.

OMPLAINT CASE NO. DF6 OF2009

DATE OF FILING:13-01-2009.

DATE OF S/R:13-02-2009.

DATE OF FINAL ORDER: 25-03-2014.

1. Dr. Sunil Chakraborty,

son of late Kamal Kanta Chakraborty,

of 81/2, G.C. Ghosh Road,Lake Town,

P.O. Kolkata 48 and attached to Uluberia Sub-

Divisional Hospital, Uluberia,

District Howrah.

2. Uposom Nursing Home

represented by its owner Prosad Manna,

located at Uluberia Station Road

( opposite to Hospital Gate ),

P.S. Uluberia, District Howrah.----------------------------------------Opposite parties.

Member Shri P.K. Chatterjee.

Membermt. Jhumki Saha.

FI N AL O R DE R

1.            The instant case was filed by complainant U/S 12 of the C.P. Act, 1986 wherein the complainant has rayed for direction upon the o.ps. to ay Rs. 12,15,000/- in total as compensation for medical negligence, deficiency in service and for causing mental pain, agony for the untimely death of his wife Barsali.

2.            It is a very unfortunate case of the complainant, Sri Santi Denre, who lost his wife, Barsali Denre, at her very young age of 23 yearsat the time of their second child birth on 19-11-2007.

3.            Brief fact of the case is that Barshali Denre, since deceased, had been a regular patient of o.p. no. 1 since she became pregnant for the second time. Barshali had her first girl childwhen she became pregnant for the second time. She was taking all medicines and injections as per the advice of o.p. no. 1 and she used to visit o.p. no. 2 i.e., Uposom Nursing Home also known as uposom Nursing Home and Poly Clinic Or UNHPC for check up and treatment by o.p. no. 1. The expected date of delivery was given on 21-11-2007 by o.p. no. 1. She was totally dependent on o.p. no. 1 from the very beginning and allkinds of pathological tests were lso done through o.p. no. 2 as per the advice of o.p. no. 1. On 19-11-2007 she felt labour pain and without any delay she was brought to o.p. no. 1 chamber ( held with o.p. no. 2 ) at o.p. no. nursing Home. And after thorough examination, o.p. no. 1 advised the complainant to admit his wife immediately to this nursing home i.e., o.p. no. 2. And upongetting instructions from o.p. no. 1, complainant deposited Rs. 10,000/- for necessary operation to o.p. no. 2 and also put his signatureon some printed forms as per the direction of both the o.ps. Complainant also supplied all medicines and equipments as per the prescriptions of o.ps. thereafter he became again busy to collect more money from his relatives as it might be required for the operation. During such operation complainant was getting information about the condition of his wife and baby through the men and agents of o.p. no. 2, claiming to be the nurse and staff of o.p. no. 2, who were telling him that the condition of his wife and baby was O.K. and operation was going on smoothly. Meanwhile, one person, namely Prosad Manna claiming to be the owner of the nursing home came out of the operation theatre and told him that his wife would be shifted from O.T. to the respective place of the nursing home and left the place hurriedly. As the complainant became quite disappointed with his behavior, he rushed to o.p. no. 1 to know about the health condition of his wife and baby but o.p. no. 1 avoided to tell him details on different pleas and lastly finding no other alternative. O.p. no. 1 declared that his wife had expired. This unexpected news made him so shocked that he was going on requesting o.p. to check her condition once more.But o.ps. went away after giving him instruction to pay off the dues an collect all documents from the manager namely Tarun Kanti Samanta. Later on from death certificate he came to know that due to cardiac arrest his wife expired.Now, it is alleged by the complainant that due to severe negligence in providing service towards his wife by the o.ps. his wife had to die.There was no basic infrastructure in the said nursing home for giving necessary treatment to the patient like his wife. And only due to lack of amenities and severe negligence his wife had to die. Theirtwo children have been deprived of their mother love and affection. The new born son has been so unfortunate that hecould not even get mother first milk. O.p. no. 2 is not at all well equipped with the facilities to provide medical service. There is no trained nurse etc.Such untimely death of Barshali, caused severe mental pain. It became really impossible to bring up their two children.And complainant also lodged a complaint with Uluberia P.S. being Case no. 378 of 2007 dated 20-11-2007 U/S 336 & 334 (A) I.P.C., which is still pending before ld. A.C.J.M., Uluberia. As far as possible complainant has filed all attested xerox copies of the

necessary documents.ltimately on 13-01-2009, complainant filed this instant case alleging deficiency in providing service against o.ps. with a prayer to direct the o.ps. to pay an amount ofRs. 12,15,000/- in total as compensation for causing severe mental pain, agony, physical and financial loss not only to him but also to his two minor children.

4.            Notices were served upon o.ps. Both the o.ps. appeared and filed written version separately, evidence, questionnaire, replies swearing an affidavit and BNA.

5.Upon pleadings of both parties three oints arose for determination :

i)                    Whether the O.P. no. 1 is guilty of medical negligence in treating the wife of complainant ?

ii)                  Whether the O.P. no. 2 caused deficiency in service in providing proper medical aid ?

iii)                Whether the complainant is ntitled to the elief as prayed for ?

DECISIONWITH REASONS :

5.                  All he three oints aretaken up together for consideration.O.p. no. 2 has

categorically denied all the allegations leveled by the complainant regarding the lack of basic infrastructure, trained nurse, equipments etc. It is stated in the written version of o.p. no. 2, that Prosad Manna is not the owner of the nursing home but Ira Manna is the owner who has got a degree in Homoeopathy. As a poly Clinic, o.p. no. 1, had been a visiting doctor like other doctors and he took all fees from the complainant during ante natal period. O.p. no. 1 gave all instructions and treatment to Barshali since deceased nd o.p. no. 2 was no way connected with that part of the treatment. On the very day i.e., on 19-11-2007 after giving birth to a male baby at about 5.23 p.m., as o.p. no. 1 found that the condition of the said Barshali was satisfactory, she was shifted to the ward from O.T. And when at 6.30 p.m., the condition of Barshali started to be critical, Dr. ( Mrs. ) S.Roy, Anesthetist was attending her mmediately. On being informed by o.p. no. 2, o.p. no. 1 also arrived within very short period vide para 14 of written version. It means that immediately after operation i.e., after 5.23 p.m., o.p. no. 1 left the nursing home. And at 6.30 p.m., the condition ofBarshali startedgetting worsened. It is further stated that after the death of Barshli, o.p. no. 1 and Dr.Mrs. )Roy separately prepared their notes recording the sequence of the events as to the health condition of Barshali vide Annexure dated 19-11-2007 vide para 15 of the written version. On the very19-11-2007 complainant tookaway his new born male child after signing a bond. And on 20-11-2007, bady of the saidBarshali was taken away by Uluberia Police Station. So, according to o.p. no. 2, all possible emergency management and treatment were extended towards

Barshali but failed and she died at 7 p.m. As per o.p. no.1 certificate, death was due to cardiac arrest.

7.      On the next day i.e., on 20-11-2007, Uluberia Police Station took away the

body of Barshali fornecessary post mortem.That post mortem was done by Dr.T. S. Basu who gave his valuable opinion as eath was due to pulmonary embolism in a post operative case, following caesarean section( LUCS ) and ante-mortem in nature. But in the death certificate of Barshali, o.p. no. 1 wrote that death was due to cardiac arrest. It is a very common knowledge of all of us that whenhearts stop forever, people die. So, o.p. no. 1 gave a very common and easy reason of death. Actually, immediately after operation he left the nursing home leaving the patient in an uncared state. From the very beginning she was his patient. On 19-11-2007 he prescribed that the process of caesarean section delivery was required to be adopted which means he was quite sure that the maternal health ( Barshali ) would not be helpful for normal delivery. Barshali would not be able to withstand the exertion of normal delivery. And at the same time, as a doctor, he must be knowing that for caesarean section delivery some more amount of care was required to be taken definitely. But only from the post mortem report, he could come to know that the cause of the death was pulmonary embolism.And he described such death only as an ccidentas pulmonary embolism ( Amniotic Fluid ) is not preventable and causes high mortality rate irrespective of quality of infrastructure, primary, secondary or tertiary. Morevoer, according to him, O.T. of o.p. no. 2 is well equipped with O.T. table, Boyle apparatusandpulse oxymetre with adequate light facility, GNM nurses & RMO & Government Authorization.So, there is no reason as to why an operation should not be conducted at the O.T. of o.p. no. 2. Here we want to mention the PART I of the expert report given by C.M.O.H., Howrah, on 29-10-2009 which is self explanatory. All the points as mentioned by the enquiry committee from Sl. Nos. 1 to 6 are going gainst o.p. no. 1 above claim about the O.T. Room of o.p. no. 2. We need not explain any thing more. After C.S. pregnancy there remains every possibility of arising of an emergency like Amniotic Fluid embolism leading to the pulmonary respiratory problem for lack of oxygen flow in blood. ere, we like to mention that mniotic Fluid embolism causes amniotic fluid, fetal cells, hair or other debris entering the mother blood via the placental bed of the uterus and trigger an allergic reaction. This reaction then results in cardio respiratory ( heart & lung ) collapse and coagulopathy. This might eventually obstruct blood flow measure. Patient should have been given some kind ofanticoagulant medicines like Warfarin or Heparin Injection. So that embolus i.e,bold clotting could have been prevented. Actually, as per the expert report dated 29-10-2009 i.e,, Part II of the report ofC.M.O.H., Howrah, no life saving emergency medicine was in emergency stock of o.p. no. 2. Knowing it fully well, o.p. no. 1 advised the complainant to admit his wife, Barshali, to that nursing home i.e.,o.p. no. 2. It is also surprising why Prosad Manna was inside the .O.T.Because, after operation and delivery, Prosad Manna came out of O.T. and talked to the complainant which was expected to be done by the treating doctor, here o.p. no. 1. It is also true that after CS pregnancy, the patient is equired to be closely monitored or observed for a few hours. And only after being satisfied and sure about the

health of the patient, the patient should be shifted to normal ward. But herein this case, patient was shiftedto normal ward within 30 minutes.And immediately emergency arose and she was again taken to O.T.From the very beginning the patient was very much vulnerable to risks. But here he doctor as well as he owner of the nursing home n spite of being a doctor both failed to realize that. A c-section is a ajor abdominal surgery, so it riskier than a normal delivery. Mothers who have c-sections are more likely to have an infection, excessive bleeding, lood clots etc. So before the surgery, the patient should have been given antibiotic through IV ( Intravenous ). xpert report dated 15-03-2013 also mentioned that management of amniotic fluid embolism consist of supportive treatment, Hemodynamic support and positive pressure ventilation. So, merely by calling it an ccidentthe o.ps. cannot escape from their duties towards the said Barshali. With a better resuscitation techniques, ntensive care facilities and by early recognition, the entire emergency situation could have been managed very well. But o.p. no. 2 did not have those infrastructure facilities so that the patient could have been saved.

8.      Both the o.ps., especiallyo.p. no. 1 filed huge amount of xerox copies of medical

journals and reported judgments, we have gone through all those papers. But one very simple question we put it to ourselves that what prompted o.p. no. 1 to conduct a risky operation like c-section in an O.T. room which was not even having enough light as per the report of ( Part II ) enquiry committee formed under CMOH, Howrah. On the other hand, what prompted theowner of the o.p. no. 2 i.e., ( Dr. ( Mrs.) Ira Manna to allow o.p. no. 1 to conduct such operation in the O.T. room of her nursing home which was not even having enough number of trained GNM Nurse or life saving medicines in the emergency store of the nursing home ? We are sure, it is only monetary gain that was the only consideration for both of them. It is also sure that they have not even realized that hat a priceless loss is being aced by the complainant and his two minor children. At the time of death, their elder daughter was very small child in the year 2007. And the new born was not even gifted with his mother first milk. Without having a basic infrastructure o.p.. no. 2 allowed o.p. no. 1 to do the operation. It is really an unparallel level of deficiency as well as negligence which was shown by both the o.ps. First of all the basic infrastructure and amenities should have been there.Thereafter, the question omes whether the emergency problem of Barshali could have been solved or not. It is something that without any weapon, one has jumped into an war. He has to taste a defeat. No choice will remain. Here, in this case, these two motherless children would be brought up by others. Father, being complainant, has to go for earning money for the family. And everyone knows nobody except mother would take responsibility and liability for these children without any nterest The emotional loss of these three members can never be ascertained in terms of money. Specially it is very difficult to bring up a female child without a mother. Mostly, we have experienced that motherless children are brought in hostels, which require a lot of money to be spent. We have come to know that complainant has remarried another lady. This lady must have the esire to have her own

child. So, considering all aspects, we consider that both the o.ps. are equally guilty. And we are of the candid opinion that this is a fit case where the prayers of the complainant should be allowed.

All the three points are accordingly disposed of. /p>

Hence,

O R RE

That the C. C. Case No. 6 of 2009 ( HDF6 of 2009 )beand the same is allowed on contest with costsagainstthe O.Ps.

/p>

That the o.ps. are jointly and severally directed to payan amount of Rs. 10,00,000/- to the complainant within one month from the date of this order.

On receipt of this amount from o.ps., complainant is directed to keep the entire amount in the names of his children in fixed deposit schemes of either India Post or any nationalized bank at least for 10 years. The interest accrued thereon may be credited to his account periodically for meeting day to day expenses of these two children. And complainant is directed to submit the compliance report to thisForum immediately.

Further, the complainant do get an awardof Rs. 50,000/- for litigation costs to be borne by both the o.ps.

The o.ps. are directed to pay this amount of Rs. 50,000/- within one month from this order, i.d., it shall carry an interest @ 10% p.a./p>

The complainant is at liberty to put the decree into execution after expiry of the appeal period. /p>

/p>

Supply the copies of the order to the parties, as per rule.

DICTATED&CORRECTED

BY ME.

/b>

/b>

/p>