Date of Filing: 14/03/2013 Date of Final Order: 15/05/2015
Smt. Bandana Das Gupta being wife of deceased Sandip Das Gupata has filed the instant case U/S 12 of Consumer Protection Act 1986 against the Opposite parties alleging deficiency and negligent act in providing medical service as to unfortunate death of her husband with a prayer for issuing direction upon the Opposite Parties to pay of Rs.9,98,020/- as cost of medical treatment, compensation, cost of litigation and reliefs on different heads as incorporated in the prayer portion of the complaint.
The factual matrix of the case as culled out from the record are that on 26.11.2012 at about 7.30 p.m. the husband of the Complainant became seriously ill and forthwith he was taken to Shila Nursing Home by a vehicle. At that time there was no R.M.O in the said Nursing Home and the staff of the said Nursing Home told that without written Permission/advice of the Doctor no treatment could be given to the party. The patient party requested to call the doctor but the Nursing Home authority told that the Doctor is now busy at his private chamber and he is not available up to 11:30 p.m. At that time the patient was suffering from breathing problem. Thereafter, the patient was brought to the chamber of the Dr. Subhas Ch. Saha, who after examination advised for admission of the patient in the Nursing Home and assured that he would go there immediately but did not prescribed any single medicine or any life saving drug till his arrival at the nursing home even after observing the critical situation of the patient. The Complainant paid Rs. 500/- to the Doctor as fees. After that the patient was again brought to the Shila Nursing Home and perusing the note of the doctor for admission the staff of the nursing home took the patient inside the Nursing Home and started administrative formalities. The condition of the patient gradually decreased but till then the doctor did not reach there as per his commitment. Seeing the worst condition of the patient the Complainant accompanied with her relatives made several requests to do something for save the life of the patient but nobody cared. The staff of the nursing home also did not provide oxygen even after seeing the breathing problem of the patient. The patient was kept unattended for long time in the stretcher and ultimately breathed his last in the said nursing home without taking minimum treatment.
Being informed by the nursing staff the O.P. No.1 came to the nursing home and seeing the patient he declared death of the patient and issued a death certificate which also reveals that doctor failed to find out the definite cause of death.
The complainant categorically alleged that neither any Doctor nor any nurse of the Nursing Home had ever provided minimum service to the patient in such a state of condition of the patient in spite of repeated requests. The main allegation of the Complainant is that due to gross negligence of the O.Ps the husband of the Complainant died and knowing fully well that the patient was very serious the O.P. No.1being the owner of the O.P. No.2 and also the R.M.O of the N.H acted in such negligent manner to give treatment or any lifesaving drug even administration of Oxygen/Ventilation to the patient, who begged for Oxygen and thus caused death of the said patient. There was deficiency in service and unfair trade practice by the O.Ps. Due to such willful and gross negligent act and/or unethical conduct of the O.Ps the husband of the complainant died for which the complainant and her family members have been suffering irreparable loss or injury both financially and mentally.
In such a situation, finding no other alternative, the complainant has filed the instant complaint before this Forum seeking redress and relief(s) as incorporated in the prayer portion of the Complaint.
In the present case the O.P. No.1 & 2 by filing Written Version have contested the case contending inter-alia that the complainant has no cause of action. They have denied the allegation that no treatment was given to the deceased by the O.P. No. 1 or any doctor of the nursing home also there is no deficiency in service on the part of the O.P. No. 2 as alleged by the Complainant. The O.Ps make denial against some paragraphs of the complaint only admitted Para No. 3. They stated that the O.P. No. 1 never received any amount as fees from the complainant, the Annexure “C” proves the same. The further contentions of the O.Ps are that the patient was brought to the Nursing home with a serious condition and died before starting any treatment. As and when the O.Ps got no scope for treatment or rendering service, no question arose of deficiency in service. The patient unfortunately breathed his last before giving any treatment by them. The condition of the patient was so serious that the death was inevitable but the Complainant with an ill motive has filed the present case alleging deficiency in providing medical service. It is true that the O.P. No. 1 issued Death Certificate but he did only from the humanitarian ground. The O.P. No. 1 has a great reputation in this district but the Complainant wanted to defame the O.Ps. Putting all this O.Ps prayed for dismissal of the case with cost.
In the instant case The United Insurance Company, Cooch Behar Branch is made party as O.P. No. 3 vide order No.5 dated 06.05.2013. The O.P. No. 3 after its appearance by filing Written Version contested the case contending inter-alia that the case is not maintainable either in fact as well as in law. This O.P. contented that this O.P. has no knowledge about the facts of the case as he is not involved in any way with the case of the Complainant. This O.P. added on a prayer of the O.P. No.1&2 as the said O.Ps covered their personal risk with this Insurance Company. It is admitted that the O.P. No. 1&2 took the Professional Indemnity Policy from the O.P. No. 3. It is pertinent to mention that a criminal case is pending against that O.Ps in connection with the alleged death of Sandip Das Gupta U/S 304 A I.P.C. for which this answering O.P. has no liability subject to the exclusions clause of policies. The O.Ps violated the terms and conditions of the policy and there by this O.P. also has no liability towards professional indemnity. There is no negligence or deficiency in service of this O.P. towards the Complainant for which this Complainant is not entitled to get any compensation from the end of this O.P and this complaint deserves to be dismissed against this O.P with cost.
Both Parties filed Evidence on affidavit along with huge documents.
In the light of the facts of the case, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986.
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency or negligence in providing medical service as alleged by the Complainant?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASON
We have perused the entire documents in the record and heard the argument of both parties in full.
Point No.1 & 3.
Both these points are taken up together for convenience of discussion as they are related to each other.
The case of the complainant, Bandana Das Gupta is that in on 26/11/2012 at about 7.30 p.m. her husband Sandip Das Gupta became seriously ill and brought to Shila Nursing Home, by her daughter, Priyanka and nephew Prosenjit for emergency management and treatment. But the nursing home staffs did not render any treatment to him on the plea that without permission of the O.P. No.1, Dr. Subhas Ch. Saha they could not render any treatment and did not call him stating that he was busy in his chamber. On the basis of advice of staffs of nursing home the patient was brought to the chamber of Dr. Saha, at Guriahati which was more than ½ k.m. away from there. Dr. Saha examined him and issued a prescription with advice to admit him to the O.P. No.2, Shila Nursing Home. Rs.500/- was paid as his fee. They rushed to the said nursing home immediately.
It is the further case of the complainant that there nursing home took her signature in a loose paper and a printed consent Memo and asked to deposit advance money but she expressed her inability and assured that she would pay all bills before taking discharge of the patient. In the mean time position of the patient was deteriorating and he was feeling breathing problem and seeking for oxygen. But he was left unattended on the stretcher. Ultimately, he had died there at about 8.30 p.m. Thereafter Dr. Saha came there and on examining the patient declared that he had expired and issue Death Certificate noting that probably he died due to Myocardial infarction at Shila Nursing Home.
It is the further case of the complainant that her husband had died due to gross negligent act of the O.Ps and inspite of knowledge that the condition of the patient was very serious they did not render any treatment or to give life saving drug or to administrate oxygen to him and thereby caused death of the patient.
On the other hand it is the case of the O.P. No.1 & 2 that admittedly said patient Sandip Das Gupta was brought to the chamber of Dr. Saha in a morbid condition. He examined the patient and found him to be critically ill and disclosed such condition to the patient party, who requested to him to treat the patient. Then Dr. Saha advised them to take the patient to the nursing home and he also followed them after few minutes.
It is the case of the O.P. No.1 & 2 that when Dr. Saha reached at nursing home, found that the patient was lying on a stretcher at the door steps of the nursing home and from long experience he could ascertain that the patient died even before reaching to the nursing home.
It is the further case of the O.P. No.1 & 2 that there cannot be any reason on the part of Dr. Saha to be neglect in rendering medical service to the husband of the complainant and in fact they got no opportunity to render any treatment and practically payment of Rs.500/- to him as fee is totally false.
The complainant adduced Evidence on Affidavit of Four witnesses, who accompanied the patient till death:
- Bandana Das Gupta, The Complainant, (PW1)
- Priyanka Das Gupta, The Daughter, (PW2)
- Prosenjit Das Gupta, The Nephew, (PW3)
- Amj ad Ali, Driver of the Vehicle. (PW4)
The Complainant filed the following Documents, which have been marked Exbt.
- Salary Certificate of Deceased Sandip Das Gupta. (Annexure-1),
- Prescription of O.P. No.1 Dated 26/11/2012. (Annexure-2),
- Death Certificate of Sandip Das Gupta Dated 26/11/2012 issued by O.P. No.1 (Annexure-3),
- Copy of Charge Sheet of police case,
- Internet information.
The O.P. No. 1 & 2 have adduced Evidence of the following persons: And there is much Contradiction/Deviation/Improvement between the Written Version and the Evidence of the O.Ps.
- Dr. Subhash Ch. Saha (The O.P. No.1), (OPW1),
- Subhash Dey (Employee of O.P. No.2), (OPW2),
- Raju Das (Employee of O.P. No.2), (OPW3),
The O.P. No.1 & 2 have filed Xerox Copies of the following Documents:
- Membership of Cardio logical Society of India,
- List of Patients attended on 26/11/12 by O.P. No.1 in his Chamber,
- Xerox Copy of Report of Dy C.M.O(H), Cooch Behar,
- Xerox Copy of Letter of Secretary I.M.A, Cooch Behar,
- Copy of FIR of police case,
- Internet information,
- Copy of professional medical indemnity policy of Dr. Saha and Shila Nursing Home and Rules regarding said policy.
The O.P. No.3, Insurance Company has filed evidence of Arabinda Sen, local Branch Manager and copy of professional indemnity (medical establishment) policy of Shila Nursing Home.
Let us consider evidence of the parties.
The complainant, Smt. Bandana Das Gupta (PW-1), Prasenjit Das Gupta (PW-3), nephew of the complainant and Priyanka Das Gupta (PW-2) daughter of the complainant in same voice stated that on 26/11/2012 at about 7.30 p.m. the patient Sandip Das Gupta became very seriously and he was brought to the Shila Nursing Home for treatment by them. But the nursing home staffs did not provide any treatment stating that without permission of Dr. Subhas Ch. Saha they could not do anything and even they did not call Dr. Saha and alleged that he was busy in his chamber. Lastly, as per advice of said staffs said patient was brought to chamber of Dr. Saha, situated at Guriahati and about ½ k.m. away from there.
They further stated that thereafter the patient Sandip Das Gupta was brought to the chamber of Dr. Saha. He was examined by Dr. Saha, who issued prescription and advised to admit him to his Shila Nursing Home. Rs.500/- was paid to Dr. Saha as his fee. Thereafter, the patient was taken Shila Nursing Home immediately.
They further stated that in nursing home on seeing admission advised/ prescription the patient was brought to inside of the nursing home and signatures of the complainant were taken in a loose paper and on patient consent Memo and she was asked to deposit advance money. The complainant expressed her inability and assured that she would pay money after bringing the same from home and promised to clear up all dues at the time of discharge of the patient. In the mean time the patient became very serious. He was facing breathing problem and feeling of oxygen inhalation. But the staffs of the nursing home did not take any measure for his treatment inspite of repeated request and he was left untreated on the stretcher. Dr. Saha assured them he would come shortly but did not came and lastly the patient had died and they were helpless spectators to see such death.
They further stated that being informed Dr. Saha came there after 15/20 minutes of the death of said patient Sandip Das Gupta and on seeing the body declared that he had already died and issued death certificate mentioning probable cause of death.
They further stated that death was caused due to willful and gross negligence and deficiency in service of the O.P. No.1 & 2.
PW-2, Priyanka stated that she lodged a complaint before Kotwali P.S against Dr. Saha and nursing home, which has been registered as Kotwali P.S Case No.19/13 dated 09/01/2013 U/S 304A IPC.
PW-4, Amjad Ali, is a motor driver, who carried the said patient, Sandip Das Gupta in his vehicle No.WB-64 E/2168 to Shila Nursing Home with his wife, daughter and nephew on 26/11/2012 at about 7.30 p.m.
He further stated that nursing home did not render any treatment and as per their advice the patient was brought to chamber of Dr. Saha at Guriahati Road, Cooch Behar by his vehicle by his wife, daughter and nephew. Dr. Saha examined him and advised for admission. In his presence wife of the patient paid of Rs.500/- to said doctor as fee, who assured that he would go to the nursing home immediately for treatment of the said patient. Thereafter he brought the patient to the Shila Nursing Home by his vehicle. On reaching there the staffs of the nursing home on seeing advice for admission lifted the patient on stretcher and took him inside the nursing home. He noticed that the patient was feeling breathing problem and he was seeking for oxygen inhalation. But nobody cared to render any treatment to him rather they were asking the patient party to make deposit of advance money. Wife of the patient assured to clear up all bills before discharge of her husband. They all requested them to take necessary measure for the patient but they left him there without any treatment and ultimately, he died due to non availability of medical assistance and due to in action and negligence of the nursing home staffs and doctor.
On the other hand OPW-1, Dr. Subhas Ch. Saha on behalf of the O.P. No.1 & 2 stated that the patient Sandip Das Gupta was brought to his chamber by patient party in a morbid condition. He examined him on priority basis and found him to be critically ill. He informed the patient party about condition of the patient. They requested him to treat the patient at Shila Nursing Home and he asked them to take the patient there immediately. He instructed the staffs of nursing home to ready with proper arrangement and within a few minutes he following the patient arrived there. On reaching there he noticed that the patient was brought down from the vehicle and lying on a stretcher holdings by his staffs at the door step of the nursing home and on examination found the patient already dead. He issued death certificate and from long experience on the subject it was clinically ascertained that probable cause was due to Myocardial infarction.
He further stated that he never received Rs.500/- or any amount from the patient party as fees and there cannot be any reason on his part to be negligent in rendering medical service to the patient and practically he got no opportunity to start or give any such of medical treatment to the patient.
The OPW-2, Subhas Dey and the OPW-3, Raju Das both employees of Shila Nursing Home, who allegedly used to carry the patient from vehicle to nursing home stated that on 26/11/2012 at about 8.20 P.M. receiving information from Dr. Saha to arrange for a stretcher for a serious patient, prepared and ready with stretcher to receive the patient. About 8.30 P.M. a vehicle came there with patient Sandip Das Gupta with patient party and they rushed to the vehicle for getting down him and noticed that the patient was in senseless condition.
They further stated that while they were taking to the patient then Dr. Saha came there and on examination declared that the patient expired.
They further stated that no incident happened on 26/11/2012 at about 7.30 P.M. in their nursing home with patient Sandip Das Gupta and he was never brought to said nursing home at the relevant time.
In the present case no cross-examination was made in respect of any witness. So, evidences are oath verses oath.
During argument the Ld. Agent/Adv. of the O.P. No.1 & 2submitted that in present case all the PW-1,2 & 3 are near relatives and interested witnesses. Certainly they are interested witness of the case but it is also fact that they are only probable witnesses of the case.
On the other hand The O.P. No.1, Dr. Saha is the one of the party to the case and OPW-2 & 3 are own staffs of his nursing home, having interest in the result of the case.
In the present case PW-4, Amzad Ali, a driver of the vehicle, by which the patient was taken to the chamber of Dr. Saha and his nursing home is the only independent witness of the case.
Evidently, the patient was accompanied with his wife and daughter and only male member his nephew. So, it was not improper that said driver tried to help them to bring the patient to the chamber and nursing home.
It appears that PW-4, Amzad Ali in his evidence on affidavit clearly stated that firstly he brought the patient to said nursing home on 26/11/2012, then chamber of Dr. Saha and again brought to said nursing home as per advice of Dr. Saha and inspite of their repeated request, nursing home staffs took no measure for treatment of the patient and left his unattended and lastly he died.
In his argument the Ld. Agent/Adv. of the O.P. No.1 & 2 submitted that no reliance can be placed upon evidence of PW4 and he just put his signature in English written evidence sheet and prepared evidence made by the complainant expressing same story as stated by other PWs.
But we find that PW-4, Amzad Ali submitted his said evidence after swearing affidavit before Notary Public and said evidence on affidavit was duly submitted before the Forum by obeying the procedure. So, we do not find any reason to discard evidence of said independent witness.
It is the case of the O.P. No.1 & 2 that before filing of the present case the complainant party lodged an FIR regarding self same incident before Kotwali P.S and in the present complaint before the Forum set up new, different and developed story regarding the incident.
In their Written Argument the O.P. No.1 & 2 pointed out 14 contradiction between FIR and the present complaint.
We have carefully gone through the contains of the present complaint and copy of FIR lodged by Priyanka Das Gupta on 09/01/2013 before Kotwali P.S and registered as Kotwali P.S Case No.19/13 dated 09/01/2013 u/s 304-A IPC.
It is settled position of law that FIR is neither substantive piece of evidence nor an encyclopedia of the prosecution case. In criminal trial FIR can only be used for corroborating or contradiction its maker when he appear in court as witness.
In the present case this complaint was filed by Bandana Das Gupta and FIR was lodged by Priyanka Das Gupta, two different persons and like criminal court in this case in summary trial this Forum cannot examine any such corroboration, omission or contradiction.
In comparison between the complaint and FIR the O.P. No.1 & 2 pointed out contradiction like R.M.O was found/not found, staff told without permission of Dr. Saha no treatment can be given/doctor told without permission of Dr. Saha no employee of Cooch Behar Municipality can be treated and omission like no R.M.O but a doctor found, no patient of Cooch Behar Municipality treated here, daughter of the complainant, Priyanka contacted Dr. Saha, Dr. Saha replied to the daughter of the complainant to appear before 11.00 to 11.30 in FIR and omission like prescription deposited in office of nursing home, signatures of the complainant, Bandana Das Gupta were taken in loose sheet and reverse side, advance claim and patient party assured to pay after bringing money and before release of the patient in complaint filed before the Forum.
We think said contradiction and omission are not very much crucial specially when main allegation of negligence by not attending the patient finds place in both complaint and FIR.
During argument the Ld. Agent/Adv. of the complainant has given much trace upon the enquiry report dated 21/03/2013 sent by Dr. J.N. Sarkar, Deputy Chief Medical Officer of health, Cooch Behar to the Chief Medical Officer of health, Cooch Behar, which reveals that Dr. Sarkar enquired the allegation against Dr. Saha that on 26/11/2012 patient, Sandip Das Gupta was brought by Bandana Das Gupta and others but Dr. Saha was not willing to examine the patient and advised to attend the patient in his nursing home at once and then after approx 10 minutes later he visited the patient in nursing home. The death certificate had issued without his full satisfaction.
In the said report it is also stated that Dr. Saha denied any negligence of timely care and treatment rather it was concocted and intentionally invented for harassing him. Staffs Palas Guchchait and Jaba Sarkar also stated that they have no knowledge about concern patient and incident and another staff Raju Das stated that nothing conversation was made with him and the patient party.
So, it is clear that without examining the complainant Bandana Das Gupta and her relatives, on the basis of purely negative statement of Dr. Saha and his staffs, said report was submitted by Dr. Sarkar without passing opinion regarding allegation of negligence.
We think it is very much difficult to rely upon said scripty report of Dr. Sarkar specially when in a case of medical negligence reported in 2010 CTJ 392 (CP). NCDRC, Hon’ble National Commission regarding obtaining expert report pleased to hold that in Indian conditions, it is very difficult to secure the presence of an expert doctor to make a statement against another doctor.
Evidently, a dispute arose regarding issuance of death certificate of deceased Sandip Das Gupta and Cooch Behar Municipal authority asked to Dr. Saha to issue another death certificate and Dr. Saha refused the same on the ground that since the death certificate was given by a competent authority, no other death certificate can be issued.
It appears from the letter dated 17/09/2013 issued by Hony Secretary, IMA, Cooch Behar Branch to the District Magistrate, Cooch Behar that IMA confirmed the act of Dr. Saha. We do not find any impotency of the said letter in respect of the present case.
Evidently, Priyanka Das Gupta, daughter of the complainant lodged Kotwali P.S Case No.19/13 dated 09/01/2013 u/s 304-A IPC against Dr. Saha and said case ended in charge sheet u/s 304-A IPC against Dr. Saha with Dr. Sudhir Ch. Pandit, R.M.O.
We further find that investigation officer in his report submitted that during investigation it is found that the R.M.O (Dr. S.C. Pandit) did not admit the patient at once when the patient was brought to Shila Nursing Home on the fateful evening of 26/11/2012 and instead sent the patient to Dr. Subhas Ch. Saha, Chamber at Guriahati Road, Cooch Behar at his residence for his check up by Dr. Saha, where he was seeing other patients. Inspite of calling him to his nursing home, Dr. Subhas Ch. Saha did not turned up and instead, he called upon the patient to his chamber and checked the patient and advised for his admission. As such, both the M.Os were found ignoring the medical ethics in this regard resulting into the death of the noted patient due to non-receipt of timely medication. The time frame of half an hour which led to moving of patient to nursing home and Dr. Saha’s chamber and again back to the nursing home resulting in not getting proper medication, when required by the patient caused death of noted patient in question Sandip Das Gupta.
So, it is clear that the Investigation Officer of the case found prima facie case against Dr. Saha and other and filed charge sheet u/s 304-A IPC, but trial of the case is yet to be completed.
It is the case of the complainant that in his prescription Dr. Saha has claimed that he is Cardiologist. But he is not qualified Cardiologist, which is nothing but deficiency in service. In support of the contention of the complainant, the Ld. Agent/Adv. of the complainant submitted a ruling reported in 2013 CJ 858 (NC), where Hon’ble National Commission pleased to hold in a case of heart surgery that O.Ps committed deficiency in service and medical negligence by not proper referral and treated as a Cardiologist right from bringing without having such facility.
During argument the Ld. Agent/Adv. submitted website sheet from targetstudy.com regarding how to become Cardiologist, which shows aspiring candidate must done 5½ years M.B.B.S degree followed by 3 years D.M (Cardiology) to become a Cardiologist.
Impugned prescription dated 26/11/2012 shows that Dr. Subhas Ch. Saha is M.D. (Cal) M.R.C.P. (London) F.C.C.P. (Ind) F.I.C.A. (USA) and F.R.C.P. (Eden).
The O.P. No.1 & 2 submitted a sheet from Wikipedia, the free encyclopedia (Internet), which shows that Physicians who specialized in the field of medicine are called Cardiologist. Physicians who specialized in Cardiac surgery are called Cardiac Surgeons.
Cardiology is a speciality of internal medicine. To be Cardiologist in the United States, a three years residency internal medicine is followed by a three year residency in Cardiology.
From website citation filed by the O.P. No.1 & 2 it appears that Dr. Saha is life member of Cardiological Society of India and Cardiological Society of West Bengal.
Considering over all matter into consideration we think in the present case whether Dr. Saha is Cardiologist or not is not material, when evidently treatment of the deceased had not been started by Dr. Saha and this is not a case of wrong treatment and Dr. Saha being an experience physician having many higher qualification of India and abroad can treat any patient, especially in case of emergency, even in absence any such specialization.
Let us consider about medical ethics and clinical establishment rules.
According to West Bengal Medical Council Code of Medical Ethics.
Rule 13. Obligation to the sick :
Though a Physician is not bound to treat each and every one asking for his services except in emergencies for the sake of humanity and the noble traditions of the profession, he should not only be ever-ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he incurs in the discharge of his professional duties. In his ministration, he should never forget the health and the lives of those entrusted to his care depend on his skill and attention.
According to Rule 16.1. The patient must not be neglected :
A Physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the services. No registered medical practitioner shall willfully commit an act of negligence that may deprive his patient or patients from necessary medical care.
In view of West Bengal Clinical Establishment (Registration and Regulation) Act, 2010 S-7(3)(k) - that no person shall be denied, under any circumstances, including inability to pay the requisite fee or charges, such emergency life-saving medical treatment and critical care by the clinical establishment as may be prescribed.
In view of West Bengal Clinical Establishment Rules 2003.
Rule 11(Xii) proper arrangements for attending the patients and prompt answering to their calls must be made available round the clock.
According to Rule 22(V) - All emergency patients attending a clinical establishment, wherever registered medical practitioner/s are engaged, must be attended primarily without considering the financial capability of the patient to save the life, and then, may be referred with suitable medical report about the ailments, as early as possible to the nearest Government hospital if necessary. It is also the responsibility of the patient or his party to pay all the dues before being released from the clinical establishment.
During the argument the Ld. Agent/Adv. of the O.P. No.1 & 2 submitted that the position of the patient Sandip Das Gupta was very critical and without having proper examination in such a critical condition of the patient no drug can be prescribed by any professional Doctor, where the question of a life of a person, proper drugs should have to be prescribed. Any drug prescribed by an act of guessing/conjecture, may harmfully affect to the patient in a dangerous consequences, without having examination to measure various physical condition
In this context he relied upon the judgement passed by Hon’ble Apex Court in Civil Appeal No.3541 of 2002, where Hon’ble Apex Court pleased to hold that "No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided. A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary”.
But in the present case, patient, Sandip Das Gupta was firstly brought to the nursing home, then to chamber and again to the nursing home, but he was rendered no medical treatment at any place and thereby crutial period was wastaged and ultimately the patient had died without any treatment.
We think in such a situation this ruling cannot save the O.P. No.1 & 2 from consequence of non-rendering medical assistance to such a critical patient.
On the other hand the Ld. Agent/Adv. of the complainant submitted a ruling reported in 2003(II) CPJ 35 (NC), where a young boy, student of Engineering College met an accident caused by a bus to him, where he was in motorcycle and brought to nearby Rabi Hospital. There his treatment was started but not continued because of failure on the part of the persons, who brought him to the hospital to deposit Rs.15,000/-. This result in denial of treatment and consequential death of the young boy. Said consumer application was allowed by Hon’ble National Commission awarding Rs.10,00,000/- for mental agony, pain and agony with observation that when a man in such a miserable state hanging between life and death reaches the medical practitioner either in a hospital (run or managed by the State) public authority or a private person or a medical professional doing only private practice he is always called upon to rush to help such an injured person and to do all that is within his power to save life and it is known that present day medical science believes in giving treatment till the last breath and for sometime thereafter by resuscitation. The treatment is not given to the patient only in those cases where patient is likely to survive. Treatment is given in all cases. Attempts are made to save the life even in terminal cases.
In another Calcutta Case reported in 2007(I) CPJ 61(NC), where a lady patient was a card holder of E.S.I. Hospital, went to the respondent Hospital at about 6.30 a.m. on 04/07/1993 with complaint of severe pain in her abdomen. She was not examined till 11.30 a.m. and at this hour she was diagnosed with having pain in abdomen which was acute. However, the hospital authority refused to admit her as there was no ‘bed’ available. At about 12.30 p.m. she was advised to seek medical assistance from any other E.S.I. Hospital. According to the complainant, he took his wife to E.S.I. Hospital at Grant Lane and Ganesh Chandra Avenue, Kolkata, where she met with the same fate and was not attended to and finally she was admitted in a private nursing home (Bliss Nursing Home), where she died on 05/07/1993.
The complaint case filed in this regard was allowed by the Hon’ble State Commission and on appeal Hon’ble National Commission confirmed said award by observing that instead of treating the deceased, as per OPD Ticket, complete apathy has been shown by the appellants by not only not treating her with any medicine jeopardizing her life and leaving the patient to fend for herself by merely recording that patient is suffering from acute pain in abdomen. The duty of care expected from a doctor is to attend on a patient, more so, in a case of ‘emergency’ i.e. in this case the deceased with acute pain at the earliest and not adopting a mechanical approach of referring or 'forwarding' the case or pushing out the patient to some other hospital in city like Kolkata and that too in the case of a lady patient, admittedly, having acute abdomen pain. There has been a complete failure on the part of the appellant to perform the 'duty of care' expected from a professional doctor as well as the hospital. We are in full agreement with several observations made about Plight of an ordinary human being in such hospitals, where a medical ethic is given a ‘good by’ at the cost of patient as happened in this case, of life of the patient. We are also in full agreement with the reasoning advanced by the State Commission based on material on record that this was case of deficiency in service as also medical negligence on the part of the appellants.
It is the case of the O.P. No.1 & 2 that the patient party did not pay any fees to the Dr. Saha and Dr. Saha never charged any fees from them. The complainant also failed to produce any cash memo or receipt regarding payment of any fees/money to the O.P. No.1 & 2. So, in absence of payment of any fees/money they cannot be treated as Consumer u/s 2(1)(d)(ii) of the C.P. Act, 1986.
In support of their contention the Ld. Agent/Adv. of the O.P. No.1 & 2 submitted a ruling reported in 2009 (I) WBLR (CPSC) 847 WB, where Hon’ble State Commission pleased to observe that as no fee was paid to the O.P/doctor by the complainant, there was no service in terms of S(I)(O) CP Act. Consequently the complainant was not a consumer u/s 2(1)(d)(ii) of the C.P. Act, 1986.
Though in the present case Dr. Saha (O.P.W1) and his staffs O.P.W2 Subhas Dey and O.P.W3 Raju das in their evidence claimed that at the relevant time no fees/money was paid by the patient party to Dr. Saha, but PW1, the complainant, Bandana Das Gupta, PW2, Prasenjit Das Gupta and PW3, Priyanka Das Gupta stated that Rs.500/- had been paid to Dr. Saha by them. Only independent witness of this case PW4, Amzad Ali also stated that in his presence a note of Rs.500/- was paid to Dr. Saha by the complainant.
The O.P. No.1 & 2 have filed a Xerox copy of page of alleged patient register with dated 26/11/2012, which contains names of Jyotsna Roy and 6 others but name of deceased Sandip Das Gupta does not find place there.
In view Rule 18 of WB Clinical Establishment Rules. A keeper of the clinical establishment shall keep the following register of the patient received accommodated or both at the clinical establishment as on outdoor or indoor patient namely :
- Register of admission and discharge/death of the patient.
- Register of expenditure incurred by the patient for treatment in clinical establishment.
- Records of treatment.
But the present page of alleged register is nothing but a page of ordinary diary without having any Seal and Signature. We think much reliance cannot be placed upon the said document.
We find in the impugned prescription dated 26/11/2012 just name of the deceased Sandip Das Gupta has been written and remaining portion of the same is illegible. Said prescription does not bear any note “Complementary” if he was at all treated at free of costs.
Considering over all matter into consideration and evidence on record, we have no other alternative but to hold that the complainant has been able to prove that Rs.500/- has been paid to Dr. Saha by the complainant and the patient party was consumer u/s 2(1)(d)(ii) of the C.P. Act, 1986 and we are also constrained to hold that the complainant has been able to prove her case that her husband had died due to willful and gross negligence act and deficiency in service on the part of the O.P. No.1 & 2. Thus both this points are decided in favour of the complainant.
Point No.2.
The complaint value of the instant case is Rs.9,98,020/- i.e. within Rs.20,00,000/- and all the O.Ps are residing within the territory of the Cooch Behar district. Therefore, certainly this Forum has pecuniary as well as territorial jurisdiction to try the instant case.
Point No.4.
We have already come to conclusion that the O.P. No.1 & 2 are liable for deficiency and medical negligence.
It is the case of the O.P. No.1 & 2 that incident in question was covered under insurance scheme of O.P. No.3, insurance company. So, the O.P. No.3 is liable to pay the compensation if any, awarded by the Forum.
On the other hand it is the case of the O.Ps that admittedly the O.P. No.3 has taken the professional immediately policy for doctor’s and medical practitioner and establishment. But they violated condition of clause 8.1 of professional indemnity of doctor (other) policy and condition of clause 10.1 of professional indemnity (medical establishment) policy.
On perusal of the condition of clause 8.1 of professional indemnity of doctor (other) policy and condition of clause 10.1 of professional indemnity (medical establishment) policy.
We find that there is clear provision that the insured shall give written notice to the company as soon as reasonable practicable of any claim made against insured and shall give all such additional information as company required. Every such claim write, summons or process and all documents relating to the event shall be forwarded to the company immediately they are received by the insured.
But in present case no such document is forth coming before the Forum that the O.P. No.1 & 2 has filed any such claim application immediate after the incident along with documents.
During the argument the Ld. Agent/Adv. of the O.P. No.3 drew by attention to the indemnity limits of professional indemnity (medical establishment) policy of Shila Nursing Home which runs thus – Any one year (AOY) Rs.10,00,000/-. Any accident (AOA) Rs.5,00,000/-. ADA/ADY ratio 1 : 2 (Indemnity limit per any one claim limited to maximum of 25% of the limit indemnity).
He further submitted that there is Criminal Case against the O.P. No.1 & 2 u/s 304 A IPC. So, the O.P. No.3 has got no any liability towards the professional indemnities of the O.P. No.1 & 2, but the said case is yet to be disposed off.
We find that the complainant has not claimed any deficiency in service on the part of the O.P. No.3.
More so, instarance matter is between the O.P. No.1 & 2 with the O.P. No.3 and we do not find any deficiency in service on the part of the O.P. No.3 and the case is liable to be dismissed against the O.P. No.3.
Let us consider how much compensation is to be awarded to the complainant.
We think it is very much difficult to access the actual compensation to be awarded to the complainant. The complainant assessed the compensation in this way –
As loss of salary income of deceased
from the month of December, 2012
to October, 2017 (up to the date of retirement)
@ Rs.18,540/- p.m. for 59 months……………………………………………….Rs.10,93,860/-
Less pension receivable @ Rs.4,260/- p.m. for 59 months…………....................Rs.2,51,340/-
Rs.8,42,520/-
Certainly, due to death of the husband of the complainant, only earning member of the family, the complainant has lost income from salary of the deceased husband and amount of Rs.8,42,520/- is not very much exorbitant. They are also entitled to get Rs.1,00,000/- for mental suffering of pain by wife and daughter of the deceased. But they do not get any such amount for funeral expenses.
Accordingly, the complainant is entitled to get totaling Rs.9,42,520/- as compensation. So, this point is also decided in favour of the complainant.
Thus the case succeeds.
ORDER
Hence, it is ordered that,
The DF Case No.19/2013 be and the same is allowed on contest with costs of Rs.10,000/- against the O.P. No.1 & 2 and dismissed on contest against the O.P. No.3.
The O.P. Nos.1 & 2 are further directed to pay as compensation of Rs.9,42,520/- to the complainant jointly and/or severally within 45 days from the date of this order failing of which the O.P. Nos.1 & 2 have to pay Rs. 100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let plain copy of this Final Order be supplied, free of cost, to the concerned party/Ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
