C.F. CASE No.                      :            CC/2010/114

COMPLAINANT                  : 1)       Apu Das,

                                    S/o Sri Askhmay Kumar Das

                                    of Anandaganj, P.O. + P.S. Chakdaha,

                                    Dist. Nadia

                                        2)     Mirnor arpita Das (Baby)

                                    Daughter of Apu Das of Anandaganj,

                                    P.O. & P.S. Chakdaha, Dist. Nadia

• Vs  –

OPPOSITE PARTIES/OPs   :      1)   Dr. Jibankush biswas

                                        2)     Dr. Tusar Kanti Mondal,

                                    M.O. Chakdaha S.G. Hospital

                                    P.O. Chakdaha, P.S. Chakdaha,

                                    Dist. Nadia

                                       3)      Superintendent of J.N.M. Hospital

                                    P.O. & P.S. Kalyani, Dist. Nadia

                                       4)     Superintendent of Carnival Hospital

                                    A-9/16(S), 17(S) Kalyani,

                                    P.O. & P.S. Kalyani, Dist. Nadia

PRESENT                : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT

   : SMT REETA ROYCHAUDHURY MALAKAR, MEMBER

   : SHRI SHYAMAL KUMAR GHOSH,          MEMBER

DATE OF DELIVERY                                             

OF  JUDGMENT                         :    10^th March, 2014

:    J U D G M E N T    :

            This complaint was lodged by Apu Das and in the name of minor Arpita Das, his daughter on 29.12.10 against Dr. Jibankush Biswas, Dr. T.K. Mondal, M.O. Chakdaha Hospital, Superintendent of J.N.M Hospital and Superintendent of Carnival Hospital.  The facts of the case to put, in a nutshell, is as below:-

            The wife of the complainant was pregnant and she was under treatment of Dr. Jibankush Biswas and, thereafter, by Dr. T.K. Mandal, Dr. Mandal directed to wife of the complainant to take admission at J.N.M. Hospital, but the J.N.M. Hospital after taking admission released the patient on the next date.   Naturally, the complainant took his wife to Chakdaha Hospital first and thereafter, the JNM Hospital.  The environment of JNM Hospital did not suit the patient and hence, she was admitted at Carnival Hospital on 17.04.10 at about 9.40 am, Dr. Jibankur Biswas was paid Rs. 8,000/- on demand.  Dr. Biswas informed that the patient required caesarian operation which was done on 11am.  Dr. Biswas left the Hospital and advised not to worry.  Thereafter, the complainant’s wife felt pain in her chest. The nurse was informed but no proper step was taken.  Dr. Biswas was informed at 6 pm.  The patient’s relatives were drove out from the complex at about 7pm and a van full of police entered into to the complex.  The complainant was waiting outside of the complex and he was in the dark about the condition of his wife.  At about 9 pm Dr. Biswas informed the complainant that his wife died of heart attack. 

The baby was kept in the custody of the Carnival Nursing Home.  On 21.04.10 the complainant went to Nursing Home to bring the baby but the Nursing Home Authority refused to hand over the baby unless or until the money was paid.  The complainant already paid the money for medical expenses.  The Nursing Home Authority lodged a false FIR against the complainant.  On 10.05.10 the complainant was assured and got bail.  Dr. Biswas informed the complainant that he wanted to give a cheque of Rs.40,000/- for compensating the complainant.  Dr. Biswas gave a cheque which was dishonoured due to insufficient fund.

Due to unfair trade practice by the doctor and Nursing Home Authority the complainant lost his wife so there was gross deficiency in service and negligence of doctor.

The complainant prays for a compensation of Rs. 17,00,000/- for premature death of his wife due to wrong treatment and gross negligence of the OP No. 1 & 4.  The complainant further prayed for Rs. 50,000/- as compensation for treatment of the patient. 

The cause of action arose on 17.04.10 within the jurisdiction of this Forum.

Dr. T. K. Mandol, OP No. 2 filed written version on 30.05.11 and Dr. J. Biswas, OP No. 1 filed the same on 29^th July, 2011.

Written version from OP No. 4, Carnival Nursing Home gave on 20.08.2011.  The sum and substance of all the written versions may be put as under:-

The complainant has no cause of action. The complaint is misconceived, malafide and motivated.  His claim is excessive and exorbitant.  OP No. 2 Dr. Mondal is a doctor of reputation, so he was not negligent. 

Dr. Biswas, OP No. 1 also pleaded in the same lines and mentioned that on 17.04.10 the wife of the complainant died at Carnival Nursing Home (Hospital) but the time of death was 10.50 pm and not 9 pm.  Demand of cash of Rs. 8000/- was also denied.  It is admitted position that on dtd. 17.04.10 at 9.40 am the patient was admitted and L.S.C.S. was done and a healthy female baby was born at 12.05 pm.  A cardiological problem was arose and the name of the complication is pulmonary embolism.  Dr. Biswas was not negligent at all.

Carnival Nursing Home has pleaded in the written objection that the doctors and the Nursing Home authority was not negligent at all.  Money was not demanded as claimed by the complainant.  Nursing Home Authority took care of the baby till 24.04.10. 

OP No. 4 does not know whether Dr. Biswas gave any cheque or not.

POINTS FOR DECESION

1. Point No. 1:   Are the complainants consumers?
2. Point No. 2:   Have the complainants proved the negligence on the part of the OP No. 1 or OP No. 2?
3. Point No. 2:   What other relief the complainants are entitled to get?

REASOND DECISIONS

            For the purpose of brevity and convenience all the points are taken up together for discussion.

            Dr. J. Biswas filed affidavit-in-chief dtd. 22.01.12.  The complainant Apu Das filed an affidavit-in-chief on 07.09.11 covering 9 pages.  OP No. No. 4 filed affidavit-in-chief on 02.04.13.  Interrogatories on behalf of the complainants was filed on 17.04.13.  Interrogatories on behalf of the complainant against examination-in-chief filed by Dr. J. Biswas was filed on 27.02.13.   On 08.11.11 interrogatories filed by on behalf of the OP No. 1& 2 against affidavit on the part of OP No. 1 is on record.  On 18.11.11 interrogatories of OP No. 4 was filed.

            Reply of the complainant against the interrogatories by the OP No. 4 was filed before this Forum but on 01.01.12 and reply to the interrogatories by the complainant against the interrogatories of OP No. 1 and OP No. 2 was filed on 11.01.12.   Reply to the interrogatories was filed on 23.05.13.  From the record, we find that reply to the interrogatories of the complainants against affidavit of Dr. J. Biswas was filed.

            Ld. Advocate for the complainant filed 18 documents as per firisti:-

1. Prescriptions of Dr. T.K. Mondal
2. Clinical reports issued by Chakdaha Municipality
3. Clinical reports issued by Pathonova,
4. Prescriptions of Dr. R.M. Das
5. Prescriptions of Dr. Jibankush Biswas
6. Prescriptions issued by Carnival Nursing Home
7. Prescriptions issued by Carnival Nursing Home
8. Clinical report of Manorama Ultrascan Pvt. Ltd.
9. Visiting card, treatment paper issued by JNM Hospital
10. Birth Certificate of Baby of the patient Shyamali Das, issued by Carnival Nursing Home
11. Discharge Certificate of the baby issued by Carnival Hospital
12. Death certificate of Shamali Das
13.  Cremation certificate of Shyamali Das
14. Cheque No. 114861 dt. 22.06.10 issued by Dr. J. Biswas
15. Cheque deposit receipt
16. Return of cheque by PNB
17. Certificate of Bank of India
18. Bank of India S/B A/C No. 406310110000111 updating status

            Ld. Advocates Sri Subhasis Roy represented as OP No. 1 & 2 adopted the written argument placed by OP No. 4, Carnival Nursing Home.  Sri Avijit Gope is the ld. Advocate  by the OP No. 4.  Ld. Advocate Sri Pradip Banerjee filed the written argument on 21.02.14 for the complainant.  Written argument of OP No. 4 was filed on 14.02.14. 

            We have meticulously gone through the affidavits, interrogatories and reply on the record.  We have carefully considered the arguments advanced by ld. Advocates for the complainant and the OPs.  Ld. Advocate Sri Gope has filed medical documents of Carnival Hospital of the patient Shyamali Das wife of Apu Das the complainant along with written undertaking the Apu Das dtd. 17.04.10 and 21.04.10 showing custody of the child in favour of the Nursing Home (Carnival Nursing Home) and taking over the child from the Hospital authority without any complaint what so ever (vide undertaking of Goutam Kar Das & Apu Das with the endorsement of medical officer).  We have meticulously gone through the admission ticket and prescriptions of the patient Shyamali Das, 21 wife of Apu Das.  The Doctors diagnosed acute pulmonary embolism.  On 17.04.10 the patient was referred to Dr. BB Rath Dr. UP Haldar and Dr. T.K. Sarkar.  All the doctors are having M.D. Degrees.

            We have also meticulously gone through 2002(1) CPR (NC) filed by Mr. Gope along with a note of pulmonary embolism.  We have also meticulously gone through the case laws reported in II (2007) CPJ 259 (NC).

            In 2002 decision we find that it was a case of Angio plustio which was essential or surgical of the deceased in that case the complainant failed to establish the charge of negligence of the doctors.  In that case the complainant suffered two heart attacks earlier.

            In 2007 case, we find that due to cardio respiratory failure and due to haemorrhage the patient collapsed.  It was held in the case law that the onus to prove of medical negligence lias with the complainant.  The principles of Bolams Eest which required the duty and care were considered by the Hon'ble National Commission.  We have also gone through the following case laws from out library:-

1. Jacob Mathew V. State of Punjab, (2005) 6 SCC
2. Bolam vs. Friem Hospital Management (1957) 1 WLR 582
3. 1955 S.C. 200
4. (1981) 1 W.L.R. 246
5. Maynards vs. West Midlands Regional Health Authority (1984) 1 W.L.R. 634
6. (1995) P.I.Q.R. P. 281
7. Bolitho (Deceased ) Vs. City and Hackney HA (1993) P.I.W.R. P 334
8. (1994) 3 All ER 79
9. (1995) 6 SCC 651
10. (1995) 1 SCC 551
11. (2009) 13 SCC 654
12. (2011) 10 SCC 756
13. (2009) 13 SCC 710
14. (2011) 10 SCC 634
15. (2009) 6 SCC 1
16. SLP (Civil) No. (s) 29979/2011 decided on 14.11.2011
17. (2010) 10 SCC 254
18. (2011) 1 SCC 343
19. (2011) 10 SCC 683
20. (2011) 13 SCC 236
21. (2004) 8 SCC 56
22. (2009) 7 SCC 372
23. (2009) 9 SCC 221
24. Errors, Medicine and the Law, Cambridge University Press, p.14, Alan Merry and Alexander McCall Smith, 2001 Edn.

            The gist of the above case laws covers the range of cases from Bolam to Balaram Prasad via Bolitho. Those are the land mark judgments of the Hon'ble Apex Court awarded compensation of Rs. 6,08,00,550/- to Dr. Kunal Saha the claimant in Dr. Balaram case and versus Kunal Saha & Ors.  Vide civil appeal No. 2867 of 2012 and 2866 of 2012 and 858 of 2012 civil appeal No. 731 of 2012 and civil appeal No. 858 of 2012 decided on 24.10.13. 

            Ld. Advocate Sri Bannerjee for the complainant has argued that no doctor attended the patient from 5pm to 10pm.  No response was found either from the doctors or Nursing Home side.  Dr. S. K. Roy never visited the patient or treated her.  Our attention was drawn two sheets by Sri Banerjee.  From 12.10 pm after the delivery till 7pm no doctor attended the deceased / patient and the patient died due to medical negligence at 10pm. 

As per Churchill Livingstone Pocket Medical Dictionary by Nancy Roper low-price edition, 13^th Edition, we find pulmonary means pertaining to illness of lungs and embolism means obstruction of a blood vessels by the impaction of a solid body, e.g. thrombi, fat globules, tumour cells or an air bubble.

            Ld. Advocate from S. Roy has submitted that Dr. T.K. Mandol, OP No. 2 has not treated the patient at prenatal stage.  According to Sri Roy, Dr. J. Biswas operated the patient and the disease of the long which emerged by the act of copy of unforeseen does not make any doctor responsible for the death.  Sri Avijit Gope has highlighted that there was no negligence regarding the child as per undertaking given by 17.04.10 and 21.04.10.  All care was taken to save life of the patient but in vein.  We agree that in a case of medical negligence that due to prove such negligence lies upon the complainant.  Now, let us see whether the complainant could establish such negligence or not. 

            It is admitted position that the complainants are the consumers.   Now we have to examine whether there was any deficiency in service or negligence on the part of the doctors.

            In the backdrop of the complainant’s alleged hooliganism, we find insufficient evidence against the complainant over the charge of hooliganism so we are not discussing the point further.

            We have already mentioned that the complainants could not establish negligence to maintain the new born child by the OP No. 4 Carnival Nursing Home.  It is mentioned here that there was no further medical expert to appoint regarding the instant case or pulmonary embolism by the district Hospital of Nadia vide.  C.M.O.(H) refused to the effect.

            The certificate of death shows that the patient died on 17.04.10 at 10.50 pm  due to acute pulmonary disease in a post operative case of L.S.C.S.  The treatment sheets clearly and unmistakably show that the treatment of patient on 17.04.10 at 7.40 pm and 17.50, 10.20 and 10.40 pm.  The doctors took the reasonable care to save the life of the patient as per the documents and evidences on record but the life could not be saved. 

We have also meticulously gone through the medical reports filed by the complainant as per firisti and we find that the patient was referred to the higher centre for ventilatory support (vide prescription dtd. 17.04.10) at 10.20 pm.

            We have meticulously gone through the affidavits on records and the interrogatories along with the reply but we are constrained to hold that the complainant could not establish medical negligence any of the OPs.   Hence, all the points are disposed off.

Hence,

Ordered,

That, the case CC/10/114 be and the same is dismissed on contest without cost.

Let a copy of this judgment be delivered to the parties free of cost.