West Bengal

Siliguri

104/S/2010

RANJIT SARKAR - Complainant(s)

Versus

MEDICA NORTH BENGAL CLINIC - Opp.Party(s)

21 Jul 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO. : 104/S/2010.              DATED : 21.07.2015.

                

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBERS              : SMT. PRATITI  BHATTACHARJEE &

                                                              SRI PABITRA MAJUMDAR.

 

COMPLAINANT                 : SRI PANNA SARKAR,

                                                              S/O Late Ranjit Sarkar,

                                                              Resident of Sarkar Bhawan,

  Debi Danga Bazar,

  P.O.- Champasari, P.S.- Pradhan Nagar,

  Dist.- Darjeeling. 

                                                           

 

O.Ps.                    1.         : M/S MEDICA NORTH BENGAL CLINIC,

                                                              situated at Pradhan Nagar,

                                                              P.O. & P.S.- Pradhan Nagar,

                                                              Dist.- Darjeeling.

 

2.         : DR. S. SEN,

 

3.         : DR. P.D. BHUTIA,

 

4.         : DR. T. N. SHARMA.

 

                                                              Sl. Nos.2, 3 & 4 are residents of

  C/O MEDICA NORTH BENGAL CLINIC,

  Pradhan Nagar, P.O. & P.S.- Pradhan Nagar,

                                                              Dist.- Darjeeling.                      

                                                                                                                                                                      

FOR THE COMPLAINANT         : Sri Nirmalendu Roy, Advocate.

FOR THE OP No.1                          : Sri Biswadeep Roy, Advocate.

FOR THE OP Nos.2, 3 & 4             : Sri Bijoy Saha, Advocate.

 

J U D G E M E N T

 

Mr. Biswanth De, Hon’ble President

 

This complaint was instituted by Sri Ranjit Sarkar on the allegation that death of his wife occurred due to the negligent treatment of the OP Nos.1, 2, 3 & 4. 

The case is that Basanti Sarkar was admitted under OP No.1.  She was suffering from fever, loss of appetite, pain in abdomen and burning

 

Contd…….P/2

-:2:-

 

sensation.  She was undertaken different medical tests as per advice of OP Nos.1 & 2.  This complainant and others were not allowed to talk with Basanti Sarkar on the plea that patient was sleeping after 18.06.2010.  The patient was not discharged by OP Nos.2, 3 & 4 when the complainant and the other requested them to discharge the patient for better treatment.  On 19.06.2010 the patient was admitted in ICU and treated by doctors.  On 20.06.2010 the patient’s condition became deteriorated.  OPs did not inform the patient party regarding process of treatment and diagnosis.  On 21.06.2010 the patient died at 1.30 p.m.  Thereafter, that this complaint was lodged before this Forum for getting compensation of death of Basanti Sarkar caused by negligence of the doctors and hospital.

OP Nos.1, 2, 3 & 4 have contested the case by filing written version separately denying all the material allegations as made by the complainant against them. 

The OPs stated that there had been no deficiency in service and no negligence on their part. 

The OPs have stated that from the time of treatment, complainant was not present.  But OPs admitted Basanti Sarkar is a patient who was treated by OP No.1 and others.  The case has been filed by the complainant to hamper reputation of nursing home and doctors, but it is admitted that complainant was treated in the OPs’ hospital and by the OPs.  It is OPs case that the patient party did not make cooperation with the OPs.

Case of OP No.3 is that he examined the patient on 19^th June, 2010 and he shifted the patient to ICU because Oxygen circulation of patient was very much low.  At about 4.30 p.m. he advised for ventilator support and also advised to inform Dr. T.N. Sharma and prescribed for hydrocortisone injection.  The complainant refused ventilation support and catheterization but the patient suffered by cardiac arrest on 21.06.2010 and ultimately died.  Thus the total statement of four OPs can be written in a précised manner that patient was treated in the

 

Contd…….P/3

-:3:-

 

hospital by the OP Nos.2, 3 & 4.  They took sufficient steps for improvement, but unfortunately the patient died.

It is also contended that OP No.2 treated the patient on 16.06.2010.  On 16.06.2010 OP No.2 Dr. S. Sen went to Kolkata and he returned to Siliguri on first week of July.  The sum total of the OPs statement is that they provided with sufficient treatment, but in spite of that patient died. 

Complainant has filed some documents : - 

1.       Photocopies of Medical Treatment Chart/Prescription/B.H.T. 1 to 48.

2.       Photocopies of Test Report 49 to 68.

3.       Photocopies of Death Certificate of S.M.C. 69.

4.       Photocopies of Death Certificate of M.N.B.C. 70.

5.       Photocopies of Application on dated 05.07.2010 for providing of Medical Treatment Chart/Prescription/B.H.T. 71.

6.       Photocopies of Notice U/s 6 of The Right to Information Act, served on dated 15/07/2010 by lawyer 72.

7.       Photocopies of Reg. with A/D 73. 

OPs have filed some citations.   

Points for decision

 

If the complainant is able to prove his case of negligency and deficiency in service by the OPs.

 

Decision with reason

 

The complainant has filed evidence-in-chief.

In evidence-in-chief, the complainant stated that his wife got admission into the OPs hospital, and OP No.2 treated for the first time.  Treatment was done as per their procedure, but the conditions of the patient became deteriorated from 19.06.2010.  Proper treatment was not given for chest infection and urinary tract infection.  The method of treatment adopted by OP No.2 and three is not proper.  Administration of

 

Contd…….P/4

-:4:-

 

injection Hydrocortisone was not properly.  Accordingly, on 20.06.2010 the wife of the complainant died.  It is stated that if proper treatment would have been taken, life of his wife who died at the age of 42 years would be avoided.  Hence, the prayer for compensation as per the Consumer Protection Act.

The OPs also filed examination-in-chief. 

OPs admitted fact of admission of Basanti Sarkar under OP No.1 and after admission Dr. Sen and Dr. Bhutia imparted treatment for removing fever, loss of appetite, pain in abdomen, burning sensation etc. and other complications.  Later on the patient died. 

The other two doctors filed affidavit on oath and stated that there was pulmonary oedema detected in the body of the patient.  The patient was also suffering from urinary infection.  In spite of giving best effort and proper treatment by applying medicines, the patient died.  As the OPs have given proper treatment as per treatment protocol, no deficiency of service has taken place.  Accordingly, the complainant failed to prove the case. 

The expert was invited to give his opinion as per questionnaire put to the expert by the OPs. 

OP W No.2 stated in para 6 of examination-in-chief regarding Rheumatoid Arthritis, pulmonary infection, diabetes mellitus of the patient. 

It is further statement of the OPs that they have applied proper method of treatment.  But the patient was unable to give response to medicine.  As such the patient died. 

All the treatment procedures were concentrated and were referred to Dr. Uday Sankar Ghosh, medical practitioner for giving his opinion.  Accordingly, Dr. U.S. Ghosh filed the report regarding treatment of Basanti Sarkar.

This doctor stated in cross-examination that Basanti Sarkar was admitted to the Nursing Home on 16.06.2010 at 2 p.m.  The examined blood sugar was found 262 mg/dl.  The normal random sugar should be

 

Contd…….P/5

-:5:-

 

below 200 mg/dl.  On 17.06.2010 the blood sugar was 248 mg/dl.  On 16.06.2010 Basanti Sarkar was given four units of regular insulin and on 17.06.2010 she was given 14 units of regular insulin, in the morning when the sugar was 224 mg/dl and in the evening she was given eight units of insulin and random sugar was 294 mg/dl.  On 18.06.2010 she was given 14 units of insulin at 8 a.m. when sugar was 263 mg/dl.  On 170 in the afternoon she received fourteen units of insulin, when the sugar was 248 mg/dl.  At 7.45 p.m. on 18.06.2010 sugar was 489 mg/dl. and she was given 20 units insulin.  The expert opined that she should have been given further insulin on 18.06.2010.  The sugar increased two days after her admission to the nursing home.  The patient was suffering from diabetes and Acute Respiratory Distress Syndrome with septicaemia.  The expert/doctor opined that in his opinion she was afflicted with uncontrolled diabetes with respiratory infection leading to ARDS.  The doctor stated that the patient was suffering from Rheumatoid Arthritis for seven to eight years.  The doctor also expressed his opinion that one parameter FiO2/PaO2 was required to be done to confirm that she was suffering from ARDS, but that was not done in the hospital. 

The doctor also stated that without X-ray plates, it was not possible for the doctor to make any definite comment.  This doctor also stated neither the patient nor her attending parties were informed to arrange for her treatment at any other medical institution. 

This witness also cross-examined by ld advocate of OP Nos.2, 3 & 4. 

The doctor stated on 16.06.2010 at 2.30 p.m. the need for ICU was explained to the patient party.  At 2.10 p.m. on 16.06.2010 Dr. Sen found bilateral crepitations in the lungs of the patient.  He also stated Glycated Haemoglobin of 11.2 indicated that sugar must be around 350 mg/dl for the last two or three months.  The normal range of glycated haemoglobin is 4.6 to 7.0.  So, Dr. commented that patient had uncontrolled diabetes and such patient are prone of infections due to multiple factors.  Rheumatoid Arthritis is a multi system auto immune

 

Contd…….P/6

-:6:-

 

disease, which affects multiple joints, lungs in the form of pulmonary hypertension, inter-stitial lung disease and it affects nervous system, haematological system in the form of anaemia, leucopenia, thrombocytopenia etc.  The doctor also stated that Rheumatoid Arthritis is not a fatal disease, but it increases mortality, morbidity and decreases life expectancy.  The doctor also opined that the patient required intensive monitoring at the time of her admission on 16.06.2010, but I.C.U. may not be a must, but S.D.U. may be good enough.  The doctor also opined that raised E.S.R. is not necessarily an indicator of acute infection.  The doctor also gives instruction of treatment in his cross-examination that best treatment for cardiogenic pulmonary oedema is injection Lasix, with ventilatory positive pressure support, except in few conditions.  The cross examination also shows that at 5.45 p.m. on 19.06.2010 the patient’s party has been explained the necessity of ventilatory support and patient’s husband has given consent for ventilatory support.  The doctor also opined regarding application of catheterization.  The medicine and doses prescribed for the patient at the time of admission were proper, double antibiotic should have been started from day one. 

So, now questions arises whether doctors who treated the patient have discussed the application of antibiotic upon the patient with another doctor i.e., the cross examination obviously invites that some other opinion from any established literature or doctor were necessary by the OPs, but the OPs did not have recourse to such consultation regarding treatment of the patient particularly in her critical condition.  This doctor also opined that the presence of “C” reactive protein in the blood does not necessarily indicate or is diagnostic of sepsis or septicemia.  Hydrocortisone injection may be given to a rapidly deteriorating patient to see the response.  If there is a good response within short time, few more doses may be given as decided by the doctor. 

This witness expert clearly given his opinion that the condition of the patient deteriorated rapidly and became critical within 24 hours of

 

Contd…….P/7

-:7:-

 

her admission.  This doctor expert witness stated the deterioration could have been due to the primary condition of the patient, or due to development of ARDS, or due to lack of selection of exact antibiotic. 

So, the above cross-examination of expert witness does not lay any place vacant for the complainant to raise allegation that there was negligence at the every step of the progressing of treatment since 2 p.m. of 16.06.2010 till 21.06.2010 when the patient was left uncared. 

With regard to the keeping the patient in ICU or selecting antibiotic or taking opinion of any independent doctor or giving effective information to the patient party regarding deteriorated condition of the patient just after her admission, it is expected from the doctors who treats the patient in lieu of money or without money that doctor should apply their mind first to last to save the life of the patient.  It is the honourous legal duty of the doctors because the valuable right giving to a person under 21 of The Indian Constitution is in the hand of a doctor.  Doctor must be aware of that. 

Law casts duty on the doctor to apply their all necessary stapes for the betterment of the patient. 

In this case Dr. Sen OP No.2 had seen the patient, but after one day he left the patient and went elsewhere.  Another doctors OP Nos.3 & 4 treated the patient.  Dr. Sen has tied himself with the patient because patient was examined by Dr. Sen for the first time in the hospital.  The hospital authorities would have taken necessary measures for protection of treatment with due care and attention by Dr. Sen and other doctors.  But doctors did not discharge their duties as per principle of law as laid down by Apex Court while dealing with various types of cases of negligence.  It is a bounding duty of the doctor to inform the patient party regarding the necessity of treatment after every second.  In this case that has not been done.  The answers given by Dr. Uday Shankar Ghosh during the pages 1, 2, 3, 4, 5, 6 & 7 of cross examination by the OP W Nos.2, 3 & 4. 

Expert doctor’s report itself shows that each in unison with the

 

Contd…….P/8

-:8:-

 

evidence of the parties and document therein that doctors did not discharge their duty with due care and attention to the patient.  As such there was negligency on behalf of the Nursing Home authorities and on behalf of the OPs doctors not to provide and discharge due care and attention regarding treatment of the deceased.

The complainant has filed written notes on argument, wherein he has picked up some points from the evidence of the expert regarding application of injection, regarding non-application of insulin i.e., no imparting proper treatment. 

The OPs have filed written notes on argument by stating therein their own defence.  The nursing home authorities stated all kinds of cooperation were made and treatment was done as per established protocol by taking small amount of money, and medicines were given as per need of time. 

Written notes of argument has also been advanced by OP No.2.  He argued that he treated the patient for only one day i.e., on 16.06.2010 at 2 p.m. and 6 p.m.  Patient’s condition became bad after two days.  OP No.2 did not examine the patient after 6.30 p.m. on 16.06.2010.  He left nursing home on that date and Dr. Bhutia started treatment.  Dr. Bhutia argued that some other antibiotics were given after admission.  Patient’s condition deteriorated after two days of her admission to the nursing home, after which the patient was admitted to ICU.  From 16.06.2010 to 18.06.2010 Dr. Bhutia treated the patient.  OP No.3 also argued that the condition of the patient was very serious at the time of treatment and he along with others tried to save the patient but the patient did not response.  OP No.3 followed standard protocol of treatment and gave the best possible medicine.  The OPs acted one line from the expert evidence that apparently reasonable protocol was started with two drugs and as changed to broad spectrum antibiotic (emipenem) was done within two days of seeing the patient status.  It is also argued that best treatments for pulmonary oedema by applying injection Lasix were done and ventilation supports were given.  Medicines were given for urinary and chest infection. 

Contd…….P/9

-:9:-

 

It appears from the argument of the OPs that treatment has been imparted on the patient without any conversation between the doctors.  The conversation was very much essential in such type of facts when OP No.2 left the nursing home then charge of the patient was given to Dr. Bhutia and after Bhutia OP No.4 took the charge of the patient for treatment.  There is no equation of minds of the three doctors regarding treatment protocol.  The nursing home authority was also indifference regarding the condition of the patient after two days.  The argument of the OPs to absolve them from attribution of negligence is unable to stand against the case of negligence established by the complainant.  The nursing home authority is also very much reluctant towards the condition of the patient.  There is no reason to admit the patient under the supervision of OP No.2.  The patient was of 42 years age.  She came to the nursing home for treatment but was not succeeded.  She faced death due to lack of cooperation of doctors among the OPs.        

Therefore, the materials on record, mainly expert’s evidence and other materials on record inspire evidence in the mind of this Forum to hold that complainant has succeeded to prove his case.

Since, the original complainant Ranjit Sarkar died on 15.02.2012, Sri Panna Sarkar, son of Late Ranjit Sarkar came on record as substituted complainant vide Order No.38 dated 06.03.2012. 

So, the case succeeds. 

Let us now discuss regarding quantum of compensation. 

The complainant Ranjit Sarkar has prayed that OPs may be directed for payment of Rs.16,00,000/- only for compensation for loss of life of deceased Basanti Sarkar. 

For direction upon the OPs for making payment of Rs.2,00,000/- for mental tension and agony suffered by the complainant Ranjit Sarkar and cost of the suit or any other relief or reliefs.

It is to be borne in mind that patient since deceased, was admitted in the Nursing Home of OP No.1 and was treated by OP Nos.2, 3 & 4.  The doctors attached to OP No.1 Nursing Home treated the patient

 

Contd…….P/10

-:10:-

 

Basanti Sarkar but failed.  So, the patient was died at the age of 42 years.  The complainant has suffered an irreparable loss which cannot be compensated by money, land or by any property.  Death of a wife is a great loss of physical and mental to a husband and children and others member of the family and member of the society.  It is the act of the OPs which compelled deceased Basanti Sarkar to leave this world for ever.  Depriving the complainant and children and other members the pleasures of companion and facility in case of Dr. Balaram Prasad Vs Dr. Kunal Saha and others, reported in 2013 (4) CPR 284 (Supreme Court).  In para 57, 58, 59 & 60 during pages 306, 307 & 308 the Apex Court has laid down the guidelines regarding compensation.

In a renowned case Master Abhishek Ahluwalia Versus Dr. Sanjay Saluja & others judgment pronounced on 1^st July, 2014, by National Commission in Civil Appeal No.2867 and C.A. No.2866 of 2012 and others.

In para 15 it has been discussed that in the case of Indian Medical Association Vs V.P. Santha and others, their Lordship observed that to deny a legitimate claim or to restrict arbitrary the essence of an award would amount to substantial injustice to the claimant.

In Nizam Institute’s case the Hon’ble Apex court observed that the court must not be chary of adequate compensation and in an appropriate case seemingly large number of compensation is justified. 

In para 57 of the judgment, the Lordship observed that the claimant further urged that this is the fundamental principle for awarding “just compensation” and reiterated that principles of compensation is based on restitutio in integram i.e., the claimant must receive the sum of money which would put him in the same compensation as he would have been if he had not sustained the wrong. 

  Therefore, as per principles of law therein, this Forum is of the opinion that a sum of Rs.12,00,000/- if allowed, the complainant Panna Sarkar shall be compensated for the death of his beloved mother at the age of 42 years.

Contd…….P/11

-:11:-

 

It appears from money receipts appeared to have been issued by the OPs that complainant paid a sum of Rs.25,000/-.  The complainant father incurred the aforesaid expenditure. 

The complainant suffered physically and mentally due to negligence on the part of the OPs.  Therefore, the complainant is also entitled to get compensation for his mental tension and agony.  Therefore, the complainant Panna Sarkar shall be compensated by another Rs.2,00,000/- to be paid by the OPs. 

The complainant is also entitled to get litigation cost.  OPs who have compelled the complainant to come before this Forum for claiming compensation.  So, the OP must give litigation cost to the complainant.  The complainant Panna Sarkar is entitled to get litigation cost of Rs.20,000/- and other professional fees of Rs.5,000/- totalling Rs.25,000/-.

The complainant Panna Sarkar is also entitled to get interest @ 9 % per annum from the date of appearance of the OPs before this Forum till full payment. 

In the result, the case succeeds on contest. 

Hence, it is

                      O R D E R E D

that the Consumer Case No.104/S/2010 is allowed on contest.

The complainant Panna Sarkar is entitled to get Rs.25,000/- which he paid to OPs for treatment of his mother. 

The complainant is also entitled to get Rs.12,00,000/- towards compensation for his personal sufferings for the death of his beloved mother.

The complainant is also entitled to get Rs.2,00,000/- towards compensation for mental tension and agony of the complainant. 

The complainant is further entitled to get Rs.25,000/- for cost of litigation and other professional fees. 

The complainant is also entitled to get interest @ 9% per annum from the date of appearance of the OPs before this Forum, till full payment. 

Contd…….P/12

-:12:-

 

The OPs/Nursing Home and doctors, jointly and severally liable, are directed to pay Rs.25,000/- which the complainant paid to OPs for treatment of his mother by issuing an account payee cheque in the name of the complainant Panna Sarkar towards treatment his mother at Medica North Bengal Clinic, within 45 days of this order.

The OPs/Nursing Home and doctors, jointly and severally liable, are directed to pay Rs.12,00,000/- by issuing an account payee cheque in the name of the complainant Panna Sarkar towards compensation for his personal sufferings for death of his beloved mother, within 45 days of this order.

OPs/Nursing Home and doctors, jointly and severally liable, are directed to pay Rs.2,00,000/- by issuing an account payee cheque in the name of the complainant towards compensation for mental tension and agony, within 45 days of this order.

OPs/Nursing Home and doctors, jointly and severally liable, are directed to pay Rs.25,000/- by issuing an account payee cheque in the name of the complainant towards litigation cost and other professional fees, within 45 days of this order.

OPs/Nursing Home and doctors, jointly and severally liable, are directed to pay interest @ 9% per annum from the date of appearance of the OPs before this Forum, till full payment, within 45 days of this order.

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

 -Member-                          -Member-                         -President-