Ld. Advocate(s)
For Complainant: subhasis Roy
For OP/OPs : Pradip Banerjee
Date of filing of the case :10.03.2015
Date of Disposal of the case : 06.04.2023
Final Order / Judgment dtd.06.04.2023
Complainant Kanai Lal Chakraborty filed the present complainant against the aforesaid opposite parties under section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and Medical negligence and praying for compensation amounting to Rs.19,00,000.00(Rupees Nineteen Lakhs), cost of the medical treatment and Rs.5,000.00(Rupees Five thousand) as litigation cost.
It is the allegation of the complainant that his son namely Kalyan Chakraborty was businessman and one of the earning member of his family. On 30.11.2014 said Kalyan Chakraborty was suffering with general physical problems and went before OP No.1 for his treatment. OP No.1 after examining him advised to do some pathological tests of blood and same were done before the OP No.2. On 02.12.2014 said Kalyan Chakraborty was brought by his family members before the OP NO.1 along with aforesaid pathological report and OP No.1 after examining those reports prescribed some medicines but on that date no improvement was found. Then said Kalyan Chakraborty was again came before the OP NO.1 with his brother Prosanta Chakraborty and on that time OP NO.1 advised him to take admission at OP NO.2 for necessary treatment and also prescribed some medicines. Accordingly said Kalyan Chakraborty was admitted at the nursing home of the OP NO.2 on 02.12.2014. On that date OP NO.1 immediately advised some tests like USG of the upper abdomen, and ECG. Those investigations were done from the pathology department run by OP No.2. After prescribing all those reports OP NO.1 gave some medicines and left the nursing home. During the aforesaid treatment period one injection namely Lycoun was given besides other medicines as per prescription of OP NO.1. On 03.12.2014 at 9:30 a.m. condition of the patient was serious and BP was noted as 80/60 on 03.12.2014 at 11:00 a.m. Said Kanai Lal Chakraborty died suddenly without getting any proper treatment from the OPs . It is very unfortunate that at the time death of Kanai Lal Chakraborty OP NO.1 was not present there to discharge his duty. Even after knowing the fact at 10:20 a.m. patient was serious and his BP was found as above. Then OP No.2 brought the OP NO.3 who found that the patient was expired at 11:00 a.m. Due to negligent act and carelessness on the part OP No.1, complainant has to loss his young son even after spending Rs.5000/-. Hence the complainant filed this case praying for aforesaid relief.
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When said Kalyan Chakraborty was produced before OP No.1 on 02.12.2014 on that time OP NO.1 carelessly noted the name of patient as Jayanta Chakraborty instead of Kalyan Chakraborty.
OP NO.1 contesting the case by filing W/V and denied all the material allegations made in the petition of complaint. He further stated that on 02.12.2014 said Kalyan Chakraborty was brought to his chamber by his brother Boomba. At the time there was huge rush of patient in his chamber.
On that time Chamber Assistant Manik Seikh mistakenly told the name of patient as Jayanta Chakrabroty as Manik Seikh was his good friend. At the time of examination of said patient at his chamber he advised investigation mentioning the name of patient as Kalyan Chakrborty. At the time of admission of said patient his name was noted as Kalyan Chakraborty. On 02.12.2014 patient Kalyan Chakraborty was brought to the chamber of OP NO.1 with the complaints of pain in abdomen, vomiting, tendency and decreased appetite. Patient had cough and cold at the same time and blood pressure were stable on that time. OP No.1 was not informed anything that patient had heart problem. At that time OP No.1 prescribed some medicines and asked to do some blood and USG tests of upper abdomen keeping in mind about the possibility of gastritis, hepatitis or pancreatitis. These tests were done from Central Pathology and Hrik Diagnostics respectively in the afternoon. In the evening of 02.12.2014 said Boomba brought those reports before OP NO.1 and told that condition of the patient was not improved. OP No.1 examined the reports which showed features of hepatitis. As the condition of the patient was not improved, he advised for admission of the patient before the nursing home of OP No.2. He advised some injections and fluids. In the evening OP No.1 went to see the said patient. On that time it was told to the OP NO.1 that patient had heart problem in the past. OP NO.1 requested the patient to produce relevant documents but said Boomba could not produce the same. Said Boomba told that he would produce those documents in the next morning. As Boomba used to work as doctor’s assistant, OP NO.1 believed him to some extent. OP No.1 saw the ECG of the patient it was reported as:-
- Sinus tachycardia- it denotes an increase in heart rate. But his heart rate was only marginally increased. It was only 101 beats per minute normal being upto 100 per minute. That might be physiological or due to anxiety or due to the low BP (hypotension) (Vide-Harrison’s principles of Internal Medicine)
- Left arterial abnormality – it denotes a possibility of one of heart chamber enlargement. But there are multiple false positive or false negative interpretations of this finding in the ECG. More define information is provided by the Echocardiography. (Ref:- Harrison’s principles of internal medicine.)
ECG also showed (although it is not reported) evidence of poor R Wave progression. It is a non-specific finding in ECG (Vide – Braunwald’s
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Heart diseases) Specificity of a test is denied as ability of a test to correctly exclude the true negatives. Low specificity means that there may be multiple persons who may show this abnormality in the ECG without having a true disease (Vide – Park Text Book of preventive and social medicine).
On the basis of aforesaid report of ECG of patient OP NO.1 did not consider to refer the patient to cardiologist or higher centre because most of the patient of hepatitis feel better with restricted physical mobility in the meantime after getting the treatment of hepatitis . The patient felt better although his blood pressure remained on the lower side i.e 90/60.
On the next morning i.e 03.12.2014 OP NO.1 went to see the patient before the nursing home of OP NO.2 with expectation that past ECHO report or old treatment documents of the patient will be made available at bed side but surprisingly patient party did not produce any such documents. On that time BP was low and reached upto 80/60. He had a boul of vomiting in the morning. Low BP was due to that. OP NO.1 started an I.V fluid. After running I.V fluid patient felt better. Thereafter, patient himself informed over mobile to his family member that he had been feeling better. On that time OP NO.1 asked the staff of OP No.2 to arrange for an ECHO cardiography to know the exact nature of heart ailment of the patient. OP NO.1 left the nursing home after giving the instructing to call the Doctor Vivek Das another consultant and physician to look after the patient if there is any emergency. Between 10:00 to 11:00 a.m. one phone call from OP NO.2 came to OP No.1 stating that patient expired suddenly then OP No.1 informed said fact to Nituda, one of the closed friends of Boomba as OP No.1 did not have Boomba’s phone at that time.
After coming back to the nursing home OP No.1 examined the bed head ticket and found that Doctor Vivek Das attended the patient on an urgent basis at a very critical moment of the patient. Although he tried to his level best to save the patient with all sorts of life saving measures.
Complainant alleged that OP No.1 examined the patient at 10:20 a.m but it was not at all to true. The patient was examined by doctor Vivek Das on that time. Complainant has falsely stated that OP NO.1 noted in his own hand writing that the patient’s BP was not found. Actually those hand writing were the writing of doctor’s Vivek Das. After discussing the events just prior to the patient’s death with the nursing home staffs and Vivek Das, OP NO.1 came to know that just prior to the urgent call given to Doctor Vivek Das the patient again vomited and kept hand on his chest and immediately collapsed. OP No.1 came to the conclusion that the mishap occurred due to sudden cardiac death, due to acute myocardial infraction( heart attack). At the time of writing the death certificate, OP NO.1 again requested Boomba to produce documents to
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know the nature of the ailment. But astonishingly and suspiciously he did not produce those documents at that time OP No.1 was forced to write these notes in the death certificate. He prays for dismissal of the case.
OP No.2 contest the case by filing written statement and denied the entire allegations. He contended that on 02.12.2014 at 6:00 p.m. patient namely Kalyan Chakraborty was admitted as per advise of OP NO.1 in his nursing home. Said patient was produced by one Mili Pramanick. All pathological list was done in Central Pathology, he denied the allegations that due to negligent act and carelessness on the part of OP No. 2 aforesaid patient was died. OP NO.2 is well-known nursing home and it has got trained staffs and all kinds of arrangements are available here and the staff, and nurse of OP NO.2 took care the deceased after taking admissions. They gave medicines, injections and saline to the patient as per advise which were mentioned in the prescription and treatment sheet of the patient and there was no latches on their part on 03.12.2014 but condition of the deceased was being deteriorated then OP NO.2 in absence of OP NO.1 call OP NO.3 urgently and also informed OP NO.2. OP NO.2 took proper method as per advised and there is no negligence on his part such he cannot be asked to paid compensation, he prays for dismissal of the case.
OP No.3 contest the case by filing separate W/V and denied the entire allegations. He stated that he had no role in the treatment of deceased Kalyan Chakraborty. He is the attending doctor of OP NO.2 not as a regular medical officer but used to provide service as a casual doctor for OP No.2 as an when called on. OP NO.3 was called on by OP NO.2 on 03.12.2014, and he arrived that nursing home and found that patient was expired before his arrival. Then he went on examining the different vital signs to confirm the status of the patient as dead. Thereafter being confirmed and declared that the patient is expired by noting "the patient is expired. Time of death is 11:00 a.m. on 03.12.2014." Patient was not admitted under OP NO.3 and OP No.3 did not advise for admission in the nursing home and OP No.3 did not treat the patient or provide any medical advice as there was no scope on the part OP No.3 for providing medical advice. OP No.3 just declared the death of the patient, he prays for dismissal of the case.
Trial
During trial complainant Kanailal Chakraborty filed affidavit in chief. OP No.1 submitted interrogatories and complainant filed reply. OP No.2 submitted interrogatories to said Kanailal Chakraborty who subsequently submitted his reply. OP No.3 submitted some questionnaires to said Kanailal Chakraborty who subsequently submitted in his answer.
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Documents
During the trial OP No.2 produced the following documents:-
1) Bed head ticket of Kalyan Chakraborty ........consisting
i)Original copy of admission form...............(One sheet)
ii) Xerox copy of approval slip of Kalyan Chakraborty.........(One sheet)
iii)Original copy of prescription dated 02.12.2014 and 02.12.2014........(One sheet)
iv)Original copy of treatment sheet ...........(One sheet)
v) Original copy of treatment master sheet ................(One sheet)
vi) Original copy of in take out put charge..............(One sheet)
vii) Xerox copy of medical certificate of cause of death..........(One sheet)
Following documents have been filed on behalf of OP No.1:-
i) Original copy of ultra sound film dated 02.12.2014.......(One sheet)
Brief Notes of Argument
Complainant files BNA. OP No.1 files BNA, he also files another BNA. OP No.2 files BNA. OP No.3 also files BNA.
Decision with Reasons
It is the allegation of the complainant as mentioned in the petition of complaint that OP No.1-3 were negligent in the treatment of Kalyan Chakraborty as a result Kalyan Chakraborty died subsequently. Complainant prayed for compensation.
OP No.1-3 in their W/V denied the entire allegations they clearly stated that there is no negligence on their part. OP NO.1-3 stated some facts in their W/V relating to death of patient namely Kalyan Chakraborty.
We have carefully gone through the bed head ticket of the deceased Kalyan Chakraborty . As per bed head ticket, patient namely Kalyan Chakraborty was admitted before the nursing home of OP No.2 on 02.12.2014 at 6:00 p.m. Mili Pramanik brother in law of the patient put signature over the admission form. Said patient was admitted under OP No,.1 it is fact that in the morning of 02.12.2014 patient namely of Kalyan Chakraborty was produced before OP NO.1 and he prescribed some medicines and on that time he wrongly noted the name of patient as Jayanta Chakraborty instead of Kalyan Chakraborty. We also find that on the same day i.e on 02.12.2014 OP No.1 also examined the patient Kalyan Chakroborty and advised some medicines and IVF. On that date he also examined the patient on another occasion and advised some
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medicines, IVF. We are also find that on 03.12.2014 OP NO.1 examined the patient Kalyan Chakraborty and on that time he found BP of the patient as 80/60, he advised TCDC and ECHO Cardiography in the treatment sheet. He advised to call Vivek Das in his absence.
It is also found the treatment sheet that on 03.12.2014 at about10:20 a.m. one doctor examined the patient on that time of examination he did not find any BP for recording the same. He advised some injections. Curious enough that OP NO.2 in his W/V did not mention who treated the patient Kalyan Chakraborty on the aforesaid time. Hand writing signature of the doctor indicates that it is not OP No.1 .It is not OP NO.3. But it is another doctor. OP No.2 was competent enough to state the name of the doctor who treated the patient namely Kalyan Chakraborty on 03.12.2014 at 10:20 a.m. We failed to understand as to why OP No.2 suppressed the name of the doctor who treated patient Kalyan Chakraborty on that time. Such type of suppression of fact is not desirable from a renowned nursing home i.e OP NO.2. We are also find from treatment sheet that 03.12.2014 when OP No.1 was treated the patient Kalyan Chakraborty then he found that condition of the patient was very critical in nature but he did not take proper care of the said patient on that moment. Even he did not ensure his availability at that time of emergency of the patient. Moreover, he noted in his treatment sheet that even emergency call doctor Vivek Das in his absence. Such type of act from a famous doctor like OP No.1 is not desirable at all. From the treatment sheet it is clear before us that OP NO.1 examined the patient Kalyan Chakraborty on 03.12.2014, he found the patient was on critical condition because on that time BP of the patient was found as 80/60. It is clear before us that BP 80/60 cannot be the pressure of normal range of a normal person but seeing the aforesaid critical condition of the patient namely Kalyan Chakraborty OP NO.1 simply and casually left the nursing home of OP NO.2 being a responsible and famous doctor of the locality. It was his duty to remain present in the nursing home to observe the time to time development of the patient and to decide the medicine for the save of the life of patient namely Kalyan Chakrabroty but he did not do so. Any man can support the aforesaid activities and behaviour of OP No.1. He simply left the nursing home keeping the patient in helpless condition.
We have carefully gone through the W/V of OP NO.1. Affidavit in chief of the OP NO.1. Neither in the W/V nor in the evidence of the OPW-1 nor in the Brief notes of argument of OP No.1 no cogent reason has been assigned as to why OP No.1 left the nursing home keeping the patient Kalyan Chakraborty in aforesaid critical condition.
Ld. Adv. for the OP No.1 cited a decision reported in (2005) 2 WBLR (CPSC) 164. We find that Hon’ble SCDRC West Bengal held that in a case of allegation of negligence in post operational case infection already existed, nothing to show that appellant did not take proper steps what a prudent doctor would take and it has been alleged that breach of duty on the part of the doctor not proved . But facts of the present case is totally different. Accordingly, we find that said decision is not applicable in the present case.
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Ld. Adv. for the OP No.1 cited another decision reported in (2005) 1 WBLR (CPNC) 177. We find that Hon’ble NCDRC New Delhi held that complainant underwent sterilisation operation in State General Hospital. No charge was paid. No compensation was awarded. But facts of the present case is totally different. In the present case allegation against Private Nursing Home. Accordingly, we find that said decision is not applicable in the present case.
Ld. Adv. for the OP No.1 cited another decision reported in AIR 2019 SC 1143. We find that said case was instituted against Hospital and its doctor. But present case has been instituted against a nursing home and doctor. But facts of the present case is totally different. Accordingly, we find that said decision is not applicable in the present case.
Ld. Adv. for the OP No.1 cited another decision reported in AIR 1992 SC 2009. We find that said case was instituted relating to mortgagee in possession. The facts of the present case is totally different. Accordingly, we find that said decision is not applicable in the present case.
Ld. Adv. for the OP No.1 cited another decision reported in AIR 1997 AP 53. We find that said case was instituted relating to possession. The facts of the present case is totally different. Accordingly, we find that said decision is not applicable in the present case.
Ld. Adv. for the OP No.1 cited another decision reported in III (2016) CPJ 258 (NC). We find that in the said case treatment was free of cost in a hospital. In the present case allegation against Private Nursing Home. The facts of the present case is totally different. Accordingly, we find that said decision is not applicable in the present case.
Ld. Adv. for the OP No.1 cited another decision reported in III (2015) CPJ 608 (NC). We find that patient admittedly suffered cardiac arrest within few minutes of his being taken to hospital. The facts of the present case is totally different. Accordingly, we find that said decision is not applicable in the present case.
Ld. Adv. for the OP No.1 cited another decision reported in II (2015) CPJ 102 (NC). We find that doctor not treated the patient for any kind of consideration. In the present case it is not the defence of OP NO.1 that he treated the patient without consideration. Accordingly, we find that said decision is not applicable in the present case.
Ld. Adv. for the OP No.1 cited another decision reported in III (2013) CPJ 31 (NC). We find that in the said case legal heirs of the deceased was challenged. Accordingly, we find that there is no similarity of the said decision with the present case. Accordingly we find that said decision is not applicable in the present case.
Ld. Adv. for the OP No.1 cited another decision reported in II (2008) CPJ 200. We find that Hon’ble SCDRC MP passed the said decision. It was a case of removal of stone from kidney in past. Kidney found infected. Accordingly, we find
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that there is no similarity of the said decision with the present case. Accordingly we find that said decision is not applicable in the present case.
Having regard to aforesaid discussion it is clear before us that act and performance which has done by OP NO.1 during his treatment on 03.12.2014 is nothing but clear instants of negligence of treatment. If OP No.1 would remain present at the nursing home of OP NO.2 on 03.12.2014, he could supervise time to time treatment and could advise medicines in the change circumstances , and in deterioration condition of the patient, then there would have a chance to save the life of patient namely Kalyan Chakraborty. But OP No.1 being a responsible doctor did not give any such time for the treatment of Kalyan Chakraborty on 03.12.2014. The reason best known to him. On that time he thought to leave the nursing home keeping the patient in helplessly condition for his other engagement. It is clear violation of oath of doctors which he administered at the time getting registration.
Having regard to the aforesaid discussion and considering the documents on recorded, evidence on record, pleadings of the parties, and brief notes of arguments it is clear before us that OP NO.1 is mainly responsible for negligence in treatment of patient Kalyan Chakraborty.
We also find the negligence on the part OP No.2 as he failed to bring the OP NO.1 when he found the critical condition of the patient namely Kalyan Chakraborty on 03.12.2014 at 10:20 a.m. On that time OP No.2 called another doctor whose name he did not mention in his W/V and suppressed the name of the doctor whom he call on that time. So, OP No.2 cannot escape himself for the untime death of patient namely Kalyan Chakrabort.
From the aforesaid discussion we find that OP NO.3 only declared the death of the patient namely Kalyan Chakraborty at 11:00 a.m. and he did not treat the patient so we do not find any negligence on the part of the OP No.3
In the result present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed on the contest against the OP NO.1-2 and dismissed on contest against OP No.3 with cost of Rs.10,000/- (Rupees Ten thousand) to be paid by OP NO.1-2 in favour of the complainant.
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OP NO.1-2 jointly or severally are directed to pay Rs.10,00,000/-( Rupees Ten lakhs) as compensation in favour of the complainant within one month from this date of order failing aforesaid amount shall carry interest @ 9% per annum till the date of actual payment-and complainant shall have liberty to put the order into execution.
Let a copy of this order be supplied to the parties as free of cost.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
