This instant consumer complaint was filed before the Kolkata bench of SCDRC, W.B. Subsequently it was re-assigned before our bench at Siliguri to meet the consumer dispute.
The consumer case filed by one MD. Obaiyed Miyan is short is that as and when the complaint's wife Mrs. Shamsur Nahar conceived for some months the complainant engaged the O.P. No. 1 for check-up of his wife and the baby at womb and that he took her clinic of the O.P. No.1 on 01.06.2016 situated at K.J. Sanyal Road, Malda.
That the O.P. No.1 made an intensive diagnosis of the patient and prepared a prescription for her and expressed his content and delight about the present condition of baby in the womb and the mother and remarked that the baby in the womb would meet a normal delivery, should regular visits be made to his clinic by the mother.
That as many as 5 visits, were made by the patient Shamsun Nahar hereinafter called the victim to the clinic of the O.P. No.1 in a space of about 5 months to the satisfaction of the O.P. No.1 who also had been satisfied with his performance.
That when in the month of September of 2016 under instruction of the O.P. No.1 Obstetric Sonography was done in the Kaliachak Scan Centre & Pathological Clinic (situated at Kallachak Malda), the reports were satisfactory and no abnormally could be discovered by any means.
That under the advice of O.P. No.1 Hematology was tested in the Kallachak Scan Centre and pathological Clinic, Kaliachak, Malda reports of which were fully satisfactory.
That when everything went well and the victim was admitted to the Malda Nursing Home for delivery on 22.12. 16 at 8.40 P.M. under the treatment of O.P. No. 1.
That when some complications arose at the hands of attending doctors the O.P. No.1 who could no longer be equal to handling this delicate case referred discharge was done the now and then victim was placed under the treatment of O.P. No. 2 Dr. T.K. Das, Md, on 23.12.16 yet the male baby was delivered by C/S with Malformation and the victim still again discharged on 24.12.16.
That the Baby discharge Summary provided by the O.P. No.3 shows handicap of the O. Ps in furtherance of their treatment effects therefore and finally the victim with her baby in the clutches of death was discharged on 29.12.16. by the OPs, and as such the Baby Discharge Summary contains, Advice 'Now this baby is referred to any higher centre for further management and evaluation' and thus the OPs tinkered with their solemn job that the ailing bud was soon rushed to P.G. Hospital in Kolkata on 29.12. 16 where the perfunctory money making rendered and abysmal medical service rendered by the OPs have been manifested like a broad day light and when the experts in P.G. Hospital opined a shocking end of the baby's life soon, the complainant got the duo discharged and set out for Malda on 30.12. 16 and a little bud died up before it could flotsam, on the way home in Malda the unfortunate baby breathed it last as it were a wounded petrel on 30.12.16.
That the next day in the morning the poor baby was buried amid a huge crowd of men, women and Muslim clerics entombing all its possibilities and dreams of its parents and other kins.
That yet the loss of life and wealth has to be retrieved in terms of money from the erring doctor (s) and his venue of treatment i.e., the O. Ps who abjectly failed to pay adequate and subtle attention to their medical care for such a delicate case which they handled perfunctorily and gave birth to a fiasco as far as their performance is concerned, not to mention the O.P. No.1 came out a disaster as a doctor.
That the O.Ps. were in the know of things about the patient prepared for the 3rd delivery and medical experts opined that the instant one needed no application of C/s although the O. Ps in order to inflate the bills as treatment/ delivery devised a ploy that has obscured actual necessity which they trusted on lining their pocket and thus makes a person tick to vivid.
That the wretched mother of the prematurely dead child is undergoing medical care for her physical and mental health while convalescence is not yet marked much although thousands and thousands are being lavished on abundantly so they could be mentally and physically able to assent towards further conception so already resolved by her family and would not turn her mental and physical health and slump caused by the former too good accounts.
The complainant claimed to the compensation including medical expenses incurred to the time of Rs. 92,00,000/-.
The OP NO.1 P. K. Das and OP No. 3 Malda nursing home has disputed the consumer complaint and filed Joint written version.
The case of the Op’s is that Dr. Pralay Kumar Das is the OP No. 1 in the instant complaint case. He is a Medical Practitioner by profession, specialized in the field of Obstetrics and Gynaecology and is presently associated with Private Practice. After completing his MBBS from Calcutta University in the year 1974. He had further done his DGO under Calcutta University in the year 1975, MS (O&G) in the year 1978. That apart, he is a Practicing Obstetrician with more than 40 years of practicing experience. He joined West Bengal Health Service in the year 1979, served as Medical Officer (Gynaecologist) at Dinhata S.D. Hospital, Coochbehar, M.R. Bangur Hospital, Calcutta and finally at Malda District Hospital till his voluntary retirement on 31.08.2001.
That Malda Nursing Home is the OP No.3 in the instant complaint case. This Nursing Home is very renowned nursing home at the city having its registered office at B.G. Road, Mokdumpur, Dist- Malda, that Samsun Nehar, (hereinafter referred to as the patient), the wife of the complainant herein, was a 22 years old female who attended the chamber of OP No.1 doctor for the first time for her antenatal checkup. It is imperative to note that it was the second time pregnancy (2nd gravida) of the patient and her first pregnancy (twin pregnancy) delivered vaginally 2 years ago. Be it noted that the last menstrual period of the said patient was on 15/03/2016 and her urine for pregnancy test (USG) was positive.
However, the OP No.1 doctor had clinically examined the patient. After such examination it transpired from the report that weight of the patient was 43.3 kgs, BP was normal and per abdomen upper border of uterus was just palpable.
Moreover, the patient was also advised for USG examination for obstetric parameters and was advised for next checkup after 4 weeks.
On this day the patient, as per the advice of OP No. l doctor, had performed USG. However, it would transpire from the said report that she was 10-11 weeks of pregnancy.
After 6 weeks, the patient namely Samsun Nehar had visited second time at the OP No.1 doctor's chamber and accordingly the OP No.1 doctor had duly examined the patient
The patient was also advised to attend for her next checkup after 4 weeks. That the patient was advised USG examination for anomaly scan (O.Ps Level II) and to continue Iron Capsule and further Calcium was added. It is important to note that anomaly scan was held to identify any congenital birth defect. Thereafter the patient was advised to visit the chamber of the OP No.1 doctor after 4 weeks.
That the patient did not comply with the advice of the OP No.1 doctor. Moreover, the patient did not perform USG examination for anomaly scan, although the patient did one obstetric (Level-1) on 09/09/2016 in lieu of anomaly scan (USG Obstetric Level II) which then revealed "Single live normal intrauterine gestation of 24-25 weeks. Presentation changing at present". It is further noted that USG examination for anomaly scan which was advised and subsequently not complied by the complainant's wife, the patient herein, also known as "USG Obstetric Level II".
Kindly appreciate that the ideal frequency of antenatal visit is that checkup is done in an interval of 4 weeks up to 28 weeks and thereafter at interval of 2 weeks up to 36 weeks and thereafter weekly till delivery.
The OP No.1 doctor had only prescribed those drugs that are recommended in pregnancy, i.e., Folic Acid, Hematinic (Iron preparation), Calcium preparation, Immunization against Tetanus and which is the standard and accepted medical protocol in medical science.
On 22/12/2016 the wife of the complainant, patient herein, was having pain since noon and presented in the Emergency Ward of the OP No.3 Hospital at around 8:40 p.m. with labor pain the OP No.1 doctor had discussed with the complainant, the husband of the patient herein, about the findings of the patient, prognosis and mode of delivery. As the labor was not progressing and there was sign of fetal distress, the husband of the Patient opted for Caesarean Section. Be it noted that with the written consent of the complainant, the husband of the patient herein, the OP No.1 doctor had performed Emergency Caesarean Section at the OP No.3 Nursing Home.
Moreover, the OT had started at around 7:55 a.m. and which was ended on 8:45 a.m. and a male child with multiple structural anomaly (Malformation) was born at around 8:11 a.m. During such operation Dr. Tushar Kanti Das, a Pediatrician, the OP No.2 herein, was present at the OT. Further the said OP doctor immediately attended the baby at the time of birth and OP No.2 was the first one who had detected the anomalies and duly informed to the complainant that the said baby is having multiple congenital abnormalities and prognosis not good.
It is imperative to note that the complainant was advised to transfer his baby to higher centre immediately for better management by the OP No.2 doctor.
The husband of the patient, complainant herein initially declined to take the baby to higher centre and asked the authority of the OP No.3 Nursing home to keep his baby in the said OP Nursing Home. During such time the baby was under the care and treatment of the OP No.2 Doctor, i.e., Dr. Tushar Kanti Das, a pediatrician of the OP No.3 Nursing Home. Thereafter, the post operative period was uneventful. Stitches were removed on 6th post operative day and the patient was discharged on 29/12/2016 on clinically stable condition.
The complainant in order to prove his case tenders his examination -in-chief by swearing affidavit and replied the interrogatories of the OP.
The Op No1. Dr. P. K. Das and one Dr. B.B. Basu as OPW 2 and they were cross-examined by the complainant through interrogatories and reply. The complainant beside documentory evidences filed additional evidences through written note of arguments and it was countered by Op No1 and 3 by their WNA.
Ld. Advocate Mr. S. Nabi and Mr. D. Bhowmik has conducted the case of the complainant. The contesting Op’s are being represented through Ld. Advocate Mr. C. Chakrabarty and others.
Both sides filed W.N.A.
The Op No.2 did not contest the case.
Points for adjudication:-
- Is the complainant a consumer and has any locus standi to file the case?
- Has the complainant any right cause of action?
- Had there any medical negligence and deficiency of service on the part of the Ops?
- Is the complainant entitled to get the relieves as prayed for?
Decision with reasons
Point No. 1 & 2:- These two points are taken up for discussion. The allegation of the complainant in this dispute relates to medical negligence and deficiency of service of the Ops while the wife of the complainant had delivered the birth of a child under the care of OP No. 1 at the nursing home of OP No. 3 and OP No. 2 was attached for the treatment of the child who was born on 23.13.2016 under the care of O.P No. 1.
Said wife of the complainant by executing a power of attorney has authorized her husband/complainant to register and to look after the consumer complaint and prayed for getting compensation for failure of the O.Ps is discharging their duties in a competent manner as a professional practititoners and the complainant side raised allegations that due to uncare and negligence at the time of medical treatment, the complainant has lost his son.
So, the complainant has the legal right to institute this consumer dispute as a bonafide consumer defined in section 2(1) (d) of C.P. Act, 1986. And the instant case was filed within statutory period of Limitations.
So this two points are answered in favour of the complainant.
Point No 3 & 4: - These two points are very vital to the merit of the case. This is a case of medical negligence and deficiency of service on the part of medical practitioners.
Admitted position is that since the initial stage of pregnancy of the wife of complainant Samsuar Nahar. was under the care of Op No 1 since 01.06.2016 and at that time it was defected that the LMP of the patient was on 15.03.2016 and gestation period covered 10/11 weeks and as per WHO protocol iron capsule and Folic Acid was recommended by the attending physician and adviced for U.S G, routine blood tests etc. The USG report found the foetus was normal and changing.
An “obstetric sonography” was recommended on 09.09.16 which reveals the baby in the womb 24-25 weeks was normal, moving and changing.
No infirmity of the baby in the womb was also visible on the date of admission of the patient for delivery on 22.12.2016. But after post delivery on 23.12.2016 through LUCS, first time the malformation of the baby was detected in distress condition and patient summery speaks that the baby was discharged and referred for treatment to a higher centre as the OP No.3 Nursing Home was not well equipped with for the necessary treatment of the baby.
It is argued on the part of the complainant that Medical profession is ever regarded as one of a few noblest professions all over the globe because of its altruistic devotion and selfless service far away from monetary pursuit But the present day situations prevailing in almost every health care unit do herald an alarming opposite lowdown by far.
It involves a good number of reasons; socialization process of the medical professionals didn't take it's root, lack of professional skills and capabilities, burning desire for money. carelessness and callousness, and so forth are a few major factors that are at work with such professionals.
If one sees the record of professional care and treatment of Shamsun Nehar for at least 6 months who regularly visited ante-natal clinic of Dr. P. K. Das, a renowned gynecologist of Malda Nursing Home which he owns, he can say with ease that it is a case of gross medical negligence. But it is a matter of great concern that such negligent doctors never try to learn from their treatment follies and remain as cool as before otherwise they could ward off what have kept them far away from success and credit. Another important factor that inhibits augmentation of practical knowledge and skills is their lofty arrogance and deep callousness. Over and above, they vent their spleen on the patients under their care and control who are as if subjugated. Once the behavior syndrome between the doctor and patient loses compatibility and (congenia Negligence) is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarilly regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Rantanlal and Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove. holds good, Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply.
So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to sue special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident.
res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in case of torts and helps in determining the onus of proof in actions relating to negligence.
It is clear even a simple lack of care would incur civil liability like damages. At the same time, it cannot amount to criminal negligence.
It is argued that the questions arise how, why and when the baby in the womb has turned abnormal, ALTHROUGH THE Op doctors did not trace out an iofa of abnormalities in the course of Month’s treatment and medication by the Op’s.
The main allegation of the complainant was countered on the part of ops to the score the treatment rendered on the part of Op’s utilizing their utmost skill, knowledge and experience as obstetrics and reasonable degree of care was adopted.
It is further pointed out by the OP’s that the complainant and his wife did not follow up the advices of the doctor as prescribed in the prescription dated 27.08.2016 for having an USD for obstetric para meter, anomaly scan level-2, which was not followed and without having any anomaly scan the malformation of the body could not be possible to detect.
So, the final defense of the case of OP No.1 confined to the score that if the anomaly scan was held, the malformation of the baby could have been detected and in that situation the process of delivery of birth through L.U.C.S. could not be adopted. The Op No.1 stick to his suggestion in his prescription dated 27.08.2016. Where he advised sonography of obstetric parameter (anomaly Sean) and accordingly the patient party has obtained the obstetric sonography and with the report the patient attended the next follow up medical check up and has shown the sonography and report and doctor found that normal intrauterine gestation of 24/25 weeks.
The OP-1 (doctor) was satisfied with such obstetric sonography and did not advice for further sonography of Level -2 anomaly scan.
But at present the OP’s now deliberately say that without having scan there was possibility of detection of malformation of the baby and it that case, in lieu of adopting L.U.C.S. Process, the alternative method could have opted for the process of delivery.
So, negligence prese on the part of OP’s are very much visible.
After post-delivery, while a malformation baby with severe distress was born, The OP’s then and then wanted to shift their liability and responsibility and discharged the baby leaving the newly born under the mercy of god without taking proper care. The unfortunate parents tried to save the life of the new born on the next date of discharge rushed towards Kolkata but on the pathway on 30.12.2016, they lost the newly born baby forever.
It is contended on the part of the Op’s that the complainants have not submitted any opinion of the medical expert prove the negligence of Op’s on the other hand a renowned medical expert OPW-2 has tendered evidence who on oath stated that standard treatment and proper medical care were exercised on the part of OP’s.
In this case the complainant was advised to have a medical expect opinion to assess the dispute. He produced the medical certificate of a renowned physician Dr. Sikha Agarwal. But inspite of court summon, Sikha Agarwal never come to authenticate her expert opinion by giving evidence on dock.
On the other hand, if medical negligence on the part of attending physicians are reflected in the open air, then expert opining in not mandatory one.
Here, in this case, the doctrine of the maxima Res IPSA loquitor is applicable if the negligence per se is established.
The OP.1 says anonmoly scan level -2 was suggested while his prescription dated 27.08.2016 speaks actually obstetric para meter scan(anomaly) was suggested. The doctor relied upon the said obstetric parameter scan and did not further suggest for level-2 anomaly scan. Doctor (OP-1) through the process of L.U.C.S. delivered the baby relying upon obstetric parameter scan report and after detection of mal formation, he tried to evade the blame of his wrong going and negligence. Dr. Sika Agarwal in her medical certificate observed the L.U.C.S. process adopted in his case was not appropriate though such observation was not authenticated by her by adducing evidences.
The Op No. 2, pediatricians also attended the patient at the time of L.U.C.S delivery on 23 /12/2016 detected the Malformation of the newly born with congenital of abnormalities and without taking proper care then and then advised the patient party to transfer the newly born to higher center and proper medication and treatment to the newly born though his mother was discharged on 29/12/2016.
So, the clear case of negligence and apathy and uncareness on the part of the all-OPs are clearly established beyond any doubt and they should not be escaped from the civil liability as the victim mother was all along under the treatment of Ops and they could not detect any malformation of the child in the womb till the birth and tried to escape the liability without any thinking to keep the baby under the mercy of the god. Their sheer and utter negligence caused severe mental shock to the parents who has lost their new bud.
Therefore, for the established medical negligence and deficiency of service on the part of OPs., the complainant and his wife has lost their child and suffered huge mental sufferings and pain which cannot be compensated by money.
However, as they have approached for monetary compensation for their sufferings to the tune of Rs. 92,00,000/-, this Bench thinks that it will be justified to fix the amount of compensation of Rs. 3,00,000/- (Rs. Three lacs) as lumpsum and as they have fought a long legal battle, Rs. 20,000/- as litigation cost should be awarded.
These two points are hereby answered in favour of the complainant.
Hence, it is ordered
That the instant consumer complaint filed by MD. Obaiyed Mia under Section 17 of C.P. Act, 1986 is hereby allowed on contest against O.P No. 1 & 3 and ex-parte against O.P No. 2 with cost.
The O.P. No. 1 to 3 are jointly and severally directed to pay Rs. 3,00,000/- as compensation and Rs. 20,000/- as litigation cost to the complainant within two months, failing which with interest@ 6% per-annum will be carried on.
Let a copy of this order be supplied to the parties free of cost.
