Consumer Complaint No.101 of 2010

Date of filing: 07.7.2010                                                                 Date of disposal: 23.5.2017

Complainant:    1.         Basudev Maitra, S/o. Sourindra Mohan Maitra, resident of Ashok Pally, near Unnayan Samiti Club, PO: Raniganj, Dist: Burdwan, PIN – 713 347, at present residing at 308, S. N. Banerjee Road, A-Zone, Durgapur – 4.

                        2.         Smt. Tanushree Maitra, W/o. Basudev Maitra, resident of Ashok Pally, near Unnayan Samiti Club, PO: Raniganj, Dist: Burdwan, PIN – 713 347, at present residing at 308, S. N. Banerjee Road, A-Zone, Durgapur – 4.

-V E R S U S-

Opposite Party:    1.     Dr. Supriya Maithy, attached with Asansol Sub-Divisional Hospital, having its office at Asansol Sub- Divisional Hospital Complex, S. B. Garai Road, Asansol – 1, District: Burdwan.

2.      Dr. Tapas Sen (Anaesthetist), having his resident at Upper Chalidanga, Asansol, District: Burdwan.

3.      Asansol Medical Centre Pvt. Ltd., service through the R.M.O. Asansol Medical Centre Pvt. Ltd., having address at Lower Chalidanga, Asansol, District: Burdwan.

Proforma Opposite Party:     4. Chief Medical Office of Health, Burdwan, having its office at Office of Chief Medical Officer of Health, Burdwan.

5. Asansol Sub-Divisional Hospital, service through the Medical Officer, having its office at Asansol Sub-Divisional Hospital Complex, S. B. Garai Road, Asansol-1, District: Burdwan.

Present:      Hon’ble Member:  Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:                           Ld. Advocate,  Sanyuk Banerjee.

Appeared for the Opposite Party No. 1, 2 & 3:  Ld. Advocate, Deb Krishna Sinha & Manikeswar Ghosh.

Appeared for the Opposite Party No. 4:            Ld. Advocate, Murari Mohan Kumar.

Appeared for the Opposite Party No. 5:     None.

J U D G E M E N T

This complaint is filed by the complainants being the father and mother of the deceased son against the Ops u/S. 12 of the Consumer Protection Act, 1986 alleging unfair trade practice, deficiency in service and medical negligence in providing proper treatment as per the standard medical science towards the patient, namely, Abhra Maitra, since deceased.  

The case of the complainants is that the son of the complainants met with an accident on 04.02.2007 and accordingly he was admitted at the proforma OP-4 where the initial treatment was started under the OP-1. The complainants received the news of the accident as well as about the hospitalization of their son in the early morning of 05.02.2007 and the complainants rushed to the proforma OP-5 and upon reaching there they found that the OP-1 attached with the proforma OP-4 is in charge of the son of the complainants. Accordingly the complainants contacted with the said doctor to know about the condition of the patient under his treatment. At that time it was told to the complainants by the OP-1 that for the purpose of proper treatment the patient is required to be operated immediately, otherwise there will increase the chance of infection thereby endangering the life of the patient. At that time the OP-1 also told the complainants that there is not existing sufficient infrastructure in the proforma OP-5 for conducting the operation which is required to be done to treat the patient properly. At that time the OP-1 also told the complainants that he can conduct the operation which is required to be done to treat the patient properly if the complainants shift the patient to OP-3 after giving personal risk bond to the proforma OP-5. Accordingly the patient was arranged to be shifted the OP-3 and was duly admitted therein under the treatment of the OP-1 on 05.02.2007. Although the OP-1 told the complainants when the patient was under the proforma OP-5 that for the purpose of proper treatment the patient is required to be operated immediately, otherwise there will increase the chance of infection thereby endangering the life of the patient, the OP-1 could only managed to arrange the operation of the patient at the OP-3 only on 08.02.2007. The patient was taken to the operation theatre at about 2.30 p.m. on the same date. The OP-2 came out of the operation theatre at about 7.30 p.m. and asked the complainants to see the patient and said ‘look the patient is conscious’ but actually the patient was not in any manner conscious at that time. When seeing the unconscious patient can be said to be a conscious one, the doctor did not pay any heed to the same and left the nursing home (OP-3). Thereafter the OP-1 also left the nursing home (OP-3) in a hurry. Seeing the unconsciousness of the patient and hurried leaving of the doctors from the nursing home (OP-3), the complainants got perplexed and thereafter just after 30 minutes or so the OP-1 returned back to the nursing home (OP-3) again and said to the complainants that their son is no more. Hearing the same the complainants could not believe the news. The Ops are deficient in service and unfair in trade practice and negligent in treatment of the deceased in the manner as aforesaid, moreover the news. The Ops are deficient in service and unfair in trade practice and negligent in treatment of the deceased because the Ops had not followed the code of ethics and regulations of Medical Council of India as well as the provisions of the other laws related with the medical science. The Ops are deficient in service and unfair in trade practice and negligent in treatment of the deceased as the Ops were not careful and cautious in the matter of treatment of the deceased as the Ops were not diligent in the matter of treatment of the deceased, as the Ops have never showed reasonable prudence in the matter of treatment of the deceased, as the Ops have done certain acts which were not required to be done in the matter of treatment of the deceased, as the Ops have not done certain acts which required to be done in the matter of treatment of the deceased, as the Ops have not done certain tests, which required to be done in the matter of treatment of the deceased.  The complainants believe that the OP-1 inspite of knowing fully well that there is not existing infrastructure in the OP-3 intentionally by provoking the complainants shifted the deceased to the OP-3 for making more monetary profit by way of exploiting the compelling situation of the complainants at that time. The complainants believe that the OP-1 inspite of knowing that there is existing sufficient infrastructure in the proforma OP-5 intentionally by provoking the complainants shifted the deceased to the OP-3 for making more monetary profit by way of exploiting the compelling situation of the complainants at that time. The complainants believe that the OP-1 inspite of knowing that there is not existing sufficient infrastructure in the OP-3, so far facility of ventilation and ICCU unit in the OP-3 is concerned, which may be required at any stage for treatment of the patient like the deceased OP-1 inspite of knowing the fact asked the complainants to admit the patient at the OP-3 intentionally for making more profit by way of exploiting the compelling situation of the complainants at that time. The complainants believe that the OP-3 inspite of knowing that there is not existing sufficient infrastructure in the OP-3, so far facility of ventilation and ICCU unit in the OP-3 is concerned, which may be required at any stage for treatment of the patient like the deceased OP- inspite of knowing the fact asked the complainants to admit the patient at the OP-3 intentionally for making more profit by way of exploiting the compelling situation of the complainants at that time. The OP-1 said to the complainants that the cause of death of the deceased was a cardio respiratory failure. It is true that without a cardio respiratory failure nobody can die. But at the relevant point of time the OP-1 failed to find out the cause of the death of the son of the complainants and ascertained the same to be ‘fat embolism’ which indicates that the OP-1 doctor was negligent in determining the cause of death of the deceased. The proforma OP-4 has to be impleaded in this case as a party as the proforma OP-4 failed to conduct the enquiry against the OP doctors in the manner in which the same was required to conducted by following the law of the land and the theory of reasonable prudence. The proforma OP-5 has to be impleaded in this case as a party as the deceased had been admitted first in point of time and as in this instant case it is a very important factor to determine whether there is existing sufficient infrastructure in the said hospital for conducting the operation which was required to be done to the deceased for giving him proper treatment and for the vicarious liability for the act of the OP-1 who inspite of knowing that there is existing sufficient infrastructure in the said hospital for conducting the operation which was required to be done to the deceased intentionally by provoking the complainants shifted the deceased to the OP-3 for making more monetary profit by way of exploiting the compelling situation of the complainants at that time. Although the OP-1 said to the complainants that for proper treatment the patient is required to be operated immediately, otherwise there will increase the chance of infection thereby endangering the life of the patient, without having any proper reason the OP-1, inspite of due admission of the patient at the OP-3 since 05.02.2007 could only managed to conduct the operation on 08.02.2007, that is after an unexplained delay of two days meantime. The complainants prayed Rs. 3,00,000=00 towards compensation for the act of deficiency in service and act of unfair trade practice and negligent act by the Ops and prayed Rs. 1,50,000=00 towards harassment, mental pain, agony and suffering and monetary loss during the tenure of treatment of the deceased and Rs. 10,000=00 towards the cost of this complaint.

Notices were issued upon all the Ops and OP-1, 2, 3 & 4 excepting OP-5 contested the case by filing written versions.

The OP-1 by filing written version denied all the allegations made by the complainants in their petition of complaint. The case of the OP-1 is that the son of the complainants was admitted at OP-5 on 05.02.2007 with an injury in shaft femur which caused in an accident. The patient was very bulky which was not in conformity in respect of his age. After admission this OP started treatment after examining all over his body. As the femur of the patient displaced from his position, it was not possible to give proper treatment after examination of the patient without surgeon. Accordingly, this OP informed about the same to his parents on 05.02.2007. Be it mentioned that after admission of the said patient, the OP-1 took care of the patient and gave first aid treatment at the night of admission of the patient.  This OP further submits that after observing the position of OP-5 and after hearing the requirement of surgery the patents of the patient forced this OP to get discharge of the patient from the OP-5 and make arrangement for proper treatment in a nursing home. The patient party discharged the patient on a risk bond and as the parents of the patient willfully requested this OP for treatment of the patient outside the OP-5, this OP advised them to admit the patient at OP-3 as there are C-Arm facility available there and accordingly the advice was accepted by the parents of the patient without any provocation. Accordingly, they got the patient admitted at OP-3 on 05.02.2007. This OP further submits that things did not come to such a position when the haemoglobin percentage of the patient turned out to be that of 8%. Thus, proper surgery treatment kept pending. There3after, two bottles of blood were transfused and there was decision to set up the shaft femur by operation on 08.02.2007 and according permission as also obtained from a physician whether the patient will be medically fit and after completion of all formalities and with the help of Dr. Tapas Sen, Anaesthetist (OP-2) and after applying anaesthesia with the help of C-Arm technique the fracture of shaft femur was fixed with interlocking nail on 08.02.2007 within 4 p.m. to 7 p.m. This OP also submits that about after completion of operation when the patient became conscious, he was shifted in the recovery room from the operation theatre. After his due consciousness and for undergoing the operation the patient was shouting for pain. Accordingly, this OP advised to apply anaelgesic. Thereafter, as the patient was in well condition this OP along with others left the nursing home. This OP further submits that at about 8.30 p.m. on 08.02.2007 this OP was intimated over phone that the condition of the patient was serious. Accordingly, then and there this OP rushed for nursing home and again shifted the patient in the operation theater and applied oxygen by putting mask and tried to ventilate him, but all the efforts went in vain and the patient died at about 9.30 p.m. for respiratory failure due to fat embolism. That the method adopted by this OP was for saving the life of the patient. So this OP can safely say that there was no deficiency in service on the part of this OP and there was no negligence on the part of this OP and the same reflect in the medical report issued by the Enquiry Committee on the basis of the complaint lodged by the patient party. This OP prays for dismissing the present complaint with compensatory cost and the present OP craves leave before this Forum for taking legal action against the complainants for damaging the reputation of this OP in the locality.

The OP-2 also denied all the allegations made by the complainants in their petition of complaint. The contention of the OP-2 is that he was requested by the OP-1 to attend the OP-3 for applying anaesthesia upon the patient who suffers from fracture injury of shaft femur. Accordingly, this OP on request of OP-1 and OP-3, attended the nursing home on 08.02.2007 and after observing the total physical condition of the patient applied spinal anaesthesia and automatically the patient became anaesthetized and thereafter the OP-1 started the operation. After completion of operation the patient gradually became recovered and when the patient became fully recovered from spinal anaesthesia and started feeling pain, then he was shifted in the recovery room with necessary post-operative direction. This OP further submits that this OP along with the patient from the time of anaesthesia till the time of full recovery rendered his service on due diligence observing upon the total situation and as the patient was in normal states of affair, this OP-2 left the nursing home with the consent of the OP-1. So, the matter of deficiency in service upon the patient by this OP, as alleged by the complainants, does not arise at all and there is no scope on the part of the complainants to raise such allegation against this OP. This OP further submits that in view of the facts stated above in the written version and the facts stated in the petition of complaint are all false and motivated one and the same is also malafide one. So the present proceeding brought against this OP is liable e to be dismissed with compensatory cost for damaging his reputation and also for impleading his in the present proceeding unnecessarily.

The version of the OP-3 is that this OP Institution is well established on the leave of the District Chief Medical Officer of Health, Burdwan. The office of the C.M.O.H. after thorough enquiry and after satisfying the matter of all the formalities in regard to establishment of the institution, permitted to establish the same to give service to the patient on temporary service subject to obtain such permission every year. This OP further states that the OP-3 institution have sufficient facilities for providing the same to patient of the locality or others and there is a good and fair atmosphere within the institution and the institution is being run in proper manner as provided by the law of this land. The OP-3 further submits that the son of the complainant admitted in the OP-3 on 05.02.2007 as per advice of the OP-1 and at the time of admission, the patient party showed good gesture as they satisfied by shifting the patient in OP-3 from the OP-5. So, the matter of provocation to the complainants regarding shifting of the patient there does not arise at all, nor there is any such machinery of the present OP-3 to provoke the patient party and there is no question of provocation for any monetary gain or anything else by way of exploitation of any compelling situation upon anybody or any patient party. No such situation, as alleged, has arisen or thing has arisen because of the fact of that the OP-3 is situated far away from the OP-5. So, the matter of provocation upon the complainants is a myth and the same is concocted and afterthought statement of the present complainants and that is made with a view to a malafide intention. The present complainants added this OP as a party to the proceeding due to some malafide intention and out of grudge. The OP-3 prays for dismissal of the present complaint with exemplary cost.

The case of the OP-4 is that this OP is not at all a necessary party in the present proceeding as C.M.O.H. of Burdwan has got any connection with the alleged private nursing home impleaded here as OP-3 or the doctors attached with. Under the West Bengal Health Service Directorate the OP-4 is a Sub-Divisional Hospital rendering service to the sufferers admitted as patient therein. There is no scope of rendering any advice to any patient party to shift any patient to any private nursing home of situation so occurs sometimes the deserving patients are sent to the other State Hospitals having greater facilities of treatment. On the face of allegations of the complainants, the complainants might have shifted their patient to the private nursing home as alleged but that has no concern with the Sub-Divisional Hospital at Asansol.  This OP in fact has neither role nor any obligation to conduct any enquiry at the instance of the complainants though at the request of the police authority this OP constituted a Board and have sent the report as sought for by the said Police Authority. It may be noted that the complainants lodged any complaint to this OP about any deficiency in serviced on the part of its subordinate officer. This OP specifically denied that none of its subordinate Medical Officers prescribed anywhere in the record for shifting the alleged patient of the complainants. This OP also submits that the complainants just to malign this OP and his other Medical Officers have field this complaint application for his unlawful gain on absolute baseless allegation of deficiency in service and unfair trade practice. This OP prays for rejecting the application with cost of harassment as there is no merit at all in the present application. 

At the very outset it is pertinent to mention that the complaint was filed along with a petition u/S. 24A of the C.P. Act, 1986. As per settled law before allowing the said application praying for condonation of delay and admission of this complaint no notice was issued to the Ops to give them chance to contest the said application either oral or by filing written objection. The record reveals that without hearing from the otherside and without giving any notice to them, the complaint was admitted, but in this connection no specific order has been passed by this ld. Forum regarding condonation of delay. We have noticed that admittedly this complaint was filed by the complainants after expiry of the statutory period of limitation because the patient died in the year 2007 i.e. on 08.02.2007 and this complaint was filed in the year 2010 i.e. on 07.7.2010. It is stated by the complainants that for getting the treatment related papers this time was consumed by the complainants but in view of the C.P. Act, 1986 complaint should be filed within two years from the date of cause of action. In the instant complaint cause of action arose in the year 2007 i.e. on 08.02.2007 and this complaint filed in the year 2010 i.e. on 07.7.2010. Inspite of this as the ld. Forum was pleased to admit the complaint after allowing the said petition; hence we cannot go beyond such order because this Forum has no authority to review its own order. Inspite of this it can be said that the said order being no.04, dated 21.7.2010 is nonest.

Decision with reasons:

            Heard the argument at length from the side of the complainants, as well as, from the OP-1 to 4. There are two-fold allegations made by the complainant. One is related to medical negligence on the part of the OP-1-Doctor in treating the son of the complainants and the other is unfair trade practice adopted by the OP-1-Doctor. Perused the complaint, written versions filed by the OP-1to 4 along with the other documents and papers submitted by the complainant and the OP- 1 to 4 on affidavit as evidence.

            Be it mentioned here that in determining, as well as, to arrive at a conclusive adjudication, an expert Doctor from the Orthopaedic Department of M.S.V.P., Burdwan Medical College & Hospital was appointed for ascertainment of medical negligence regarding treatment of the deceased.  The expert Doctor eventually submitted his report as expert opinion in this regard. Further, the assertions of unfair trade practice alleged against the OP-1-Doctor who provoked the patient party to shift their patient to another private nursing home for proper treatment, an Enquiry Committee was held under the supervision of the OP-4 i.e. Chief Medical Office of Health, Burdwan. Questionnaires were put by the complainants to the OP-1 to 4 and to the aforesaid expert. Gone through the questionnaires and the respective replies by the Ops, expert and submissions by the OP-1-Doctor and OP-2- Anaesthetist before the enquiry committee. Perusing all the replies from the Ops and the report of the Enquiry Committee, we see that the patient was died due to cardiac respiratory failure due to fat embolism which has been admitted by the OP-1-Doctor himself quoting that the patient is bulky and may be weighted 70 kg. But there is no evidence of treatment and care by the OP-1-Doctor, during the operation of the deceased that any such measure has been taken by the OP-1-
Doctor to treat a bulky patient who may die due to fat embolism. Consulted the BHT also we are of the view that no measure has been taken to operate a bulky patient by the OP-1-Doctor during the operation.  Therefore, it is evident that the OP-1-Doctor has not taken the measures which should have been taken by him at the time of operation which indicates negligence on the part of the OP-1-Doctor. Furthermore, after operation both the treating Doctor i.e. the OP-1 and the OP-2- anaesthetist left the operation theatre sending the patient in recovery room. After calling on by the nursing home both of them arrived there and took some measures but all in vain. The complainants argued that during such a critical and serious operation both of them should have been present for at least some hours, but they did not do that.

            Regarding unfair trade practice on the part of the OP-1-Doctor for shifting the patient from OP-5-Hospital to OP-3-Nursing Home, it is evident from the Enquiry Committee report submitted by the OP-4-CMOH, Burdwan that OP-5-Hospital had the similar facility which is also in the OP-3-Nurisng Home for treating the  deceased patient i.e. OP-1-Doctor should have not provoked the complainants to shift their son in another Nursing Home-OP-3, which the complainants alleged that OP-1-Doctor had the intention of more monetary gain in treating the patient at OP-3-Nursing Home. It is also evident from the later treatment by the OP-1-Doctor when the patient was after operation in very serious condition from where it is seen that the patient was put into oxygen musk and made manual massage of the heart to regain the patient’s consciousness which indicates that the OP-3-Nursing Home has no facility of ICCU or ventilation which the patient needed badly at that time. That is, advice by the OP-1-Doctor to shift the patient from OP-5-Hopsital to OP-3-Nursing Home does not stand for any better treatment at OP-3-Nurisng Home. It shows clearly that there is some malafide intention to gain more monetary profit by provoking patient party to shift their patient at OP-3-Nursing Home. It is clearly unfair trade practice. Accordingly, the complainants win the case. Hence, it is

O r d e r e d

that the complaint is allowed on contest with cost against the OP-1, 2 & 3 and the complaint is dismissed on contest against the Proforma OP-4 and dismissed ex parte against the Proforma OP-5 with a direction to the OP-1,2 & 3 to pay either jointly or severally Rs. 2,00,000=00 to the complainants for mental agony, harassment and unfair trade practice within 45 days from the date of passing of this order, in default, the OP-1, 2 & 3 are liable to pay penal interest @9% per annum for the default period and the OP- 1, 2 & 3 are also directed to pay either jointly or severally Rs. 5,000=00 as litigation cost within 45 days from the date of passing of this order, in default, the complainants are at liberty to put the entire award in execution as per provisions of law.

            Let plain copies of this order be supplied to the parties free of cost as per provisions of law.

Dictated and corrected by me.                                                               

                       (Pankaj Kumar Sinha)

                          Member

                         DCDRF, Burdwan

                                                         (Silpi Majumder)                     (Pankaj Kumar Sinha)

                                                                Member                                         Member   

                                                       DCDRF, Burdwan                         DCDRF, Burdwan