Hon'ble Mr. Sudip Niyogi, President
This is a case of medical negligence filed by the Complainant u/s 12 of the C.P. Act, 1986. Originally, the Complaint was made against OP No.1 and 2 only. However, subsequently, at different phases, OP No.3, 4 and 5 were added.
The case of the Complainant is that his wife Smt. Rupa Sha, since deceased, had some abdominal pain and consulted the Doctor i.e. OP No.1 at Cooch Behar MJN Hospital and having examined, the OP No.1 gave some medicines and advised for USG of upper abdomen. Later, having gone through the USG report, OP No.1 opined a Gall Bladder stone ( Cholelitheasis ) and advised for operation. Accordingly, the said patient got admitted at the OP No.2 Nursing Home on 07.08.2014 on a package of Rs.15,000/- including cost of surgery. On the same day, at about 7 PM, operation was done by OP No.1 and the Gall Bladder was handed over to the family members of the patient for Histopathological test.
Subsequently, the said patient started feeling acute pain in abdomen and her condition got deteriorated and the attending nurses were informed to intimate the Doctor i.e. OP No.1 but they did not pay any heed to their request and no life saving equipment was given to her. On the next day, i.e. on 08.08.2014 at about 4.30 AM, OP No.1 came to visit the patient at OP No.2 Nursing Home and on examination, he advised for 2 bottles of blood, as there was profuse bleeding. The patient party collected blood and delivered the same to the Nursing Home, but there was no betterment in the condition of the said patient. It is alleged that the said patient was shifted to Shila Nursing Home on 08.08.2014 without informing the Complainant, where she expired due to lack of ordinary care and skill. It is alleged on behalf of the Complainant that no pre-operative and post-operative measures were taken in respect of the said patient and as a result, she met her untimely death at the age of 35.
It is further alleged by the Complainant that no document of the treatment etc. was supplied to them by OP No.2 Nursing Home. Upon a complaint, Kotwali PS had started a criminal case.
The Complainant alleged medical negligence and deficiency in service in connection with the treatment of the patient and filed this case claiming compensation to the tune of Rs. 15 lakh on account of loss of life of the deceased, Rs.10,000/- for cost of litigation and Rs.1 lakh for compensation towards mental pain, agony and harassment.
All the five Ops contested the case by filing separate written w/v, evidence on affidavit and written argument. The OP No.1 and 2 in their w/v denied the allegations of negligence etc. made against them. The OP No.3 claimed that the patient was admitted in their Nursing Home in a very morbid condition and denied any negligence on their part. The OP No.4 (Insurance Company), who was added on the prayer of OP No.3 Nursing Home in their w/v denied having issued any Professional Indemnity Policy in favour of OP No.3 Nursing Home, rather, it is contended by them that such Indemnity Policy was issued in favour of Dr. P.K. Saha Hospital & Research Centre, Bairagi Dighi Bye Lane, P.O & Dist. Cooch Behar, which is not a party in this case. The OP No.5 in their w/v admitted having issued Insurance Policy for Professional Indemnity for Clinical Establishments for the period from 11.08.13 to 10.08.14 in favour of OP No.2 but according to them, if any negligence is proved against OP No.2, in that event, they would comply with the terms of Policy. So, they claimed that they have been made a party in this case for harassment only.
As already pointed out, all the parties filed their evidence on affidavit and also written argument. Having gone through the pleadings of the parties, the following points are needed to be determined:
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?
- Is there any deficiency in service on the part of the Ops as alleged?
- Whether the Complainant is entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point No.1 and 2.
On going through the written complaint, written versions, evidence and documents as furnished by the parties, we find that the Complainant is a “consumer” in accordance with the definition of the term as per Consumer Protection Act, 1986.
The petitioner is a resident of Cooch Behar and the Offices/establishments of the OPs are also located within the jurisdiction of this Forum. Therefore, we find that the cause of action arose within the territorial jurisdiction of this Forum and the amount claimed is also within the pecuniary limit of this Forum. Thus, these points are disposed of in favour of the Complainant.
Point No.3 and 4.
On behalf of the Complainant, during argument, it was submitted that no pre-operative tests were conducted by the Doctor/OP No.1, likewise after the operation was done, no measure was taken to cure the patient. Much emphasis was given on the alleged lack of pre-operative and post-operative measures on the part of OP No.1 and 2 and the said inaction on their part tantamounts to medical negligence in the eye of law.
Secondly, it was argued that OP No.1 apparently in order to avoid his liability, on his own, had shifted the patient to OP No.3 Shila Nursing Home without consulting and/or informing the patient party.
Thirdly, it was argued that despite repeated requests, the OP No.2 did not deliver the medical papers of the deceased.
Fourthly, after the patient was shifted to OP No.3 Nursing Home, they also did not take proper care to save the patient.
Fifthly, the admission of the patient in a Nursing Home without having ICU facility for the purpose of doing operation by OP No.1 amounts to medical negligence. In support of this contention, emphasis was given on the decision of the Supreme Court in Civil Appeal No.(S) 4761 of 2009 Bijoy Sinha Roy (D) By LR- vs- Biswanath Das & Others with C.A Nos. 4762-4763 of 2009. The said decision was made in Civil Appeal in a case of medical negligence.
So, the death of the patient as alleged by the Complainant was caused by sheer negligence on the part of OP No.1, 2 and 3 and they should be held liable in this case to pay compensation as prayed for.
Several other decisions were also cited on behalf of the Complainant. The decisions cited include 2019 (3) CPR 550 (NC), 2017 (2) CPR 70 (NC), 2015 (2) CPR 242 (NC), etc. Our attention was also drawn to the West Bengal Medical Council Code of Medical Ethics regarding maintenance of medical records of the Doctors registered with West Bengal Medical Council.
On the other hand, on behalf of OP No.1 and 2 all the allegations of the Complainant were denied. According to them, all necessary measures, both pre-operative and post-operative tests were taken by OP No.1 and 2. Not only that, OP No.1/Doctor, who had conducted the operation upon the patient had taken initiative to save the life of the patient and also applied his knowledge and skill in doing so but due to unexplained shock of the patient, she could not be saved.
It was argued that the claim that the medical papers of the deceased were not supplied is also an absolute lie. It was further alleged that the Complainant approached this Forum not with clean hands and several documents were also withheld by them which were not produced in order to cover up the weaknesses of his case. On behalf of OP No.1 and 2, several decisions were cited – 1994 AIR 853, 2016 (2) CPR 355 (NC), 2016 (2) CPR 359 (NC) etc. That apart, Medical Literature of Gallstone from Wikipedia was produced.
We have carefully gone through the materials on record and the documents submitted by both the parties. We have also gone through the decisions referred to by the parties in connection with this case.
Among the documents submitted on behalf of the Complainant are - USG Report of deceased Rupa Sha at MJN Hospital (Annexure”A”), one certificate issued by OP No.2 about the admission of the said patient at the said Nursing Home on 07.08.14 at 9.36 AM under Dr. Saumyajit Sinha (Annexure-“B “), One Prescription of Dr. Saumyajit Sinha (Annexure-“C “) , one Cross Matching Report issued by Cooch Behar Municipality Blood Bank for the said patient ( Annexure-“D “) and one Death Certificate of Rupa Sha issued by Cooch Behar Municipality ( Annexure-“E “).
The documents produced on behalf of OP No.1 are – (i) prescription sheet ( Annexure-“1 “) (ii) Check-up Report of Rupa Sha at MJN Hospital ( Annexure-“2 “) (iii) Blood Report of Shila Diagnostic Centre ( Annexure-“3 “ and “4 ) (iv) Blood Biochemistry & Serology ( Annexure-“5 “) (v) Pathological Report of Blood ( Annexure-“6 “) (vi) Cross Matching Report ( Annexure-“7 “) (vii) USG Report of MJN Hospital ( Annexure-“8 “) (viii) ECG Report ( Annexure-“9, 9/1 “) ix) Referral advice of Gall Bladder for Histopathology ( Annexure-“10 “).
The OP No.2 i.e. Joylakshmi Nursing Home produced the following documents – (i) Admission Sheet ( Annexure-“1 “), (ii) Treatment Sheet of Rupa Sha ( Annexure-“2,2/1, 3,4 and 5 “), (iii) Receipt of documents by Joy Kishore Sha ( Annexure-“6 “).
Subsequently, during hearing, PM Report of the patient Rupa Sha was called for and a copy of the same was produced by the concerned authority. But it does not reveal any cause of death and the opinion kept pending till receipt of chemical analysis report on viscera etc.
Admittedly, the patient was admitted to OP No.2 Nursing Home on 07.08.2014 and operation was done there on that date. Admittedly, the patient was shifted to OP No.3 i.e. Shila Nursing Home on 08.08.2014 where she died on that date at about 04.30 PM as claimed by the Complainant.
From the medical papers produced on behalf of OP No.1, it is found that the patient Rupa Sha was advised by OP No.1 on 04.08.14 for BTCT, HB etc. The USG of upper abdomen of the patient was done at MJN Hospital on 14.07.14 and the impression was Chronic Calculus Cholelitheasis. The Hemoglobin and other blood tests were also done on 04.08.14 at Shila Nursing Home. Annexure 5 and 6 reveal other tests i.e. Creatinine, Urea etc. which were done at MJN Hospital on 19.07.14 and all these tests are found to have been done before the operation was conducted on 07.08.14 by OP No.1.
Be it noted here that barring only the USG report, no other test reports including blood test etc. were produced by the Complainant for reasons best known to him. Regarding these reports which were obtained before actual operation, were also not disputed on behalf of the Complainant. From the papers relating to Gallstone from Wikipedia produced on behalf of OP No.1, it is found that the Gallstone is diagnosed on symptoms, which is confirmed by Ultrasound and complications may be detected on blood test. In this case, both the tests were done before the actual operation was made.
It is admitted by the Complainant that on 07.08.14 after operation was done by OP No.1, the Gall Bladder was handed over to them for Histopathological test. However, it is alleged that the patient started feeling acute pain and her condition was deteriorating but the attending nurse of OP No.2 Nursing Home, on being informed, did not pay any heed to the request to call the Doctor/OP No.1. It is alleged that at about 4.30 AM on 08.08.14, OP No.1 came to visit the patient and advised for 2 bottles of blood which was complied with.
The treatment sheet of the said patient as produced by OP No.2 (Annexure-2) reveals that OP No.1 came to the said Nursing Home and found the patient at about 3.30 PM in unexplained shock and administered Oxygen inhalation, Dopamine Infusion, Haemaxcyl Infusion, Steroid, respiratory support.
The said Doctor OP No.1 also called Dr. S.K. Mitra and Surgeon Dr. Sukdeb Chandra Roy for assistance and opinion but none of them could detect the exact cause. They also found that there was absolutely no bleeding from the patient’s drain area. Blood was also transfused. Blood Pressure was found falling.
In such circumstances, OP No.1 decided to shift the patient to Shila Nursing Home having ICU facility and OP No.1 himself on his own took initiative and arranged and ultimately got the said patient admitted to the said Nursing Home, where the patient expired at about 4.30 PM as claimed by the Complainant.
The aforesaid post-operative measures including treatment by OP No.1 were not disputed on behalf of the Complainant as not being in accordance with the usual medical practice/procedure. No allegation is also there that the operation was done without controlling the blood pressure and hemoglobin etc. So, the allegation of the Complainant that no pre-operative and post-operative measures were taken by OP No.1 and 2 cannot be accepted.
Another thing that needs to be dealt with now, is the argument of Complainant about negligence of OP No.1 arising out of the admission of the patient to a Nursing Home i.e. OP No.2 which have no ICU facility. The Complainant in order to buttress his claim cited the decision of the Hon’ble Apex Court in Civil Appeal No.(S) 4761 of 2009 – Bijoy Sinha Roy –vs- Biswanath Das & Others as pointed out earlier.
It appears that in the said case, absence of Intensive Therapy Unit in the Nursing Home, where the operation was conducted, was taken though it was assured that best medical facilities would be provided. The patient had also been suffering for a considerable period. That plea about absence of ICU facility was taken in their pleading but that claim was not seriously contested. The Hon’ble National Commission and the Hon’ble State Commission did not examine that plea. Considering the long pendency of the case for about 23 years, the Hon’ble Supreme Court disposed of that case by directing the OP to pay compensation.
But, here in this case, we find that this plea of absence of ICU facility in OP No.2 was agitated during argument. In the pleading itself, no such allegation was made by the Complainant and as this allegation was made for the first time in argument, OP No.1 did not have any opportunity to deal with this in his written version and/or evidence.
From the materials on record, nowhere, we find that OP No.1 had insisted the Complainant to get his wife admitted to OP No.2 Nursing Home for operation. However, the fact remains that the operation was done by OP No.1 at OP No.2 Nursing Home where ICU facility was not available. But in our view, only getting the patient admitted to a Nursing Home having no ICU facility itself does not amount to negligence on the part of the Doctor. It all depends upon several factors viz. type of disease, gravity involved therein, cost factor, condition of the patient and above all amount of risk involved in the operation and all other related issues.
Here in the present case, it transpires that on consideration of the condition of the patient and other related factors, actually it could not be anticipated by OP No.1 that something serious complication might arise during post-operative stage. Inspite of that having found the patient in unexplained shock, OP No.1 is found to have given utmost effort by giving necessary treatment and also by way of consulting other Doctors and ultimately, shifted the patient to another Nursing Home having ICU facility. In this context, there is absolutely no allegation against OP No.1 that at that stage what ought to have been done, actually had not been done by him to save the life of the patient.
The claim of the Complainant that the patient was shifted to Shilla Nursing Home i.e. OP No.3 from OP No.2 Nursing Home without informing them is not at all believable assuming the situation prevailing over there at OP No.2 Nursing Home at the relevant time.
The decision for shifting the patient was taken by Doctor, OP No.1 to OP No.3 i.e. Shilla Nursing Home which has ICU facility and that decision was taken when the measures which were already taken for the patient were not working. So, at that time, definitely the patient party had been present there at the OP No.2 Nursing Home and it was not possible to shift the patient surreptitiously to another Nursing Home. More so, the Doctor i.e. OP No.1 did not have anything to gain or achieve by shifting the patient to another Nursing Home in a clandestine manner keeping the patient party absolutely in dark. It is rather out of his utmost intent and effort to save the life of the patient he had taken the decision to shift her to another Nursing Home.
It is also to be pointed out that the Complainant did not take any initiative to produce any document relating to the treatment of the patient at OP No.3 Nursing Home, where the patient was shifted and later expired. Curiously, it is found that in the written argument, Complainant tried to fasten OP No.3 as well with the liability of negligence but no such allegations were made against this OP in the petition of complaint for reasons best known to the Complainant. The OP No.3 was added as a party on the prayer of OP No.2 Nursing Home. So, from this, it is clear that the Complainant did not have any allegation against OP No.3.
The claim that OP No.2 did not deliver the medical papers of the deceased is also not true. It is found from Annexure-6, which is the receipt filed on behalf of OP No.2, bearing the signature of the Complainant that the relevant papers were supplied to him on 11.08.2014.
In this connection, we think, it would be convenient to point out about what does it mean by the word ‘negligence’. It has been observed by Hon’ble Apex Court that “ Negligence is breach of duty caused by omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do. Negligence in the context of medical profession calls for a treatment with a difference. Error of judgment or an accident is not proof of negligence. So long as doctor follows a practice acceptable to the medical profession of the day, he cannot be held liable for negligence merely because a better alternative was available.”
It has been held in Achutrao Haribhau Khodwa & Others-vs-State of Maharashtra & Others that “ In the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
It is to be noted here that the complaint of this case was lodged on 09.02.2015. So, it is quite clear that despite having the papers, already obtained, relating to the treatment of the patient, Complainant did not produce all the documents or the copies thereof either at the time of filing of complaint or at any stage later and since the very beginning, Complainant maintained the allegation that no pre-operative and post-operative tests/measures were taken by the Ops, OP No.1 in particular, which is found to be, in fact, not true in our discussions made herein before.
On consideration of the entire facts and circumstances of the present case and taking into account the solemn observations of the Hon’ble Apex Court, we hold that the allegations made by the Complainant have not been substantiated. It is quite unfortunate that the wife of the Complainant lost her life at the age of only 35 years and we could feel the agony of the Complainant but we are not in a position to pass any order for payment of compensation for the reasons mentioned herein above. Therefore, the instant case is liable to be dismissed.
Hence,
It is ordered,
That the instant case be and the same is dismissed on contest. No order as to 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, if any. The copy of the Final Order will also be available in the official Website: confonet.nic.in.
Dictated and corrected by me.
