Date of Filing: 09-10-2015 Date of Final Order: 02-02-2018
Sri Asish Kumar Senapati, President
This is an application u/s 12 of the C.P. Act, 1986.
One Ajay Dey (hereinafter referred to as the Complainant) filed the complaint against Dr. Bhaskar Jyoti Mani and the Manager, Poddar Seva Sadan Pvt. Ltd. ( hereinafter referred to as the OPs) alleging medical negligence and deficiency in service. Subsequently, the Manager, Poddar Seva Sadan Pvt. Ltd.(OP No.2 ) filed an application praying for adding the Branch Manager, United India Insurance Co., Cooch Behar Branch as an OP and it was allowed vide order No.7 dated 15.02.16.
The sum and substance of the complaint case is as follows:-
The Complainant went to the OP No.1 who is a Gynaecologist, on 13.10.13 with his pregnant wife Saraswati Dey, since deceased, at the OP No.2 Nursing Home, who was suffering from discomfort and labour pain at 8.30 AM. The staff of the OP No.2 obtained the signature of the Complainant in plain paper and printed forms and asked him to deposit Rs.5,000/-. Accordingly, the Complainant deposited Rs.5,000/- and promised to pay the entire bill before discharge of his wife. That on receipt of the said advance amount, the staff of the OP No.2 took the patient to the Nursing Home and the condition of the patient was aggravated and Oxygen inhalation was started. The Complainant and other relatives accompanied the patient requested the Doctors for starting treatment, thereafter, at about 2.50 PM, the OP No.1 examined the patient but the patient breathed her last on her way to the said Nursing Home. There was complete failure on the part of the OPs to perform their duties. It was alleged by the Complainant that for non-examination of necessary tests and non-administering proper medicines on the fateful day by the OP No.1 caused the tragic death of Saraswati Dey and it was nothing but medical negligence and deficiency in service on the part of the OPs. That the patient was in such a miserable state that the OPs were bound to render proper care and services to the patient but they treated the patient in a very casual manner causing death of the patient on 13.10.13.
The cause of action arose on 13.10.13. The Complainant filed the case praying for compensation of Rs.15 lakh due to loss of life, Rs.10,000/- towards cost of proceedings and Rs.3 lakh for mental pain and agony. The Complainant, being the husband and beneficiary of the patient Saraswati Dey, filed the case against the O.Ps praying for reliefs.
The OP No.1 Dr. Bhaskar Jyoti Mani filed W/V on 15.03.16 inter-alia denying the material allegations made out in the complaint contending that the case is bad for defect of parties and the complaint is liable to be dismissed u/s 26 of the CP Act, 1986. There is no deficiency in service and medical negligence on the part of the OP No.1. It is the version of the OP No.1 that, being a Gynaecologist & Obstetrician, he used to treat the patients at the OP No.2 Nursing Home. It was denied that the patient Saraswati Dey was taken to Labour Room of OP No.2 at 8.30 AM on 13.10.13 in an aggravated condition or that she was seeking for Oxygen inhalation or that she started frothing from her mouth and nose. It was the specific case of the OP No.1 that he went to the OP No.2 Nursing Home at 9.30 AM on 13.10.13 to perform a Caesarian operation of his old patient, namely, Chandana Begum and the operation continued till 11.30 AM and during the course of the said operation, he was informed by the staff of the OP No.2 to attend a new patient viz. Saraswati Dey in the labour room. As the OP No.1 was busy with his old patient Chandana Begum, he could not attend Saraswati Dey immediately. After completion of the operation, he went to examine the patient Saraswati Dey at the Labour Room of OP No.2 and found that the patient had severe respiratory distress and she was frothing from her mouth and nose and was in semi-conscious stage. Immediately life saving drugs were administered. Deriphylin and Decadron injections were administered through I.V and through pulse oximetry and Oxygen saturation was tested and found to be low. As such, under the direction of the OP No.1, Oxygen inhalation was also administered. The poor condition of the patient was informed to the Complainant with request to shift the patient to an institution where ICU facility was available. Ultimately, the patient expired within 2/3 minutes. The OP No.1 did not receive any consideration or fees for treatment of the patient but he examined the patient on emergency basis and tried his level best to save the life of the patient. It appeared from the record of MJN Hospital, Cooch Behar that Saraswati Dey was admitted there on 13.10.13 at 10.04 AM vide Registration No.38428 under Dr. Partha Chatterjee but the Complainant suppressed the fact by adopting unfair means. The OP No.1 had no medical negligence and deficiency in service as he tried his level best to treat the patient. The OP No.1 prayed for dismissal of the complaint with cost.
The OP No.2 filed W/V on 17.11.17 contending that the case is not maintainable and is liable to be dismissed u/s 26 of the CP Act, 1986. The OP No.2 followed the advice of the OP No.1 at the time of emergency for treatment of the patient. There was no medical negligence or deficiency in service on the part of the OP No.2. The Op No.2 prayed for dismissal of the complaint with cost.
The OP No.3 filed W/V on 15.03.16 contending that the case is not maintainable and it is bad for defect of parties. It is the case of the OP No. 3 that the OP No.2 is covered under Professional Indemnity Policy for medical establishment, subject to terms and conditions for the period from 01.07.13 to 30.07.14. There was no negligence or deficiency in service on the part of OP No.3 and the Complainant is not entitled to get any relief against the OP No.3. The OP No.3 prayed for dismissal of the complaint against it with cost.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service / medical negligence, as alleged by the Complainant?
- Whether the Complainant entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point No.1.
The Ld. Agent for the Complainant submits that the Complainant is none but the husband of Saraswati Dey, since deceased, who was a consumer of the OP Nos.1 and 2. It was urged that the Complainant, being a legal heir/representative of the consumer Saraswati Dey is entitled to lodge the complaint as a Complainant.
In reply, the Ld. Agents for the OPs stated nothing on this point. The Complainant alleged that his wife Saraswati Dey, since deceased, hired the services of OP Nos.1 & 2 on payment of Rs.5,000/- and after death of his wife due to medical negligence and deficiency of service, he, being the representative/legal heir of Saraswati Dey filed the complaint as a Complainant.
On a careful consideration, we are of the view that the Complainant is entitled to lodge the complaint, being a representative of his wife Saraswati Dey, since deceased.
Point No.2.
The Ld. Agent for the Complainant submits that the cause of action arose on 13.10.13 within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of the District Forum. The Ld. Agents for the OP Nos. 1&2 submitted that no cause of action arose on 13.10.13 as there was no deficiency of service /medical negligence on the part of the OP No.1 and 2.
Having heard the Ld. Agents of both sides and on perusal of materials on record, we hold that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint.
Point Nos.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant submitted that the Complainant took his pregnant wife to the OP No.2 Nursing Home, with discomfort and labour pain at 8.30 AM on 13.10.13 and deposited an advance of Rs.5,000/- towards treatment of his wife. He further argued that the patient was taken to the Labour Room by the nurses of OP No.2, meanwhile, the condition of the patient was aggravated and Oxygen inhalation was started. It is urged that the patient was frothing from her mouth and nose for which the Complainant and his relatives requested for starting treatment, thereafter, at about 2.50 PM, the OP No.1 examined the patient but she breathed her last on her way to the Nursing Home. It is contended that there was complete failure on the part of the OPs to perform their duty of care expected from a professional Doctor. He argued that the death of the patient Saraswati Dey was due to medical negligence and deficiency of service on the part of the OP Nos.1 and 2. He prayed for adequate compensation.
In reply, the Ld. Agent for the OP No.1 has submitted that OP No.1 tried his level best to save the life of the patient on emergency basis. He argued that the Complainant stated falsely that the patient came to the OP No.2 Nursing Home at 8.30 AM on 13.10.13 because the medical record of MJN Hospital proved that the patient Saraswati Dey was admitted in MJN Hospital at 10.04 AM on 13.10.13 vide Registration No.38428 under Dr. Partha Chatterjee. He further argued that the OP No.1 was busy with a Caesarian Operation of one Chandana Begum at OP No.2 Nursing Home and it was evident from the certified copies of Admission Register and OT Register of OP No.2 Nursing Home dated 13.10.13. It was argued that the Complainant filed this case against the OPs with mala fide intention with a view to harass the OPs. He draws our attention to a number of decisions reported in (2009) 3 SCC 1, CPR 2016 (3) 20 (NC) and 2016 (2) CPR 355 (NCC). He prayed for dismissal of the complaint with cost.
The Ld. Agent for the OP No.3 has submitted that the OP No.3 was an unnecessary party but it is true that professional Indemnity of OP No.2 was covered under Insurance Policy during the period from 01.07.13 to 30.07.14. He prayed for dismissal of the complaint with cost.
The Ld. Agent for the Complainant also relied on a Xerox copy of the document i.e. the letter-head of Podder Seva Sadan Pvt. Ltd. written and signed by the OP No.1 dated 13.10.13 at 2.50 p.m. wherein it was stated in the following manner:
“The patient Saraswati Dey, W/o Ajay Dey was brought to Poddar Seva Sadan on 13.10.13 at about 9 AM (as stated by patient’s husband).
I, Dr. B.J. Mani, was performing a Caesarian operation in O.T. I was told of the patient’s attendance at Podder Seva Sadan. Sister checked the patient’s B.P. as 170/110 & Pedal Oedema. I was busy in O.T and hence could not immediately attend the patient. Meanwhile, the Sisters of L. Room informed me that the patient was complaining of severe Respiratory Distress and was told to given Oxygen inhalation. After I completed the running operation, I came to check the patient. She was having frothing from mouth & nose, and was semi-conscious. Pulse oxymetry showed O2 saturation to be 20%. I instructed the Sister to give Injection Decadun which was given I.V. I also called the husband to see the patient’s condition and was told about grave prognosis and told to shift the patient if financial status permits to facility of ICU i.e. Subham Hospital. But any other step could be taken, the patient collapsed and expired.
In presence of the persons:- Surgeon – Dr. B. J. Mani
Anaesthesist – Dr. D.C. Khara
Assistant – Manik Saha AND
O.T. Sisters & O.T. Boys.”
The Complainant has relied on that document and it is asserted that the said document proves medical negligence and deficiency of service on the part of the OP Nos.1 & 2. The Ld. Agent for the OP No.1 asserted that the OP No.1 was compelled to make the so called statement in writing on 13.10.13 but he did not suppress any fact.
Admittedly, the patient Saraswati Dey, wife of the Complainant died on 13.10.13 at Podder Seva Sadan Pvt. Ltd. It appears from the Xerox copy of the statement of the OP No. 1 dated 13.10.13 that the Doctor made this statement at 2.50 PM and he stated how he treated the patient.
It is the version of the Complainant in para 3 of the complaint that he took his wife to the OP No.2 Nursing Home at 8.30 AM but it appears from the certified copy of Admission Register of MJN Hospital dated 13.10.13 that Saraswati Dey, wife of Ajoy Dey was admitted at MJN Hospital at 10.04 AM on 13.10.13 vide Registration No.38428 under Dr. Partha Chatterjee. If that be so, it is needless to say that the Complainant has stated falsely that he took his wife to the OLP No.2 Nursing Home at 8.30 AM on 13.10.13.
The Complainant also stated in para 2 of the complaint that he deposited Rs.5,000/- as advance but no document to that effect was filed by the Complainant to show that he paid the said amount for treatment of his wife at OP No.2 Nursing Home. It is the allegation of the Complainant that the Complainant paid the above amount for treatment of Saraswati Dey at OP No.2 Nursing Home.
But it is the case of the OP Nos.1 & 2 that the patient party did not pay any amount for the treatment of Saraswati Dey, and she was not admitted there and the emergency treatment was only given to the patient without any charge. It is also the version of the OPs that the OP No.1 was engaged in an operation which was clearly revealed from the certified copies of Admission Register and OT Register of Podder Seva Sadan Pvt. Ltd. dated 12.10.13 and 13.10.13. The OP No.1 asserted that he could not attend the patient before completion of his Caesarian Operation and after completion of the operation, he attended the patient but the treatment was out of his control. The Ld. Agent for the OP No.1 stated that the death of Saraswati Dey was very unfortunate but the Complainant took the patient when the case was a lost one.
We have gone through the written complaint, W/V, evidence on affidavit, documents filed by both sides, written argument and the decisions referred by Ld. Agent for the OP No.1. It is true that after death of a patient, the allegation against the Doctor for his negligence is very common but in-spite of best efforts and skill of the Doctor or Surgeon, if a patient dies, it cannot be termed as medical negligence. Doctors are not God. They have their limitations. What the Doctors can do, they can only try to render best efforts according to their skill and accepted medical procedures.
In the present case, it is clear that Saraswati Dey was taken to Podder Seva Sadan Pvt. Ltd. after release from MJN Hospital where she was admitted on 13.10.13 at 10.04 AM. The Complainant has failed to prove that he paid Rs.5,000/- to the OP No.2 for treatment of his wife on 13.10.13. It is not reasonable and wise to say that a Doctor who is busy in any operation should attend a patient by leaving his/her patient at the operation table before completion of operation. In the present case, the OP No.1 attended the patient on 13.10.13 after completion of operation of his old patient and asked the nursing staff and others to administer Oxygen and medicines during continuation of the said operation. Moreover, the statement of the Complainant in his Complaint is contradictory. It has been asserted that the patient was taken to the OP No.2 at 8.30 a.m. on 13.10.13 and it has been stated in para 4 of his complaint that the patient breathed her last in the way to the said Nursing Home. With due regards to the decisions as referred by the Ld. Agent for the OP No.1, we think that the principles of those decisions are settled principles of law and we are duty bound to accept it.
After consideration of the entire materials on record, we find that the Complainant has failed to establish either medical negligence or deficiency in service against the OP Nos.1 & 2 and the Complainant is not entitled to get any relief against the O.Ps.
In the result, the complaint case fails.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby dismissed on contest against the O.Ps without cost.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
