DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _291_ OF ___2014_
DATE OF FILING : 3.7.2014 DATE OF PASSING JUDGEMENT:18.09.2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker
COMPLAINANT : 1. Sri Jagannath Ghosh, son of late Haradhan ghosh
- Sri Sandipan Ghosh ,son of Sri Jagannath Ghosh
Both of 130, Ramkrishna Road, P.O Chatra, P.S Srerampore, District- Hooghly.
-VERSUS -
O.P/O.Ps : 1. Dr. Sunandan Basu, Consultant Neuro & Spine Surgeon, M/s Medica Superspeciality Hospital Pvt. Limited ,127, Mukundapur, E.M Bypass, Kolkata – 99, P.S Purba Jadavpur.
2. M/s Medica Superspeciality Hospital Pvt. Limited ,127, Mukundapur, E.M Bypass, Kolkata – 99, P.S Purba Jadavpur.
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
This is an application under section 12 of the C.P Act 1986 filed by the husband and son of the deceased Dipti Ghosh on the ground that Dipti Ghosh was admitted in the O.Ps Nursing Home due to cerebral attack on 26.8.2013 where she expired on 3.9.2013 at 11-15 p.m due to the negligence on the part of the O.Ps.
The moot allegation of the complainants is that on 1.9.2013 the patient Dipti Ghosh unattended and no medicine and required treatment was administered upon serious condition of the patient inspite of several requests and efforts by the complainants and their relatives. It has claimed that if proper care /treatment was done by the doctor the O.P-1 and O.P-2 to the patient property, the said patient certainly would not die pathetically. So, all the O.ps are liable for unexpected/pathetic death due to their gross negligence ,improper treatment and care/un-attendance/non-performance of duties and laches. The Xerox photocopies of documents are enclosed herewith. Hence, this case claiming Rs.5 lacs towards compensation from the O.Ps due to pathetic death of Dipti Ghosh.
The O.P-1 Dr. Sunandan Basu contested the case by filing written version and has denied all the medical negligence leveled against them. He has challenged the jurisdiction of this bench on the ground that voluminous evidence has to be recorded and it is not possible for the Consumer Forum in a summary trial and has also stated that complainant does not disclose any cause of action against the O.Ps. Again he has claimed that direction be given to the complainant to approach before the Civil Court. It is the positive case of the O.P that Mrs. Dipti Ghosh was brought to the emergency hospital at around 12.53 hours on 26.8.2013 in a comatose stage with history of finding the patient in the bathroom in unconscious and in a groaning state and firstly RMO treated the patient and after taking blood sugar , ECG and urgent CT brain scan was done and anti hypertensive medication was started along with other medicines like antiepileptic, antiodema drugs. Stamlo(S) was started as well as treating doctor was of the opinion that patient was suffering from poorly controlled hypertension. It has claimed that SPO2 level of the patient was 100% and BP 150/100 respiratory rate 16/min and body temperature 98.3C and she was in coma with dense hemiplegia on the right side. The patient was also advised tests like ECG, Echo Cardiogram, CKR, and blood for pre cath profile etc. it has further claimed that patient was thereafter treated conservatively by the O.P along with MIND team and during the course of treatment it revealed that the patient was suffering from uncontrolled hypertension and diabetes. The CT Scan revealed large intracerebral hematoma in the left side of the brain and prognosis of the patient was very poor and the same was explained in detail to the relative of the patient . It has claimed that during the stay in the hospital possible treatment was provided which reflects in the bed head ticket and treatment paper. It is pertinent to mention that the relatives of the patient was not willing to provide ICCU facility or any surgical intervention of the patient or any ventilation facility to the patient due to factors not known to the O.Ps and specific instruction in this regard has been signed by the son of the complainant . It is also stated by the O.P that the prognosis of the patient was bad and inspite of trying to manage the patient conservatively the patient expired on 2.9.2013 for cardiovascular failure in a case of large intracerebral hematoma. It has claimed that the O.Ps have tried their best to provide the medical service to the patient but inspite of their best efforts the patient could not be saved. The allegations made in paragraph 1 to 7 are strongly denied along with paragraph 8 to 13. It has prayed that complaint petition is misconceived without any scientific base and no documentary or other proof of harassment and as such the complaint should be dismissed in lemini.
The O.P-2 Medica Superspeciality Hospital also contested the case by filing written version and has denied all the allegations leveled against it. It is the positive case of the O.P hospital that there is no act of negligence or deficiency in serviced by the O.P as alleged or at all. So, it is a false claim of the complainant and award exemplary cost against the complainant since no particulars have been given and the record disclosed herein will show that patient was fully attended to revive her. The O.P-2 prays for dismissal of the case.
Points for decision in this case is whether the O.P hospital and Doctors have any deficiency in serviced as claimed by the complainant or not.
Decision with reasons
At the outset it must be stated that nowadays it is a fashion of the Doctor’s Ld. Advocate to raise a point in the written version that the Forum cannot entertain the medical negligence case due to complicated question of facts and highly technical nature is involved and it should be adjudicated by the Civil Court.
But probably the Advocate of the doctor O.P-1 has not gathered up-to-date knowledge of the decision of the Hon’ble Apex Court , the Highest Court of India . We will not speak much in this regard. However, we hold that this bench has enough jurisdiction and/or ability to decide the case even in a summary trial since evidence, cross-examination all are taken on affidavit and if required mentioning power to examine any one on dock if the situation is so warranted.
Be that as it may this submission in the written version is nothing but lack of knowledge and up-to-date study of the latest judgment. It is pertinent to point out that before admitting the case the opinion of the medical expert on specialized field has also go-bye by the decision of the Hon’ble Apex Court. However, complainant can take expert opinion by filing application after admitting the case and Bench definitely seek for expert opinion from the Government medical Institution by sending the treatment sheet , complaint etc . as to whether three is negligence or not.
Here in the instant case the complainant did not seek any expert opinion to determine whether the treatment given by the treating doctor was justified or not.
We are aware that essential components of negligence are three ; duty, breach and resulting damage. It is also mentioned here that simple lack of care, error of judgment or an accident is not proof of negligence on the part of a medical professional so long as a doctor follows a practice acceptable to the medical professional of that date. He cannot be held liable for negligence merely because better alternative course or method of treatment was also available or simply because a most skilled doctor would not have chosen to follow or refer to that practice or procedure which has been followed.
It should be mentioned here further that standard to be applied for judging, whether the present chare has been negligence or not. Lastly to prosecute a medical professional for negligence in the Law it must be shown that the doctor did something or failed to do something which in the given circumstances no professional in his ordinary senses and prudence would have done or failed to do. Hazards taken by the Doctor should be of such a nature that the injury which resulted was most likely imminent.
It is our boundant duty and obligation to the Civil Society to ensure that medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
Admittedly Dipti Ghosh was admitted and treating doctor has given their best services which is derived from the bed head ticket day by day. But death is not in the hands of the doctor. What doctor can do they can give best treatment for recovery of the patient and doctors ( Except few) treated the patient with proper care so that their name and fame be spread out while he is working in the Super Specialty Hospital like Medica. We have perused several progress report and BHT and we find that from time to time treatment including medication and investigation were done. But condition was so poor which was explained from time to time to the patient party. But unfortunately it is mentioned here that knowing the critical condition of Dipti Ghosh on 2.9.2013 at 3.15 p.m the patient party expressed that he is not willing to proceed with further treatment and put his signature in the BHT. The Signature is of none but the son of Dipti Ghosh. We have compared the signature appearing the case record and find in naked eye that the signature is identical. So, doctor has explained his pros and cons and critical condition of the patient even then his son who is complainant-2 did not accept further treatment which was required at that stage and thereby on the next day unfortunately the patient Dipti Ghosh expired.
So, where is the negligence of the doctor? We do not find any negligence of the doctor O.p-1 and question of negligence and not giving service by the O.p-2 does not arise at all. Apart from that fit her was any negligence in the treatment then complainant can file an application for expert opinion. But that inevitable was not done by the complainant.
After considering the matter from the different angle there is no escape from the conclusion that the O.p doctor has not committed various acts of omission of treatment of deceased Dipti Ghosh at different stage which clearly amounts to deficiency in service on the part of the medical professional.
So, we are satisfied that the maintenance of medical report and treatment was highly satisfactory. In this circumstances, it is
Ordered
That the application under section 12 of the C.P Act, 1986 is outright dismissed against the doctor and the hospital but in the sorry state of affairs that the mother of the complainant no.2 and wife of the complainant -1 expired, for which we do not like to saddle them by imposing any cost.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the application under section 12 of the C.P Act, 1986 is outright dismissed against the doctor and the hospital but in the sorry state of affairs that the mother of the complainant no.2 and wife of the complainant -1 expired, for which we do not like to saddle them by imposing any cost.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
