Hon’ble Mrs. Rumpa Mandal, Member.

The alleged medical negligence has dragged the Complainant, Smt. Ankita Barman who was a resident of Village & P.O. Balarampur, Dist- Cooch Behar to this Commission for redressal of her grievance. The complaint petition states that the Complainant visited the chamber of Dr. Bhaskar Jyoti Mani, MBBS, DGO, M.S. (Gynae and OBS) at R.R.N. Road, Cooch Behar, P.O. & Dist: Cooch Behar (OP-1) on 27-10-16 for a check up to ensure her pregnancy. Then she continued her treatment with the O.P-1 for which she visited the chamber of the OP-1 on 18-11-16, 28-11-16, 29-12-16, 27-01-17, 26-02-17 and 27-05-17. On the last occasion, the OP-1 advised her to get admitted in Poddar Seva Sadan, Sunity Road, Cooch Behar (OP-2) on 09-07-15 at 7-30 A.M. with information to be ready for caesarean operation. on 07-06-17 the Complainant was brought to the OP-2 nursing home with immense labour pain where the OP-1 examined her minutely and advised her to get admitted in the OP-2 hospital immediately. Thereafter, the Complainant gave birth to a male child on 07-06-17 at 6-50 A.M. by caesarean operation by the OP-1 and both baby and mother were shifted to bed normally. That after a while the progenitress began to feel discomfort when the Complainant and her family members tried to draw the attention of the attending nurse and nursing home authority for calling the OP-1 doctor but nobody paid heed to their word. Thus, the ill Complainant remained unattended by any doctor or nursing staff for about eleven hours which proved the negligence in taking care of the Complainant. At 6-10 P.M. the OP-1 came to pay a visit to the Complainant after LSCS operation and diagnosed the Complainant with “left sided hemiparesis facial paresis”. Therefore, no Resident Medical Officer (in short RMO) attended the Complainant in the period from 6-50 Am to 6-10 Pm despite repeated request by the patient party. Thereafter, at 6-40 Pm on 07-06-17 the OP-1 doctor advised to take opinion of physician but no physician attended the Complainant. Thus, the OP-1 referred the Complainant to higher centre for better management. Forthwith, the Complainant was shifted from the OP-2 hospital to Cooch Behar Mission Hospital (P) Ltd, Cooch Behar on payment of nursing home bill. The Complainant got admitted there under Dr. Nirmal Palit, Neurosurgeon and was discharged from there on 08-06-17 with diagnosis "Right Frontal large bleed, (venous hemorrhagic infarct) and was advised for shifting the Complainant from Cooch Behar Mission Hospital to Siliguri for better management. Again, the Complainant was shifted from Cooch Behar Mission Hospital to Siliguri Neotia Getwell Health Centre where she got admitted under Dr. P. D. Bharali, MS, MCH (Neuro Surgeon) on 08-06-17. Dr. Bharali diagnosed the Complainant with “Post LSCS seizure disorder? Right Frontal ICH with mass effect and midline shift” but she was again shifted to Medica North Bengal Clinic at Siliguri on 08.06.17 to save her life where she was admitted under Dr. Rahul Prasad, MS, MCH (Neuro Surgery) whose final diagnosis was as “Post Partum Large right posterior frontal ICH(?) Venous infarct”. Dr. Prassad had given the treatment of operative right fronto temporo parietal decompressive hemicraniectomy and evacuation of haematoma and augmentation duroplasty using C-patch. Thus she was discharged from the hospital on 22-06-17 at 6 Pm and came round from awkward condition by the treatment of Dr. Prasad. Later, she again got admitted in the said hospital from 04-09-17 to 08-09-17 and paid nursing home charge Rs. 4,27,538/-. It was categorically alleged that the O.Ps failed to follow the standards of medical care i.e. they did not take any pre-operative and post operative care of the said surgery. They also failed to use reasonable degree of skill, care, Knowledge and prudent while treating the patient. So, they were liable for medical negligence as their conduct fell below the level of reasonable care. They had not given proper advice and proper treatment and it amounted to blatant medical negligence and deficiency in service. That by such medical negligence and deficiency in service on the part of the OP-1 & OP-2, the Complainant suffered irreparable loss, mental pain, agony and huge monetary loss. The cause of action of the present case arose on 07.06.17 when caesarean operation was performed by the OP-1 and O.Ps did not take pre-operative and post operative care of the said surgery and still continued. Therefore, the Complainant prayed to the Commission for a direction to the O.Ps to pay a sum of Rs. 2 Lakhs for medical negligence and deficiency in service, Rs. 4,61,930/- for all nursing home charges, Rs. 1 Lakh for miscellaneous expenditure, Rs. 2 Lakhs for mental pain, agony and harassment and Rs. 15,000/- towards cost of proceedings.

Summon were served upon the O.Ps. The OP-1 contested the case by filling written version, evidence on affidavit and written argument. The OP-2 contested the case by filling written version, evidence on affidavit only. The case was decided to be heard ex-parte against OP-2 on 12-07-18 which was vacated on 19-02-20 but again the case was declared ex-parte against the OP-2 vide order No- 40 dated 07-12-22. Thus, the case proceeded with Complainant and OP-1.

The OP-1 in his defence stated that the present case was bad for non-joinder and mis-joinder of parties. That the other doctors and diagnostic centers where the Complainant was treated and had undergone test should have been made parties to this case and without impleading them the case could not proceed. That the OP-1, Dr. Bhaskar Jyoti Mani is a Gynecologist having DGO, MS (Gynac & obs) degree and vast experience in that field and whatever allegation brought against him in respect of conducting the treatment and Caesarean delivery (LSCS) of the Complainant are denied by the OP-1. The OP-1 also asserted that one Smt. Ankita Dutta aged about 28 years was brought to his chamber on 27-10-16 being conceived. He advised the patient for histopathological tests and prescribed some medicine on examination clinically. Thereafter, the patient (Complainant) came to his chamber on several occasions for check up when he treated her with due care and diligence and also advised for some pathological tests and medicine as required at those point of time from, a medical point of view.

That on 27-05-17 when the OP-1 examined the Complainant clinically, he prescribed some medicines and also advised her to get the LSCS done in between 06-06-17 and 10-06-17. Thus, the Complainant and her family members choose 09-06-17 as date for LSCS procedure for which the OP-1 advised her to get admitted in nursing home on 09-06-17 but he inadvertently put the date as 09-07-15 in the prescription which was nothing but a slip of pen. On 07-06-17 the Complainant was brought to the OP-1 in an emergency condition when on examination clinically the OP-1 advised her to get admitted in the hospital immediately. Accordingly, she was admitted in OP-2 hospital and the OP-1 preformed the LSCS procedure taking all possible medical care which was uneventful and the Complainant gave birth to a healthy male child at 6.50 Pm. That all sorts of pre and post operative care of both mother and the new born were taken and there was no negligence or carelessness on the part of the OP-1 or the OP-2 in treating the Complainant. As a result, both mother and new born baby had an uneventful recovery which caused both of them shifted to bed normally. Therefore, the OP-1 had to perform the LSCS procedure without prior appointment and he was busy with his scheduled job afterwards leaving the Complainant and her new born stable. As there was no issue and everything was normal so the OP-1 did not give any separate advice in BHT. At about 10.20 Pm, the OP-1 received a call from the on duty sister of the OP-2 nursing home stating that the Complainant had an episode of convulsion having BP 160/180 mm Hg with pulse rate 90. Taking all these into consideration the OP-1 advised the sister to push injection Magnesium Sulphate and capsule Nifedipine to control the B/P and convulsion which was standard protocol of treatment. After pushing such injection and administering the capsule the B/P of the Complainant came down to 130/90 mm Hg at about 11-00 Am. The OP-1 took information of the Complainant over phone wherein the B/P of the Complainant was under control throughout the day and she was stable. Thereafter, the OP-1 went to the OP-2 nursing home for his routine round at 6-10 Pm and examined the Complainant throughly when he noticed some weakness on her left side of the body which he suspected to be a case of cerebrovascular accident( in short CVA) and sought opinion of physician, Dr. D. Halder and advised to administer injection Mannitol 100 ML stat. Forthwith Dr. D. Halder came and examined the Complainant and advised to administer the same injection which was already administered by then. One Dr. Pampa Barman who was anesthetist had examined the complainant on being called before Dr. Halder arrived and had advised injection Mannitol and other medication and also advised for opinion of a physician. On examination of the Complainant Dr. D. Halder advised for referral to a higher centre for better management. Therefore, the OP-1 took every care to treat the Complainant which was evident from the fact that he sought for physician's opinion suspecting the case to be a CVA and forthwith physician Dr. D. Halder was seen by her and referred the patient to a higher centre having Neurology Department as the Complainant developed CVA and the OP-2 nursing home had no such infrastructure to treat CVA. Thereafter, the Complainant got admitted in Cooch Behar Mission Hospital out of her own volition on 07-06-17 but payment of bill Rs.3573/- was done on 05.07.17 which was alleged to be Rs. 4123/-. The OP-1 doctor forwent his professional fee which made the bill reduced to an extent keeping the condition of the Complainant in mind. The OP-1 also asserted that he was not aware of any further treatment of the Complainant which he came to know from the annexures submitted by the Complainant. It was also evident from the annexures that the patient's party was very impatient in the treatment of the Complainant. The example of this was not giving consent for the MR Angiography test advised by Dr. P. D. Bharali and taking leave against medical advice of the said doctor. The Ld. Advocate for the OP-1 argued that the Complainant had never pregnancy induced hypertension (in short PIH) that needed treatment. As per standard text book of medical science mild PIH does not require treatment and there is no single screening test that is reliable and cost effective for predicting preeclampsia. Even the Complainant had a normal B/P in post operative stage and was conscious all along. So, the OP-1 cannot be held liable for the incident that happened with the Complainant and there was no medical negligence and deficiency in service as alleged in treating the patient in question nor was there any lack of care and skill as alleged by the Complainant. Therefore, the entire allegation as made in different paragraphs of the complaint petition are false. The Complainant with false allegation projected the case and claimed huge compensation just for illegal bargain So, the complaint petition is liable to be dismissed with cost and the Complainant is not entitled to get any relief whatsoever.

The OP-2 in his defence plea stated that the complaint case is not  maintainable as it is bad for non-joinder and mis-joinder of parties. Moreover, the allegation brought against the OP-2 are false and baseless because he provides all equipment and infrastructure available to the Complainant and followed the advice of the attending doctors and supplied the medicine prescribed by them. Therefore, the OP-2 had no negligence or unfair trade practice towards the Complainant and the complaint petition is liable to be dismissed with cost as such the Complainant is not entitled to get any relief as prayed for in the complaint petition.

Perused the pleading, written version, evidence on affidavit, written argument and documents in the ease record. Heard the arguments of both parties at length. Having Considered all these, the Commission comes to a conclusion that following points are required to be discussed to adjudicate the instant case properly and effectively.

Points for Determination

(1) Whether there was any medical negligence or unfair trade practice on the part of the O.Ps?

(2) Whether the Complainant is entitled to get any relief as prayed for in the complaint petition?

Decision with reasons

Point Nos. 1 & 2.

Both points are taken up together as they are interlinked with each other and for brevity of discussion. The Complainant, Smt. Ankita Dutta was checked by the O.P. No.1 Dr. Bhaskar Jyoti Mani on 27-10-16 for the first time to ensure her pregnancy (Annexure-A). On being ensured of the pregnancy she was advised to go for a monthly check up which she followed until 27-05-17 (Annexure-A1 to A-5). On 27-05-17 she was advised to get admitted at Poddar Seva Sadan for LSCS in between 06-06-17 to 10-06-17 by the OP-1 from where they chose 09-06-17 as the probable date for LSCS. But she was brought to the OP-2 hospital on 07-06-17 with immense labour pain and she gave birth to a male baby by LSCS procedure by the OP-1 doctor at 6-50Am (Annexure-B). The said procedure was uneventful which prompted the Complainant and her new born to be shifted to general bed of the hospital. At 10.25 Am on the same day the Complainant experienced a convulsion with higher B/P 160/100 mm Hg and pulse rate 90 which was intimated to the OP-1 over mobile phone. Forthwith, the OP-1 advised the staff nurse to administer Magnesium Sulphate injection and capsule Nifedipine for corrective measure of convulsion and BP which is the standard protocol for such treatment. Thus, the B/P of the Complainant came down to 130/90 mm Hg after administering the same medication at about 11-00 Am which was later stable throughout day. Thereafter, the OP-1 again examined her thoroughly at 6-10 Pm when B/P was 130/80 mm Hg and noticed left sided hemiparesis and facial paresis left side which he suspected to be a case of cerebro- vascular accident (in short CVA) for which he referred to physician for opinion (Annexure-C). Again after lapse of 30 minutes he examined the Complainant and noticed weakness on her left upper and lower limb when B/P was 140/90 mm Hg and she was conscious and drowsy. The OP-1 prescribed some medicine alongwith injection Mannitol 100 ml stat and referred to physician for opinion. Forthwith Physician Dr. D. Haldar came and examined the Complainant who also advised the same injection which was already administered on the Complainant Dr. D. Halder also referred the Complainant to higher centre for better management. Thus, the allegation of no physician attended the Complainant and hence doctor referred the Complainant to higher centre was false. The Complainant was attended by the physician and he referred her to a centre where there was facilities of neurological treatment as they both (the OP-1 & Dr. Halder) suspected to be a case of CVA. The Complainant got admitted in Cooch Behar Mission Hospital under Dr. Nirmal Palit, Neuro Surgeon who investigated for CT scan of brain which gave impression “Right frontal large bleed (? Venous hemorrhaicinfarct)”. Dr. Palit also advised for shifting the Complainant from Cooch Behar Mission Hospital to Siliguri after his final diagnosis for better management(Annexure-D). She was then admitted to Neotia Getwel Healthcare Centre at Siliguri under Dr. P.D. Bharali M.S., MCH (Neuro Surgery) who diagnosed her with post LSCS seizure disorder and? Right Frontal ICH with mass effect and midline shift and advised for  MR Angiography test for which the Complainant’s NOK did not give consent (Annexure-E). Then the Complainant’s family members took leave against medical advice and got her admitted in Medica North Bengal Clinic under Dr. Rahul Prasad, MS, MCH who diagnosed the Complainant with “Post partum Large Right Posterior Frontal ICH? Venous Infarct” and right fronto temporo parietal decompressive hemicraniectomy, evacuation of haematoma and augmentation duroplasty using C-patch treatment was given on 09.06.17 in (Annexure-F) the period from 08.06.17 to 22.06.17. Again she was admitted in the Medica North Bengal Clinic under Dr. Rahul Prasad from 04.09.17 to 08.09.17 when cranioplasty with own bone flap done on 05.09.17 (Annexure-F/1).

Ld. Advocate for the Complainant cited one case law of Hon’ble National Consumers Disputes Redressal Commission having Appeal No. 161 of 2008 in a case of Dr. Sunil Bhandari Vs Ku. Pooja kori & others wherein the Hon’ble National Commission observed that the appellant doctor by not being available to the patient post surgery and not giving the required written instructions of what is to be done in case of any complications or untoward developments was undoubtedly guilty of medical negligence by not providing reasonable care and caution which was required of him as a good medical professional. Thus, the award of compensation against the appellant doctor was upheld by the Apex Commission. But this argument does not hold good here because the OP-1 doctor was available over phone and instructed the staff nurse to administer injection and capsule as a corrective measures. Later he examined the Complainant and suspecting it to be a case of CVA he referred her to physician for opinion who later referred to a higher centre having neurological facilities available. The Ld. Advocate for the Complainant referred another case law of Hon’ble National Commission reported in III (2023) CPJ 453NC in a case of Parikshit Dalal and others Vs Santosh Hospital and 11 others Consumer Protection Act, 1986- Section 2(1)(g), 14(1)(d), 21(a) (i) - Medical negligence- Caesareab sectuib (LSCS) delivery- death during surgery of baby and mother- deficiency in service- It is failure of medical practitioners to exercise certain acts or omission while discharging their duties with respect to their patients could not be saved- death of patient and her foetus was due to negligence of hospital and OP-3 -Prima facie no negligence of OP-2 is found who did not start any operative procedure (Caesarean) - During resuscitation, prime aim was to save mother therefore team of doctors were focused on resuscitation - In addition to trauma, umbilical cord was around the neck of foetus caused death - Baby could not be saved- It was not negligence of OP-2 or team in OT- Patient was under custody of doctors and OT staff but she sustained left SI joint fracture and suffered hemorrhagic shook resulted into death of patient - From Post mortem findings, death was not due to anaphylactic reaction- OP-3 anesthetist failed to establish why there was large amount of peritoneal/pelvic hemorrhage, whether it was due to anaphylactic reaction- OP-1 hospital cannot escape from its vicarious liability for medical negligence that has been meted out- Hospital is required to compensate for medical negligence and mental agony sustained by patient's family members - Glaring deficiencies are visible from hospital (OP-1)-  Anesthetist and assisting teams in OT have failed in their duty of care-  It was very unfortunate and sad to note that two precious lives were lost, mother and also child - To meet ends of justice, lump sum compensation of Rs. 1.6 Crore to be just and adequate - OP-1 hospital shall pay Rs. 1.5 Crore and OP-3 anesthetist shall pay Rs. 10 Lakhs to the Complainant - No negligence or failure of duty of care from Gynecologist, Thus OP-2 is exonerated – Rs. 2 Lakhs awarded towards cost of litigation.

In the subject case, the Complainant underwent the surgical procedure (LSCS) and gave birth to a healthy male child and the procedure was uneventful for which both mother and the new born were shifted to general bed. But after lapse of about three hours, the Complainant had an episode of convulsion which the OP-1 came to know from the staff nurse over phone as he was busy with other patient at that point of time. Forthwith the OP-1 advised the staff nurse to administer Magnesium Sulphate injection and capsule nifedipine to control convulsion and B/P. Thus, the B/P of the Complainant came down to 130/90 mm Hg after administering the same medication which was later stable throughout the day. Thereafter the OP-1 examined the Complainant throughly at 6-10 Pm when B/P was 130/80 mm Hg and noticed left sided hemiperesis and facial peresis left side which he suspected to be a case of CVA for which he referred her to a physician for opinion. Again after lapse of 30 minutes, the OP-1 examined her and noticed weakness on her left upper and lower limb when B/P was 140/90 mm Hg and she was conscious and drowsy. The OP-1 prescribed some medicine along with injection Mannitol 100 ml stat and referred her to physician for opinion. Forthwith physician Dr. D. Halder came and examined her who also advised the same injection which was already administered on her. Dr. D. Halder also referred her to a higher centre having neurology facility for better management as the OP-2 hospital had no such infrastructures to treat that type of patient. As the Complainant developed CVA, then it was the task of the neurologist to take care of such patient. Then main causes of CVA include:-

(i) High blood pressure during pregnancy which is like a stress test and can strain the heart and blood vessels. Thus, having high blood pressure during pregnancy is the leading cause of stroke in pregnant women or women who have recently given birth.

(ii) Preeclampsia:- External icon is a more severe type of high blood pressure during pregnancy. Preeclampsia can cause vision problems, headache, Swelling in hands and face, premature delivery and a baby with low birth weight. At its most severe, preeclampsia causes seizures (eclampsia) and lead to stroke.

(iii) Gestational diabetes:- Some women suddenly develop problems with blood sugar during pregnancy, a condition called gestational diabetes.

(iv) Blood clots:- Pregnancy makes the blood more likely to clot which can lead to Stroke. This increased risk for clotting happens in part because swelling from pregnancy can reduce blood flow to the lower legs. When blood does not circulate well, it is more likely to clot. During late pregnancy, the body also makes more of a substance that helps blood clot. This helps protect women from bleeding too much when they give birth but it also raises the risk for stroke. Eclamapsia is defined as the onset of seizures and/or unexplained coma during pregnancy or postpartum in patients with sign and symptoms of preeclampsia.The diagnosis of eclampsia is straight forward in the presence of hypertension, proteinuria, generalized edema and convulsions. However, these patients could present with a broad spectrum of signs, ranging from severe hypertension, severe proteinuria and generalized edema, to absent or mild hypertension, absent proteinuria and no edema.

From the Annexure- A1 & A5 it is evident that the Complainant had no pregnancy induced hypertension (in short PIH). In the monthly check up of the Complainant there no hypertension recorded in the prescription. In the evidence on affidavit of the Complainant it is mentioned that she had PIH and was having agenesis of corpus callosum (In short ACC) during admission which is a birth defect in the brain. In ACC, a bundle of nerve connecting the left and right side of the brain is either missing or partially missing the symptom of which range from minor intelligence issues to developmental delays and seizures. As there was no PIH during course of treatment of the Complainant as is evident from different annexures so the seizure after LSCS procedure may be due to ACC or blood clots which is likely to happen due to production more of a substance that helps blood clot during late pregnancy and thus raises the risk for stroke(CVA). The standard book of medical science such as Queenan's Management of high risk Pregnancy suggests that eclampsia patient could present with a broad spectrum of signs, ranging from severe hypertension, severe proteinuria and general edema to absent or mild hypertension, absent proteinuria and no edema. On the other hand, at present, there is no single screening test that is considered reliable and cost effective for predicting preeclampsia. Thus, the OP-1 doctor had nothing to do with the seizure that happened postpartum. The treatment given by him was all along up to the mark for which the Complainant could deliver a healthy child by LSCS procedure which was uneventful and she was shifted to general bed after surgery.

Ld. Advocate for the OP-1 referred a case law of Hon'ble Supreme Court of India in a case of Dr. Mrs. Chanda Raui Akhonri and others Vs Dr. M.A. Me ThuseThupathi and others wherein the Apex Court observed that the medical practitioner can only be held liable where his conduct fell below that of the standards of reasonably competent practitioner in his field.

Having considered all these, the Commission comes to a conclusion that the OP-1 cannot be held liable as there was no medical negligence and deficiency in service on his part as reflected in his conduct and performance in treating the Complainant.

The Complainant alleged that the OP-2 hospital did not take proper care towards her and was negligent medically. But she did not adduce any evidence in support of her claim of medical negligence and deficiency in service against the OP-2. Therefore, the Commission is of the opinion that there was medical negligence and deficiency in service on the part of the OP-2. So, there is no question of relief to be paid to the Complainant.

Therefore, the Point Nos.1&2 are answered in negative.

In the result, the instant case fails on contest.

Hence, it is

Ordered

That the case No. CC/110/2017 be and the same is dismissed on contest without cost.

D.A. to note in the trial Register.

Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.

The copy of the Final Order is also available in the official website: www.confonet.nic.in.

Dictated and corrected by me.