Ld. Advocate(s)
For Complainant: Subhasis Roy
For OP/OPs : Kajal Ghosh
Date of filing of the case :02.04.2015
Date of Disposal of the case : 19.04.2023
Final Order / Judgment dtd.19.04.2023
Complainants Madahabi Saha had 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 praying for compensation amounting to Rs.19,00,000.00(Rupees Nineteen Lakhs), and Rs.30,000.00(Rupees Thirty Thousand) as cost of medical treatment and litigation cost.
It is the allegation of the complainant that she became pregnant in the month of December, 2013 and for avoiding future complications she was treated by a Specialised doctor i.e. O.P. No.4 at Krishnagar. She was under his treatment till 27.06.2014. As per advise of OP No.4 USG examination on her body was done on 04.04.2014 at Nadia Diagnostic Centre and in the said report it has stated that nothing wrong was found regarding the foetal except contents of liquid was less than average.
On 23.08.2014 complainant noticed some problem and on that time OP No.4 was not available and she was produced at the chamber of OP NO.1, a renowned gynaecologist of Krishnagar. On that time OP No.1 advised the complainant to take admission at the nursing home of OP No.3. On that date complainant took admission in the nursing home of OP No.3 as indoor patient and on that date USG examination on her body was done at Hrik Diagnostics Centre and as per said
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report colour flow dopoler imaging shows absent diastolic flow in the umbilitical artery. Thereafter OP No.1 decided to caesarean section on that very date.
On that date at 10:14 P.M. LUCS was done by OP No.1 on the body of the complainant and a male baby was born and OP No.2 was called by the OP No.3 for the check up and treatment of the new born baby. Said baby was under the treatment of OP No.2 till 26.08.2014 and thereafter condition of the male born baby was found serious and the new born baby was handed over to the family member of the complainant for its better treatment.
Thereafter family members of the complainant took the baby to the District Hospital and thereafter said baby was transferred to Shaktinagar Hospital and baby was admitted there. On that time they found injuries and stitches at its front sides of left ear and same has been noted in the bed head ticket issued from the Hospital.
On the very next day the baby was expired and local authority informed the matter to local P.S. and local P.S. took away the dead body of the said baby to N.R.S. Medical College and Hospital for performing P.M. Examination. After P.M. Examination it has been noted in the report that death was due to effect of ante-mortem injuries as noted above associate with low birth weight and congenital malformation. Form the P.M. report it is clear that the new born baby sustained the aforesaid injuries prior to death which was caused by the OP. NO.1 at the time of LUCS and OP No.2 and 3 completely suppressed the fact from 23.08.2014 to 26.08.2014 to the complainant and his family. OP No.1-3 during course of treatment negligently caused injury over the body of the new born baby as a result of which the complainant lost her child for ever and therefore complainant and her family got mental pain and agony. By suppressing the actual fact after birth of the baby OP No.1-3 adopted unfair trade practice in the eye of law.
Hence, this case.
OP No.1 filed W/V and denied the entire allegations of the complaint and further stated that there was no deficiency of service and there was no negligence on his part.
OP No.2 - 4 jointly filed W/V and denied the entire allegations of the complainant and further stated that there was no negligence on their part.
Trial
During trial complainant Madahabi Saha filed affidavit in chief.
OP No.1 Dr. Sushil Kumar Saha filed affidavit in chief.
OP No.2 Dr. Tapan Kumar Das filed affidavit in chief.
Juthika Biswas, proprietor of Sunview Nursing Home i.e. OP No.3 filed affidavit in chief.
OP No.4 Dr. Nirin Patra, filed affidavit in chief.
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Documents
Complainant produced some documents viz :
- Original prescription of Dr. N. Patra dtd. 03.032014. 04.04.2014, 31.05.2014 & 27.06.2014...............(Three sheets)
- Discharge Certificate issued by Sunview Maternity & Nursing Home.........(one sheet).......(Original).
- Prescription of Dr. Sushil Saha dtd.23.08.2014.........(One sheet).......(Original)
- Referral Card issued By Department of Health and Family Welfare.........(Original).......(One sheet)
- Cremation / Burial Certificate of deceased child dated 29.08.2014..........(One sheet) ...........(Original)
Letter of CMOH, Nadia dated 02.01.2017 addressed to the Superintendent, District Hospital, Nadia which has been filed before this Commission and said documents contain the following documents:-
1) Copy of order of this Commission.........one sheet.......(Xerox)
2) Discharge Certificate issued by Sunview Maternity & Nursing Home.........one sheet.......(Xerox)........(Annex-1)
3) Document of Sunview Maternity & Nursing Home.......one sheet.....(Xerox)......(Annex-2)
4) Document of Sunview Maternity & Nursing Home regarding recording of BP of Madhabi Saha.......one sheet.....(Xerox)
5) Form of Admission and Discharge of Patient issued by Sunview Maternity & Nursing Home.....one sheet...(Xerox).....(Annex-3)
6) Document of Sunview Maternity & Nursing Home....one sheet...(Xerox).....(Annex-4)
7) Document of Sunview Maternity & Nursing Home....one sheet...(Xerox).....(Annex-5)
8) Document of Sunview Maternity & Nursing Home....one sheet...(Xerox).....(Annex-6)
9) Document of Department of Health and Family Welfare....one sheet.....(Xerox).....(Annex-7)
10) Document of Discharge issued by Department of Health and Family Welfare, W.B.....one sheet...(Xerox).....(Annex-8)
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11) Document relating to shifting of Dead Body to Police Morgue one sheet...(Xerox).....(Annex-8)
12) Surathal Report (Inquest Report) under Section 174 C.R.P.C......one sheet...(Xerox).....(Annex-9)
13) Referral Card issued by Department of Health and Family Welfare...... one sheet...(Xerox)
14) Post Mortem Report of Baby of Madhabi Saha, age 5 days...... one sheet...(Xerox)........(Annex-10)
Report of CMOH, Nadia dated 19.01.2017 addressed to the President, D.C.D.R.F, Nadia which contains the following documents:-
- Letter of Superintendent, District Hospital, Nadia dtd. 18.01.2017 addressed to CMOH, Nadia..........(One sheet)..........(Xerox)
- Letter of Dr. S.S. Saha, M.O. District, Hospital, Nadia addressed to I.C, Kotwali..........(One sheet)........(Xerox)
- Letter of Superintendent, District Hospital, Nadia dtd. 19.01.2017 addressed to CMOH, Nadia..........(One sheet)..........(Xerox)
- Report of Medical Board dtd. 31.07.2015..........(One sheet).........(Xerox)
- Discharge Certificate issued by Sunview Maternity & Nursing Home...........(One sheet)........(Xerox)
- Document of Sunview Maternity & Nursing Home..........(One sheet).........(Xerox)
- Document of Sunview Maternity & Nursing Home dtd. 23.08.2014........(One sheet).........(Xerox)
- Document Form of Admission and Discharge of Patient issued by Sunview Maternity & Nursing Home .......(One sheet)......(Xerox)
- Document of Sunview Maternity & Nursing Home dtd. 23.08.2014 at 9:50 p.m...........(One sheet)........(Xerox)
10)Document of Sunview Maternity & Nursing Home dtd. 23.08.2014 at 10:30p.m..........(One sheet)........(Xerox)
11)Document of Sunview Maternity & Nursing Home dtd. 23.08.2014 at 10:15 p.m...........(One sheet)........(Xerox)
12) Document of Bed Head ticket issued by Department of Health and Family Welfare, Govt. Of W.B........(One sheet)........(Xerox)
13) Document of Discharge issued by Department of Health and Family Welfare, W.B........(One sheet).........(Xerox)
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14) Document of relating to shifting of Dead Body to Police Morgue dtd. 27.08.2014......... (one sheet).........(Xerox)
15) Surathal Report (Inquest Report) under Section 174 C.R.P.C......one sheet...(Xerox).
16) Referral Card issued by Department of Health and Family Welfare...... one sheet...(Xerox)
OP NO.1 filed the following documents:-
- F.I. R. Certified copy............(Four sheets)..........(Original)
- Certified copy of Final Form/Report..........(Four sheets)......(Original)
- Order sheet of Ld. A.C.J.M., Nadia at Krishnagar........(One sheet).......(Original)
BRIEF NOTES OF ARGUMENT
Complainant in support of his case filed Brief Notes of Argument dtd. 05.05.2017.
OP No.1 in support of his case filed Brief Notes of Argument dtd. 21.06.2017.
OP No.1 in support of his case filed Brief Notes of Argument dtd. 10.11.2022.
OP No.2 to 4 in support of their case filed Brief Notes of Argument dtd. 05.05.2017.
Decision with Reasons
It is the allegation of the complainant as mentioned in the petition of complaint that OP No.1-4 were negligent relating to treatment of the complainant and her body as a result baby of the complainant sustained injury and lastly died.
All the opposite parties in their W/V flatly denied the allegation of medical negligence and deficiency in service. They separately stated that there was no negligence on their part. But they could not give any satisfactory explanation in their W/V and evidence as to why the baby of the complainant sustained injury at the time of LUCS.
Let us see the P.M. Report of the baby which was done immediately after the death of the baby. We find that Dr. Tanmoy Sardar (M.D.), Demonstrator, Department of forensic science and state medicine, N.R.S. Medical College Kolkata conducted the aforesaid P.M. Examination.
During examination he found some injuries over the aforesaid baby i.e. baby of Madhabi Saha, age 5 days male, hindu son of Pannallal Saha. He noted the injury which was found over the body of the aforesaid baby which reads as under:-
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Injuries: (1) Stitched up surgically made incision with 8 stitches measuring 0.7´´ in length placed vertically just in front of Lt ear. On removal of the stitches the wound shows depth up to periosteal surface of bone & extravasation of blood in the underlying soft tissue. (2) Stitched up surgically made incision with 8 stitches, measuring 1” in length placed vertically just behind to pina of Lt ear. On removal of the stitches the wound shows depth up to muscle layer & extravastion of blood in the underlying soft tissue. (3) Scalp haematoma measuring 3´´X2´´over it temporo-parietal region. (4) Scalp haematoma measuring 3´´X2´´over Rt temporo-parietal region. (5) Subdural haemorrhage measuring 5´´X3.5´´ over Rt frontal-parietal-temporal lobes with flattering of gyri & widening of sulci. The extravasations are bluish red in colour.
All the injuries show evidence of vital reaction. No other injury either revealed of concealed could be detected even after careful dissection & examination with help of a hand lens.
After completion of aforesaid P.M. Examination he opined that Death was due to effects of ante-mortem injuries as noted above associated with low birth weight & congenital malformation.
In the present case, it is the allegation of the complainant that OP NO.1 Dr. Sushil Kumar Saha being a gynaecologist conducted caesarean operation of the complainant. Complainant gave birth one male child. During caesarean operation said baby sustained injury and lastly died. On careful perusal of the P.M. Report of the said baby, we find that Dr. Tanmoy Sarkar (M.D) Administered, Department of Forensic State Medicine M.K.S. medial negligent and hospital conducted the said P.M. examination and he found certain injuries which we have said earlier. Dr. Tanmoy Sarkar after completion of examination of baby of Madhabi Saha came to the conclusion that death of the baby of Madhabi Saha aged 5 days was due to effects of intimated injuries as noted above associated with low birth, weight and congenital malformations. As per the said injury report Dr. Sarder found surgically made incision with 8 stitches measuring 0.7 inch in length placed vertical just in front of left ear. On removal of the stitched he found that aforesaid wound shows both up to periostel surface of born. He also found another surgically made incision which contains eight stitches measuring one inch in length placed vertically just behind to pinna of left ear. On removal, he found depth upto muscle layer. From the aforesaid two injuries we find those injuries were made during caesarean operation and Dr. Sarkar also stated the same in his report. OP No.1 in his W.V also admitted that aforesaid injuries were made upon the baby of the complainant during caesarean section. He gave an explanation in his W/V that during caesarean section operation superficial / external accidental injury ( by surgical blade) while putting incision on the uterine wall occurred on the scalp of
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gross IUGR ( marasmic, malnourished) baby’s head on left side in front and back of left ear of baby. The alleged injury was only skin depth as there was no adequate fluid ( liquor amni) and there was asymptomatic anterior placenta previa, the baby’s head flushed with uterine wall musculature and opposite party OP NO.1 had to go through the placental tissues to deliver the baby from uterine cavity .
He tried to established that there was no fault on his part for the aforesaid injury. In this context, we have carefully gone through the prescription of OP NO.4 dated 03.08.2014, 22.08.2014, 17.01.2014,04.04.2014,31.05.2014 and 27.06.2014, we find that OP NO.4 noted about the condition of patient and foetus what he find at the time of examination on those days. On careful scrutiny of the entries of aforesaid dates, we find that no such entry regarding abnormality of the pregnancy in the observation of OP NO.4 on those days. So it is the clear before us that from 03.08.2014 to 27.06.2014 OP NO.4 did not find any symptom about insufficient fluid in the uterus which is below the normal level. If he would got any such symptom definitely, he would advise for any investigation on this point. Moreover, his entries indicates no abnormality of the foetus. Even OP No.1 did not find any such symptom when he examined the complainant for the first time. Even he did not arrange for any other investigation for confirmation on the point that there was no sufficient liquor in the uterus for caesarean operation. No such indication was given to the complainant. Moreover, OP NO.2 and 3 not yet produced any original document relating to treatment of complainant and her baby.
As per record caesarean operation was done on 23.08.2014 at 10:14 p.m. On perusal of prescription of OP NO.1 we find that OP NO.1 examined the patient on 23.08.2014 and he advised USG of complainant but any such USG of the complainant which was arranged during admission of complainant has been produced before this Commission. We failed to understand as to why OP NO.1 suppressed the said document? As to why OP NO.1 did not produce said document before this Commission? In case of such types of suppression of vital documents we have no other alternative but to take adverse presumption against the OP NO.1. It is clear before us OP NO.1 is trying to suppress the actual fact by raising serious of reasons.OP NO.1 gave an explanation in his W/V and evidence that due to accident such type of injuries were done in the aforesaid two places of the baby. He produced Xerox copy of three pages of text book of Obstetrics of D.C. Dutta. He also produced two pages of journal of the Indian Medical Association volume 115, number 03, March, 2017,Kolkata. On perusal of second document we find one article has been published in the said medical journal in the title Accidental Foetal Injuries during caesarean section deliveries by J. B. Sharma, M Goyel, S. Kumar, K.K. Roy. We have carefully gone through
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the same but one thing is clear before us that doctor must be very cautious at the time of caesarean operation so that no injury can take place in the body of the baby in any manero. Contents of those two text books does not authorise any doctor to cause injury in negligent manner over the body of any baby at the time of caesarean operation.
In the journal it has mentioned that incidence of accidental foetal injury during caesarean section delivery various from 0.7 to 1.9 %. The various risk factors for foetal injuries including emergency caesarean section for dangerous and got propels , second stage on caesarean section, ruptured membrane, surgeon experience but in the present case no such occasion arose. From the aforesaid discussion it is clear before us that with the help of aforesaid text book and journals OP NO.1 failed to establish that he is not responsible for the aforesaid injury of the baby which was done at that time caesarean section of the complainant.
On careful perusal of record we find that injury over the body of the baby was first time brought to the notice of the complainant and patient party on 26.08.2014 when baby was shifted to District Hospital, Krishnagar as condition of the patient was deteriorated.We find from annexure 7 that baby was produced for the first time before the District Hospital at 4:25 p .m. At that time attending doctor noted over the bed head ticket that delivery outside (LSCS) he also noted weight of the baby was 1.6 kg. On that time he found injuries near the left ear which were covered by stitches. On that time he showed the same to the patient party. Shri Ananta Saha Member of patient party at that said the same and he made a note on the bed head ticket. He saw the aforesaid stitches near the left ear.
Ld. Advocate for the complainant argued before this Commission that they saw the same for the first time and came of know about the injury of the baby. OP NO.1, OP NO.2 and OP NO.3 did not disclose till 26.08.2014 that said baby sustained injury during caesarean section. He further argued that immediately after delivery of the baby, baby was shown to the complainant. Elder brother of the complainant namely Nayan Sarkar made entries over bed head ticket on 23.08.2014 that they said the baby. There is no note over bed head ticket that OP NO.1-3 showed the patient party about the injury of the baby which was caused during caesarean operation. There is no explanation in the W/V or in the affidavit in chief of OP NO.1-3 as to why they did not show the injury of the baby to the patient party or the complainant. Such type of suppression is very dangerous proposition and no doubt an attempt to suppress the actual fact. During hearing Ld. Adv. for the OP NO.1-3 failed to give satisfactory explanation before this Commission as to why they did not show the injury of the baby to the complainant or the patient party. As to why they did not disclose that aforesaid baby sustained injury during
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caesarean operation. We find from the bed head ticket that on 26.08.2014 patient party took away the baby to Sadar Hospital for treatment. On perusal of W/V of OP NO.1, we find that he stated in page six that during caesarean operation baby sustained injury which was upto skin death. On perusal of P.M. Report we find that the Doctor Tapan Sardar who conducted P.M. Examination stated in his report that one stitch was depth upto periosteal surface of born and extraversions of blood in the underlying soft stitch. In another stitch he found it was measuring one inch and depth upto muscle layer and extraversions of blood in the underlying soft tissue. So it s clear before us that OP NO.1 made false statement in the W/V that aforesaid injuries were upto skin death. We failed to understand as to why the OP NO.1 being a renowned doctor took the shelter of false statement. In this situation we do not find any reason to disbelieve the entry of P.M. doctors. So it is clear before this Commission that OP NO.1 made false statement in the W/V and affidavit in chief that aforesaid injury was upto skin death. Such type of attempt is nothing but to escape himself from his negligent act. During hearing of this case Ld. Adv. for the OP No.1 failed to give any satisfactory explanation before us as to why OP NO.1 took shelter of false statement.
During hearing Ld. Adv. for the OP No.1 argued that one criminal case was started u/s 304A IPC vide Kotwali P.S. case 719/14 dated 27.08.2014 and said case was ended with final report. I.O of the said case namely Santosh Saha stated in his report that one medical board was formed and said medical board opined that there is no conclusive evidence of any negligence on the patient of either doctor Sushil Kumar Saha or Doctor T.Das in the management of the above noted case. Placing reliance upon the said opinion I.O stated in his final report that during investigation sufficient evidence could not be proved against its FIR named accused person namely Dr. Sushil Kumar Saha, Dr. T. Das. So he prayed for necessary order of criminal court. Latest order of the said case not yet been produced by the OP No.l so we are in dark what was the fate of the said criminal case.
Ld. Adv. for the OP NO.1 argued before this Commission that this Commission vide order number 37 dated 23.12.2016 called for report from CMOH, Nadia in the connection with case no.49114 dated 27.07.2014 regarding death of a child of Madhabi Saha. Said order was sent to him vide no.31/CF/N/16. In compliance of the said order he made a to this Commission vide no.CMOH-NAD/861 dated 19.01.2017. He enclosed Memo No.NDH/272 dated 18.01.2017 of Doctor Sushil Kumar Saha, M.O., copy of memo no.NDH 309 dated 19.01.2017 with the report of medical board. We find that medical board were framed consisting four doctor and they prepared the report on 31.07.2015. Ld. Adv. for the OP NO.1 further argued that as no latches was found by the members of
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the medical board so it can be clearly said that no negligence has caused on the part of OP NO.1, OP NO.2-3.
It is known to everybody that decision of a criminal court passed in a criminal case is not binding upon before this Commission, so it can be said that aforesaid criminal case if ended with the final report does not mean that on the basis said report case against OP NO.1-3 would be dismissed.
Moreover, it is also known to everybody that decision of a medical board is not the conclusive prove. It is also known everybody that this Consumer Commission is not bound to dismiss the case against any person on the basis of report of medical board.
However, we have carefully gone through the medical report. Medical board opined in para-3 that scalpel incised wound was produced on the scalp of the baby in front and behind left ear and this kind of injury can occur in caesarean section operation done on patient with diminished liquor in spite of adherence to safe surgical practices. We have stated earlier that in the present case OP NO.1 failed to establish by medical report that there was diminished liquor in the uterus of complainant. In para-4 they mentioned there was no evidence of bleeding from the stitch site during the entire period of stay of the baby in the nursing home for three days. We have astonished how such type of incident can take place? In the present case doctor who treated the baby intentionally not noted that bleeding was came out. We are of the firmed view that doctor who treated the baby took attempt to save themselves by suppressing the fact that no blood came out from the injury. There is no explanation in the report of medical board or in the bed head ticket as to why the condition of the baby became deteriorated after three days when no blood were came out. Very sorry to say that members of the medical board, in spite of stating the actual fact tried to save the doctors by their aforesaid acts. Moreover, it is clear before us that report of medical board is not binding upon the Consumer Commission and Consumer Commission shall dismiss any case on the basis of report of medical board. From the aforesaid discussion it is clear this Commission that doctors of the aforesaid medical board did not try to unearth the actual situation by expressing their valuable opinion on the basis of their experience and medical knowledge rather they tried to save the OP NO.1-3 by showing jugglery of reasons which were not supported by the documents on the record.
Having regard to the aforesaid discussion it is clear before us that OP NO.1-3 are totally responsible for the premature death of the baby of complainant Madhabi Saha who lost his life in the early stage. This valuable child would be the, valuable nation of the society. Said baby of five days lost his life due to gross negligence of OP NO.1-3 and specially
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due to the latches of OP NO.1, as OP NO.1 did not use the surgical blood properly at that time caesarean operation of the complainant. If he would very cautious, and took proper care then there was every possibility to save the life of aforesaid child. So we are of the opinion that OP NO.1-3 should be asked to pay adequate compensation for the untime death of aforesaid baby.
In the result present case succeeds.
Hence,
It is
Ordered
that the present case vide no.CC/53/2015 be and the same is allowed on contest against OP No.1-3 and dismissed on contest against OP No.4 and dismissed ex-parte against OP No. 5 with cost of Rs.10,000/- (Rupees Ten thousand) to be paid by OP No.1-3 to the complainant.
OP No.1-3 jointly or severally are directed to pay Rs.5,00,000/- (Rupees Five lakh) as compensation in favour of the complainant within one month from this date of order failing which aforesaid amount shall carry interest @ 9% per annum from this date to till the date of actual payment.
Let a copy of this Final order be supplied to the complainant and OP NO.1-5 as free of cost.
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
........................................
MEMBER
(NIROD BARAN ROY CHOWDHURY)
