In  the  Court  of  the

Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.

CDF/Unit-I/Case No.   293 / 2009.

1)                   V.S. Tiwari,

39C, Biren Roy Road, Kolkata-700008.                                       ---------- Complainant

---Versus---

1)                   Manager / C.E.O. representing,

The Calcutta Medical Research Institute,

7/2, Diamond Harbour Road, Kolkata-700027.

2)                   Dr. Pawan Agarwal attached to

            The Calcutta Medical Research Institute,

            7/2, Diamond Harbour Road, Kolkata-700027.                 ---------- Opposite Parties

Present :           Sri Sankar Nath Das, President.

                        Dr. A. B. Chakraborty, Member

Order No.   2 8    Dated  1 5 / 0 2 / 2 0 1 2 .

The petition of complaint u/s 12 of the C.P. Act, 1986 has been filed by complainant V. S. Tiwari against the o.ps. The Calcutta Medical Research Institute and Dr. Pawan Agarwal.  The case of the complainant in short is that the son of the complainant late Atul Tiwary aged about 20 years and a patient of muscular dystrophy was attacked with cough and cold and on the advice of the house physician he was admitted to CMRI Hospital, Kolkata on 16.1.09 at about 11.30 p.m. for better treatment under o.p. no.2. As the patient was on the wheel chair the hospital authority advised the complainant to have separate deluxe cabin so that the family members can have access to that cabin and accordingly he was allotted room no.725 on the 7^th floor. At about 11.45 p.m. nebulization  was applied to the patient and after administering the same the patient became completely normal and he was talking pleasantly. But in the mean time a junior doctor approached the complainant and told him that his son would have to be shifted to ICU bed no.10 as he was advised by a Chief Senior Dr. Pawan Agarwal, o.p. no.2 over telephone from his residence. The admission was necessary to I.C.U. for the patient’s muscular dystrophy disease. Although complainant has stated that the condition of the patient was quite normal and ok especially after nebulization. The attending physician pressed them for giving consent for shifting their son to the ICU and it has been alleged by the complainant that they were surprised to take note that o.p. no.1 never visited and examined the patient personally coming down to the hospital at all and had he been present the condition of the patient would have been better. Complainant and his wife kept awaiting in the visitors’ room uptill 5.25 when they were called over mobile phone no.919432498548 to the ICU at 7^th floor and at 5-40 ICU doctor reported the complainant that the heart of the patient suddenly stopped and cardio respiratory system averted which necessitate the patient to ventilation and at it complainant and his wife were highly shocked. Dr. Agarwal, o.p. no.2 for the first time at 5.30 a.m. on 17.1.09 visited the patient and complainant has stated in his complaint that the patient already died at 5.30 a.m. but the I.C.U. doctors did not think it necessary to inform complainant accordingly and continued to keep in ventilation for another day only for making and squeezing money. Complainant has further alleged that he was not asked even to arrange for another senior doctor to attend his son whilst Dr. Agarwal, o.p. no.2did not come to the hospital till next day morning upto 5-30 a.m. It has been categorically alleged and agitated by the complainant that for non examination by o.p. no.2, in person caused the death of his 20 years old ICSC topper bright son and this amounts to profuse negligency on the part of o.p. no.2 as well as o.p. no.1 being a service provider to a consumer / complainant. To make it clear patient was admitted on 16.1.09 at about 11-30 P.M. and as per o.p’s. case the heart of the patient stopped in the morning of 17.1.09 at about 5-00 p.m. and the patient was kept in ventilation uptil the morning of 18.1.09 when the patient was declared dead by the Doctors and the reason is best known to o.ps. Hence the instant case.

                  O.ps. had entered their appearance in this case by filing w/v. In his w/v the o.p. no.1 avered that Dr. Pawan Agarwal is not an employee of o.p. no.1 hospital but he is a consultant physician.

                  In the w/v the o.p. no.2 contended that the patient was admitted by Dr. P. Saha, Medical Officer on duty at 11.26 p.m. on 16.1.09. O.p. no.2 conceded that at about 11-45 p.m. on the same day Dr. J. Dutta Chowdhury informed him over phone that the patient has been admitted under o.p. no.2 and advice was given. He also opined for shifting of the patient to ICU for better monitoring. After shifting to ICU he advised over phone for addition al I.V. antibiotics and to conduct a Arberial Blood Gas analysis and the result of the analysis was also informed to him at 1-30 a.m. on 17.1.09. By 3-00 a.m. at 4-30 a.m. he was informed about the decoratine  condition. But at 5-00 a.m. the patient suffered cardiac arrest within half an hour he rushed to the hospital and attended the patient.

                  Thereafter he examined the patient at 9-30 a.m. on the same day. At 7-15 p.m. on 17.1.09 the o.ps. found that the patient was not responding to the treatment. O.p. no.2 contended that had he been personally present at the time of admission or therafter looking at the clinical condition he would have administered the same treatment.

            The Medical Board of P.G. observed “The BHT of CMRI is not complete in all respect. The names of doctors who treated Shri Atul Tiwari in the cabin and subsequently in the ICU is not clear. Their designations are also unknown. The exact time of visit by Dr. Pawan Agarwal is not obvious from the BHT neither are his directions for treatment”.

            It is an admitted fact that at the time of admission o.p. no.2 was informed that Shri Atul Tiwari has been admitted under him. It appears that o.p. no.1 charges Rs.1000/- for visit emergency, visit charge of Rs.600/- and Rs.600/- for 18.1.09.

            In para ‘C’ of w/v the patient party disclosed the history after giving oxygen and nebulisation and in para 8 it has been stated  that the complainant disclosed the history of the patient at the time of admission.

Decision with reasons:

            We have gone through the pleadings of the parties, evidence and documents in particular. It is an admitted position that the son of the complainant was admitted in o.p. no.1 hospital on 16.1.09 at 11.20 p.m. under o.p. no.2 as is evident from the BHT. It is also an admitted position that after nebulization the son of the complainant felt better. It is further an admitted position that the patient was admitted in ICU to combat any exigency. It is also admitted position that the patient was suffering from muscular dystrophy since the attainment of his age of six years which was disclosed by complainant at the time of admission. It is further seen from the record that the complainant and his wife kept awaiting in the visitors’ room and they were not allowed to stay in ICU till morning of 17.1.09 uptill 5-30 a.m. and at about 5-25 a.m. complainant received a telephonic call in his mobile no.9432498548 from ICU, 7^th floor to go to ICU immediately and accordingly complainant had been there in ICU at 5-30 a.m. and he was informed by the ICU doctor that the heart of his son had suddenly stopped and cardio respiratory system averted and the son of the complainant was kept on ventilation. The plea of the o.p. no.1 is that uptill 5.25 a.m. the health condition of the patient was normal and at about 5.25 a.m. the condition started deteriorating and his heard was suddenly stopped but from the evidence of o.p. no.2 it is seen that o.p. no.2 was consulted during whole night of 16/17. 1.09 various times and o.p. no.2 gave instructions time to time in reply to various telephonic calls of ICU doctors of o.p. no.1. These statements on the part of the o.ps. appear to be highly self-contradictory and the most striking point is that a patient is being admitted in a hospital under a professor and professor will not come down to the hospital to examine the patient and will continue administering treatment over phone, although the patient was lying in ICU in critical condition. The general procedure is being flowed every hospital / nursing home that in the event of admission of a patient under a specialist doctor a call book is being sent to the said specialist doctor to come down to hospital and/or nursing home to attend the patient by the such specialist doctor. But here in the instant case we find that patient was admitted to o.p. no.2 but he did not care to come down to hospital over night to examine the patient physically although it is his version that he was consulted over night by ICU doctors and still then o.p. no.2 never thought it just and proper ethically to come down to hospital to examine the patient for a moment. Although the patient underwent critical condition on and from 5-30 a.m. it appears from the bill that the o.p. no.1 charged for doctor’s emergency visit i.e. for o.p. no.2 as Rs.1000/- on 17.1.09 and on the same date on 18.1.09 they charged Rs.600/- for visiting. Observation of the Member of Enquiry Committee i.e. Medical Board in this regard of SSKM Hospital clearly indicates that “The BHT of CMRI is not complete in all respect. The names of doctors who treated Shri Atul Tiwari in the cabin and subsequently in the ICU is not clear. Their designations are also unknown. The exact time of visit by Dr. Pawan Agarwal is not obvious from the BHT neither are his directions for treatment”.

            This observation of the Medical Board of SSKM Hospital consequently has got presumptive value against the o.ps. that they intentionally withheld the data names of doctors and the directions of treatment given by o.p. no.2 and such withholding leaves room for doubt as to the genuineness of the contentions put forward by o.ps. and on the other hand, peeps through the sleeves something wrong done by them. That being the position and having the background as disclosed above the part played by o.p. no.2 is highly unethical and unbecoming a medical practitioner not to examine the patient personally and giving directions throughout the night over phone sought for ICU doctors. That apart had it been made known to the complain ant that o.p. no.2 would not be available over night complainant would have arranged and/or opted for another specialist doctor for the treatment of his son and/or to have shifted his son to any other hospital elsewhere. That scope too was not afforded by o.ps. to complainant to save his son. It is quite apparent from the record itself available that patient was critical over night, otherwise why ICU doctors made telephonic calls repeatedly for having directions from o.p. no.2 had the patient been in normal state of health condition. It was the duty of o.p. no.1 to arrange anoher specialist doctor of the similar strature like the strature o.p. no.2 for management of critical health condition of the son of the complainant which o.p. no.1 did not do. West Bengal Medical Council vide their letter no.2673-C/22-2009 dt.2.12.09 observed “That deceased Atul Tiwari, a patient of Congenital Muscular Dystrophy, who was suffering from cough and cold for the last two days was admitted under your care at CMRI on 16.1.2009 at about 11-26 PM. In spite of the deteriorating condition of the patient you never cared to see the patient till 5-30 AM on the next day the patient was in moribund condition and ultimately dies and that in relation thereto you have been found prima-facie guilty of infamous conduct in a professional respect”. O.ps. have cited the judgment of Martin D’souza  vs. Mohd. Isfaq reported in 2009 CPC 32(SC) and has urged for expert opinion but we are not inclined to comment anything on the mode of treatment administered on the patient. But we cannot miss to pin point one aspect that o.p. no.2 never visited to examine the patient personally from the time of admission i.e. 11-25 p.m. on 16.1.09 till 5-30 a.m. on 17.1.09, but gave telephonic direction over night to ICU doctors over phone on being asked by ICU doctors for the treatment of the son of he complainant. But we fail to understand what prompted o.p. no.2 not to come to the hospital to examine the patient who was definitely in a critical condition over night in the context of the background mentioned above to examine the patient and the absence of due care to a critical patient has been proved strictly as against o.p. no.2 as well as on the part of o.p. no.1 and both the o.ps. cannot shirk off their responsibility to such a patient for not taking proper care and this is a clear deficiency on the part of the o.ps. being a service provider to a consumer / complainant and complainant is entitled to relief as prayed for.

            Hence, ordered,

            That the petition of complaint is allowed on contest against the o.ps. with cost. O.p. no.1 is directed to refund a sum of Rs.30,936/- (Rupees thirty thousand nine hundred thirty six) only together with interest @ 9% p.a. from the date of making payment till the date of realization . O.p. nos.1 and 2 are jointly and/or severally directed to pay Rs.12,00,000/- (Rupees twelve lakhs) only to the complainant towards compensation  for harassment and mental agony and litigation cost of Rs.1000/- (Rupees one thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.

            Supply certified copy of this order to the parties.

   ____Sd____                                                    _______Sd-______

     MEMBER                                                           PRESIDENT