centre and Nursing Home are not necessary party.

The Ld. Advocate for the O.P.s also placed reliance on the citation of Kamaljit kaur Vs. Ludhiana Kidney Hospital Ltd & Anr. I (2008) CPJ 231. The Hon’ble UTCDRC, Chandigarh held in Para-13 that “………………there is no evidence that the left kidney of complainant was sound before treatment which was given by OP No. 2 from 5.2.2000 to 7.2.2000 and it was damaged after treatment. In the absence of this evidence, OPs cannot be fastened with negligence and no compensation can be awarded.” But the fact of this case is different from the fact of the present case. So, it does not help the O.P.s at all.

Further it would not be out of place to mention here that as per medical literature sepsis can develop after any type of surgery it can take upto 30 days for symptoms to develop. The said Sharmistha Halder was very serious with acute pain and breathing problem along with urinal problem within 24 hours of her said cesarean operation and there was no arrangement in the Ashadeep Nursing Home to treat the patient, when such type of crisis arises.

The Hon’ble Apex Court in A.S.Mittal & Anr. Vs. State of UP & Ors (1989) 3 SCR 241 observed:

The standard of cleanliness and hygiene in public hospital unfortunately leaves greatly to be desired. The maintenance of sterilize aseptic conditions in hospital to prevent cross infection should be ordinarily a routine maintenance of hospitals.

While deliberating on the subject the Apex Court approvingly referred to the observation of the street on Torts which shows that the doctrine of res ipsa loquitur is attracted : “ …..where an unexplained accident happens from a thing under the control of the defendant and medical and other evidence shows that such accident would not happen if proper care was taken, there is at least evidence of negligence.”

Ld. Counsel for the O.P.s vehemently argued and brought our attention to the different prescription of medical, the evidence of record and the expert opinion does not support the case of the complainant.

In the instant case we find that there is a direct nexus between septicemia and the treatment there on based on it. The said Sharmistha Halder died due to Cardiorespiratory failure in a case of Post Cesarean Septicemia with Acute Renal failure with ARDS and Disseminated intravascular Coagulopathy.

The point to be noted is that the above fact is admitted. However, we perused the death certificate issued by Shankarnath Dialysis Centre and Nursing Home and find that the above fact is correct and there are sufficient materials to satisfy the Complainant case to the effect that the O.P.s had been negligent in treating patient and had failed to diagnose the post operative complications of the Complainant’s mother.

It would not be out of place to mention here that the medical board/ expert committee has given a finding only based on the statement/documents produced by the treating doctor and they were not present at the time of crisis situation.

Thereafter, we hold the treating doctors negligent for failure of duty of care. This view is fortified from the decision of Hon’ble Supreme Court in the case of Achutrao Haribhau Khodwa Vs. State of Maharashtra, IV (2006) CPJ 8(SC) 1996 (SLT Soft) 1000= (1996) 2 SCC 634, their Lordships observed that if the doctor has taken proper precautions and despite that if the patient does not survive then the court should be very slow in attributing negligence on the part of the doctor.

After hearing both the sides we perused the materials on record and considering the findings of the land mark judgments, we are of the view that though the O.P.s do have required professional skilled and competence but their conduct failed below the standards of care, required from a reasonably competent doctor at the time of and after the cesarean operation. It is also to be mentioned here that cesarean operation was done by the O.P. 1 in the nursing home of the O.P. 2 where the facility of I.C.C.U. was not available. Thus, there is clear cut negligence on the part of the O.P.s.

Therefore, holdings O.P.s guilty for deficiency of service we direct both the O.P.s to pay the Complainant jointly and severally as the child was deprived of maternal care love and affection and the husband lost consortium. Thus we are of the considered view that the Complainant for the ends of justice will get Rs. 1000000/- ( Ten Lakh) only. The father of the complainant i.e., Bapi Halder shall keep Rs. 1000000/- ( Ten Lakh) in fixed deposit in any nationalized bank in the name of minor Swattik Halder (complainant) till he attain the age of 18 years. The father of the Complainant may draw periodic interest for the welfare and expenses of his minor son.

Reasons for delay

The Case was filed on 08.12.2014 and admitted on 08.12.2014. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act, 1986. Delay in disposal of the case has also been explained in the day to day orders.

In the result, the Consumer case is allowed.

 Fees paid are correct. Hence, it is                                                            

Ordered

that the complaint Case No. CC/172/2014 be and the same is allowed on contest against the O.P.s.

The O.P.s are jointly and severely liable to pay compensation amounting to Rs. Rs. 1000000/-( Ten Lakh) only to the Complainant for medical negligence.

The O.P.s are directed to pay Rs. 1000000/-( Ten Lakh) only to the father of the Complainant ( as the Complainant is minor) within 60 days from the date of passing of this order and the father of the complainant i.e., Bapi Halder is directed to keep Rs. 1000000/- ( Ten Lakh) in fixed deposit in any nationalized bank in the name of minor Swattik Halder (complainant) till he attain the age of 18 years. The father of the Complainant may draw periodic interest for the welfare and expenses of his minor son.  

Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand  /by post under proper acknowledgment  as per rules, for information and necessary action.

The Final Order will also be available in the following Website:

    confonet.nic.in

Dictated & corrected by me.

Member

 Member                                                            Member                                        President.