FINAL ORDER / JUDGEMENT

Sri. Apurba Kr. Ghosh          ……….President

The Complainant has filed this case against the O.P’s. under section 11 & 12 of the Consumer Protection Act 1986 and praying for the following order / reliefs:-

1. Directions against the O.P’s. to pay a sum of Rs. 18 lakhs for compensation & for causing mental pain & agony including expenses of the treatment.
2. Directions against the O.P’s. to pay a sum of Rs. 10,000/- to the complainant towards cost of legal proceedings.
3. Any other relief or reliefs to which the complainant is entitled as per law.

BRIEF FACT OF THE COMPLAINT

1. That, Santa Bhattacharya who was mother of the complainant aged about 67 years was detected gallbladder stone in the year 2012 which was detected from USG Report and the same was silent/without any side effect.
2. That, as there was assumption of gallbladder stone at the age of 67 years the complainant started various investigations as per consultation of Dr. Amitava Mishra at Anandaloke Sonoscane  Centre Pvt. Ltd. on 30.04.2012 to verify the clear view of post operation (Annexure-I).
3. That, the complainant in the year 2012 desired to operate the same at paramount nursing home under Dr. Bivek Sarkar but as the patient had high thyroid disease and advised on 28.06.2012 that the pre-operative examination suggests that she was unfit to undergo anesthesia and surgery due to her medical problems and she was treated with supportive measures and discharged (Annexure-II page 2).
4. That, on 12^th August  2012 under the guidance of Dr. A.K. Mishra at Alipurduar held Ultrasonography of upper abdomen and thyroid was controlled and on 09.06.2015 the mother of the complainant was taken to Hill Top Nursing Home, Siliguri for check up before Dr. Arun Kumar Gupta, Some tests as X-Ray, Blood Reports were done and she was able to go through operation (Annexure-III, Page 3 to 12).
5. That, the family of the complainant decided to operate at Medica North Bengal Clinic and Dr. Soumitra Saha asked the patient to admit on 22.06.2015 and decided to operate on 23.06.2015 (Annexure-IV, Page-13).
6. That, as per advise of Dr. Soumitra Saha the mother of the patient was admitted on 22.06.2015 routine check up like X-Ray, ECG, Blood tests were done prior to operation (Annexure-IV-Page-14 to 17)
7. That, on 23.06.2015 gallbladder operation was done, taking time more than one hour/she was shifted to recovery unit in the evening at 3.45 pm with support of oxygen/she was unconscious for whole night/ in the afternoon she was shifted to general bed i.e. on 24.06.2015 evening/she was not clear from drowsiness and somehow she could able to speak that she was not well/at about 11-45 pm complainant was called from the OP no. 1 and after arrival he observed that his mother was transferred to recovery unit again as she was in serious condition/at late night at about 12.10 am the OP No. 2 attended the patient along with Dr. Sharma who declared that the patient had failure of heat/ at about 3.15 am the patient some how became normal and seems to survive (Annexure-V- page- 18 to 23).
8. That on 25^th morning the OP no. 2 suggested that, due to the problems of heart one medical team will continue to take charge all round the  day & night. But no improvement gained by the medical team/the right lower zone of the patient appears to collection which was detected by the C.T. Scan report dated 01.07.2015 (Annexure VI-page- 24 to 45 & 46 to 47 discharge).
9. That, the complainant made a consultation with Dr. C.P. Sharma at Nivedita Nursing Home who advised to admit her to Nivedita Nursing Home /on 02.07.2015 the mother of the complainant was admitted there/ collection which was detected was treated through pigtail and the patient  was discharged on 11.07.2015 (Annexure- VII – page 48 to 69).
10.  That, the patient was attacked with fever after a week of discharge and was slowly under control and again admitted to Nivedita Nursing Home on 24.07.2015/ detected again she had collection/ on repeated query the OP no. 2 did not explain the fact of such collection/ again collection was reduced through pigtail as the patient was discharged on 01.08.2015 (Annexure- VIII, Page- 70 to 78).
11. That, the family of the complainant shifted her to Asian Institute of Gastroenterology Hydrabad – 500082, India on 06.08.2015 and doctor of the said institute checked her on 08.08.2015/ they stated that the operation done by the OP’s was not to perfection of mother of the complainant and seems some leakage during the operation on 24.06.2015 and due to such massive heart attack the mussels of the heart had been damaged. (Annexure- IX, Page 79 to 102),
12. That, the patient was  admitted from 08.08.2015 to 10.08.2015 at Asian  Institute of Gastroenterology Heritage Block in General ward and after thorough check up they decided  and advised for ERCP to stop the leakage but the patient cannot  afford the said ERCP.
13. That, the weakness gradually increased and treatment could be availed from the Asian Institute of Gastroenterology unit and the patient expired on 13.08.2015 due to massive heart attack and Dr. Ashis Patil of that Institute stated that, at the time of operation of the patient she had higher thyroid and creatinine which damaged the heat (pages 103 to 104).
14. That, due to lack of ignorance and knowledge in medical side and due to negligence of the OP’s the mother of  the complainant faced physical and financial loss and the cause of death was due to rash and negligent act of the OP’s/ the OP’s committed negligence while performing surgical operation of the mother of the complainant  resulting total loss of life and the OP’s are liable to pay compensation.

In support of the complaint the complainant has filed the following documents:-

1. Xerox copy of the medical papers of Medica North Bengal Clinic (Annexure-I, Page- 1 to 47).
2. Xerox copy of the medical papers of Nivedita Multispeciality Hospital. (Annexure – VII, Page- 48 to 78).
3. Xrox copy of the Medical papers of Asian Institute of Gastroenteronoly, 6-3-661, Somajiguda, Hyderabad- 500082, India ( Annexure- IX, Page- 79 to 102.
4. Death Certificate Page 103 to 104.
5. Pension Paper of Deceased Page – 105
6. Bank Pass Book of Deceased Page- 106
7. Application (Xerox) for closing of pension of Deceased.

Notice was sent from this commission for serving the same upon the OPs. On receipt of notice both the OP’s have appeared before this commission, filed their written version. In the written version the OP no. 1 has stated that, the statements made in Para No. 1 of the Plaint are not admitted except which are matter of record/ the statements of para no. 2 to 5 of the complaint are not known to the OP no. 1 / the statements of para no. 6 of the complaint is admitted. OP no. 1 admits that, the mother of the complainant was admitted in their Nursing Home on 22.06.2015 as per advise of Dr. Soumita Saha ( OP no. 2). The OP no. 1 has also stated that, regarding para no. 7 & 8 of the complaint  that, the timing of surgery was from 2.50 pm to 3.20 pm and actual time of operation as per OT log was  around 30 minutes and all support required facilities had been provided to the complainant’s mother, the patient developed sudden heart failure around midnight of  24.06.2015, she was attended by Dr. Soumitra Saha and Dr. T.N. Sharma and all necessary measures was taken and the patient was discharge from their Nursing Home on 02.07.2015 at 11-30 am. The OP No. 1 has further stated  regarding para no.  9, 10, 11 of the complaint that, the patient left the hospital premises against the medical advice and advised the patient to continue treatment and the treatment done in the OP no. 1  was satisfactory and OP no. 1 stated that, regarding para no. 10 to 13 the OP no 1 has no knowledge  regarding para no. 14 to 15 of the complaint the OP no. 1 has stated that the same are incorrect & denied as the OP never indulged in any rash and negligent act nor there was any deficiency in service on the part of the OP no. 1 and regarding parea no. 16 of the complaint the OP no. 1 has stated that the OP no. 1 is not guilty of any negligence or deficiency in service and the complainant is not entitled to get any compensation.

The OP no. 2 in his written version stated that, he is a surgeon by profession and working at OP no. 1/ he has done M.S. in General Surgery from Calcutta University in 1991, MBBS in the year 1987, FRCS from London & Glasgow U.K. He further stated that, the statements  made in Para No. 1 to 4 of the complaint  petition are not known to him/ para no. 5 is matter of record/ regarding  para No. 6 to 8 stated that, the patient was admitted for  laparoscopic cholecystectomy  done under GA on 23.06.2015 for cholelithiasis and actual operation time as per OT log was 30 minutes and operation was straight forward without any intra operative difficulty and patient was shifted out of  OT when regain consciousness, she had drowsiness due to after effect of anesthesia, she was following  commands with normal vital signs on the evening of operation/she  was conscious and hameo dynamically stable in the 24^th June  morning she was transferred to general ward she developed heat failure around mid night on 24^th June /she was attended by him and Dr. T.N. Sharma, necessary steps were taken. The OP no. 2  has further stated regarding para no. 9 of the petition that, the mother of the complainant left the OP no. 1 against the medical advice and other doctors had advised her to continue treatment in the OP no. 1. But the patient partly had refused to listen the same/ the OP no. 2 has also stated regarding Para No. 10 to 13 of the complaint that the same are not known to  him and Para no. 14 is false /regarding contents of para no. 15 & 16 of the complaint the OP no. 2 stated that, there was no negligence or deficiency in service on his part and he treated the patient diligently and sincerely as per standard protocol of treatment. He further stated that, no cause of action arose on any date for filing of this case and the complainant has filed this case against the OP’s with an ulterior motive for illegal gain.

By filing the written version the OP no. 2 praying for dismissal of this case.

Having heard the Ld. Advocate of both the parties and on perusal of the complaint, documents filed by the complainant and written version of the OP’s the following points are to be considered by this Commission.

POINTS FOR CONSIDERARTION 

1. Whether the Complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act 1986?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of the Complaint?

                   Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

The complainant was given opportunity to prove its own case by producing evidence. To prove the case the complainant has filed written deposition in the form of an Affidavit. In the written deposition, the complainant has stated/ corroborated the contents of the complaint / he himself in his evidence has stated on which day her mother was admitted in the OP No. 1 for operation / the date of operation which was conducted by the OP No. 2 and what complication had arisen immediately after the operation. The Complainant has further stated in his evidence as well as in written notes of argument that, he filed several medical documents including the opinion of expert wherefrom it can safely be presumed that there was negligence as well as lack of duty of taking care on the part of the OP No. 2 at the time of holding operation. In the written evidence the complainant has further stated that, he produced documents which are marked as Annexure I to IX including the death certificate, expert opinion, medical discharge certificate, to prove the medical negligence case against the OPs.

At the time of argument Ld. Advocate of the complainant has stated that, they have filed written notes of argument and stated everything there. It is further argument of the complainant that the complainant has been able to prove the case against the OPs to the effect that, there was deficiency in service as well as negligence on the part of the OPs and thereby the complainant is entitled to get compensation from them. It is also argument of the complainant that, they have filed not only the medical documents issued on the side of the OPs but also they filed other medical documents of expert doctor along with expert opinion wherefrom they have been able to prove the case against the OPs beyond all shadow of doubt. In the written notes of argument the complainant has specifically stated that, feeling some smell of negative in health of the patient the complainant took her mother to Asian Institute of Gastroenterology, Hyderabad on 06.080.2015 and the doctor of that institute examined the patient on 08.08.2015 and the doctor narrated that, the operation done by the OPs was not to perfection of the mother of the complainant and seems some leakage during the operation on 24.06.2015 and that’s why the patient sustained massive heart attack and due to such heart attack the muscles of the heart had been damaged. In the written notes of argument it is also stated by on side of the complainant that the doctor Ashis Patil of Asian Institute of Gastroenterology, Hyderabad stated in the report that, at the time of operation of the patient she had higher Thyroid and creatinine which damaged the heart.

To falsify the case of the Complainant the OP No- 1 & 2 have filed their written evidence on Affidavit . In their separate Affidavit they have corroborated the contents of their Written Version . In the Written evidence both the OP’s have stated that there was no negligence on their part as well as deficiency in service in treating the mother of the Complainant.

At the time of hearing of argument on the side of the OP No. 1 (Medica North Bengal Clinic) Ld. Advocate submits that, they have already filed written notes of argument to falsify the case of the complainant. During hearing of argument Ld. Advocate of the OP No. 1 submits that, the OP No. 1 is a nursing home which provided its services when the complainant went to consult the OP No. 2 and when the mother of the complainant was admitted as a patient and the OP No. 1 had no role in the treatment of the patient Smt. Santa Bhattacharjee other than performing some diagnostic tests and scans. The OP No. 1 in its written notes of argument has stated that, it had no role in the treatment of the patient and there is no specific allegation against the OP No. 1 by the complainant and there was no deficiency in service on the part of the OP No. 1 in providing any facility or service to the complainant and the complainant has filed this case being misguided by some other persons with an ulterior motive for gain illegally. It is also stated in the WNA that, the complaint had been filed against the OP No. 1 with mala fide intention to hamper the reputation and professional goodwill and the complainant did not file any expert opinion to prove its case.

Ld. Advocate of the OP No. 1 by referring a decision reported in 2005 CrLJ 3710 SC submits that, a physician would not assure the patient of full recovery in every case, a surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100 % for the person operated on.

 Ld. Advocate of the OP No. 1 also referred decisions viz.  i) AIR 2010 SC 806, ii) 2005 CrLJ 3710 SC, iii) 2009 (2) CPJ 48 SC , iv) 2010 (III) CPJ 1 (SC).

Ld. Advocate of the OP No. 1 by referring those decisions argued that, the complainant has not adduced any expert evidence and that’s why the presumption in such a case is that, had he adduced any expert evidence it would have been unfavourable against him and as the case of the complainant has no legs to stand upon is liable to be dismissed.

Ld. Advocate of the OP No. 2 during hearing of argument submits that, they have also filed WNA and stated everything there. During oral argument Ld. Advocate of the OP No. 2 argued that, the complainant has failed to prove the case against the OP No. 2 by producing expert evidence and the complainant has filed the instant case only to extort compensation from the OP No. 2 knowing fully well aware that there was no deficiency in service on the part of the OP No. 2 in discharging its duty during operation.  It is also argument of the OP No. 2 that, they have filed evidence on affidavit on 09.06.2017 and the OP No. 1 has also filed examination in chief on 09.06.2017 and stated everything there. It is further argument of the OP No. 2 that, he is a doctor by profession attached to the OP No. 1 Nursing Home and there was no negligence or deficiency in service on the part of the OP No. 2 in treating the mother of the complainant. It is further argument of the OP No. 2 that, Mrs. Santa Bhattacharjee was admitted for laparoscopic Cholecystectomy for cholelithiasis and total time spend for inside OT was more than one hour and actual operation  time as per OT log was around 30 minutes and operation was straight forward without any intra operative difficulty and the patient was shifted out of OT only when she regain consciousness and she was following commands with normal vital signs in the evening of the operation and thereafter she was transferred to the general ward, who developed sudden heart failure around mid night on 24^th June and promptly attended by OP No. 2 and Dr. T. N Sharma and necessary measures instituted with medical referral planned for next morning. In the written argument, the OP No. 2 has stated that, from the death report given by Asian Institute of Gastroenterology on 13.08.2015 it is clear that the, patient Santa Bhattacharjee suffering from sepsis and the cause of death was cardiac arrest with right lower zone pneumonia with septic and sub diaphragmatic collection and the allegations of the complainant are mere statements as well as allegations without any proof. Ld. Advocate of the OP No. 2 has also argued that, in the case in hand, the complainant has only filed written evidence without supporting any medical expert report and also did not file any application for appointment of an medical expert in the field of surgery or cardiology.

Ld. Advocate of the OP No. 2 has also referred similar decisions which have already referred on behalf of the OP No. 1. By referring those decisions, Ld. Advocate of the OP No. 2 submits that, the complainant has failed to prove this case against the OPs and the complaint is liable to be dismissed.

Having heard the Ld. Advocate of both the sides and on perusal of the complaint, written version of the OPs as well as evidence of the parties including the documents filed on behalf of the complainant it is admitted fact by both the parties that, Mrs. Santa Bhattacharjee, mother of the complainant was admitted in the OP No. 1 nursing home. It is also admitted fact by both the parties that the operation was conducted by the OP No. 2. It is also admitted fact that, on the late night of the date of operation the patient sustained massive heart attack. In the complaint as well as written evidence the complainant has specifically stated that, there was negligence on the part of the OPs as well as deficiency in service including lack of duty of taking care of the patient at the time of operation for which she was attacked with fever after a week of discharge and was slowly not under control and she was compelled to consult with DR. CP Sharma at Nivedita Nursing Home in which the doctor advised to admit her and as such on 02.07.2015 the mother of the complainant was admitted to Nivedita Nursing Home. From the document submitted by the complainant (Annexure VII) it was found that, the right lower zone of the patient appears to collection which was detected by the CT Scan report dated 01.07.2015. It is needless to mention here that, though the collection of the patient was reduced / removed through pigtail but again the patient appears to collection which needs further treatment through pigtail. But it is not explained on the side of the OPs as to why the patient appears to collection within a certain interval though it was reduced through the treatment of Pigtail. The complainant in his evidence as well as through expert opinion which was issued on the side of the Asian Institute of Gastroenterology Hyderabad, Dr. Ashis Patil stated that, at the time of operation of the patient she had higher thyroid and creatinine which damaged the heart of  the patient. But the said evidence of the complainant including the opinion of the expert has not been challenged on the side of the OPs. In the case in hand we find that, the unfortunate death of the mother of the complainant was caused due to failure of the OP No. 2 in not adopting reasonable skill, as well as failure of duty of the OP No. 2 of taking care at the time of holding operation. There is every possibility that due to negligent act of the of the OP No. 2 there was some leakage during operation for which the mother of the complainant sustained massive heart attack resulting the collection in the right lower zone of the patient and the same was detected by the CT Scan Report. Even after removal of collection through pigtail the said collection again detected through investigation. In this regard the OP no. 2 neither in his written version nor in his written evidence has explained about the said fact of collection though the complainant asked the OP No. 2. On the other hand from the Annexure IX, page 79 to 102 which was filed on the side of the complainant it reveals that, the doctor of Asian Institute of Gastroenterology, Hyderabad 500082, India after checking up the patient on 06.08.2015 narrated that, the operation done by the OPs was not to perfection of the mother of the complainant and seems some leakage during the operation on 24.06.2015 and that’s why there was massive heart attack and due to such heart attack, the muscles of the heard had been damaged.

The OP No. 2 did not challenge the Annexure IX, page 79 to 102 by providing cogent evidence in this regard.

Be it mentioned here that, the complainant in order to prove the case, filed documents as Annexure IX, page 103 to 104 before this Commission. From the said documents it clearly proves that,  Dr. Ashis Patil of Asian Institute of Gastroenterology has stated that, at the time of operation of the patient she has higher Thyroid and creatinine which damaged the heart. But the OP No. 2 has stated nothing as to why he operates the mother of the complainant though she had higher thyroid and creatinine. Neither the OP No. 1 nor the OP No. 2 have adduced any evidence to explain as to why operation was done by the OP No. 2 of a person who had higher thyroid  as well as creatinine.

Regarding existence of higher thyroid and creatinine in the body of the patient prior to operation which has been stated by the complainant has not been challenged by the OPs and therefore presumption of negligence as well as lack of due care goes against the OPs.

To falsify the case of the complainant the OPs have not filed any valid documents to disprove the claim of the complainant regarding existence of higher thyroid and creatinine prior to holding operation.

From the record it is admitted by the OPs that, the mother of the complainant was admitted in the OP No. 1 and it is also admitted fact by the OPs that, the mother of the complainant was attacked with sudden heart attack at the late night of 24^th June 2015.   

By referring several decisions on behalf of the OPs  Ld. Advocate  argued that, the complainant has not adduced any expert evidence and that’s why presumption will go against the complainant as had the complainant adduced any expert evidence it would have been unfavourable against him and that’s why the case of the complainant has no legs to stand upon. But the decisions of [2010] 5 SCR 1 V Kishan Rao – Versus – Nikhil Superspeciality Hospital and another (Civil appeal No. 2641 of 2010) Hon’ble Court has Opined otherwise , where it was held that- “…..Expert evidence is not required in all medical negligence cases- expert evidence is necessary when Fora comes to the conclusion that case is complicated or such that it cannot be resolved without assistance of expert opinion”. But in the case in hand there is no such findings in this regard.

It is needless to mention here that, in a medical negligence case the following three points are very much vital to adjudicate the case viz. i) Whether the doctor owed a duty of care to the patient.

ii) Whether there was a breach of duty towards the patient  iii) Whether as a result of that breach of duty of care harm caused to the patient or not ?

In the case in hand it is admitted position that, the mother of the complainant was undergone operation by the OP no. 2 in the Nursing Home of the OP No. 1.  From the record it also established that, after the operation the mother of the complainant was not cured and she was not full clear from the drowsiness for a long period when she was shifted to the general bed on 24.06.2015 and at the late night at about 12:10 AM the doctors of the OP No. 1 declared that, the patient had heart failure. But the OP No. 2 has failed to explain before the complainant either by producing cogent documentary evidence or through opinion of expert. On the other hand- “the principle of res ipsa loquitur operates in medical negligence case and the complainant does not have to prove anything as the things proves itself”. In such cases, it becomes the responsibility of the doctor to demonstrate and explain that, they have taken due care and fulfilled their duty of taking care. But in the case in hand the doctor has failed to explain as well as failed to demonstrate that they have taken due care and they were not negligent.

 In the case in hand the OPs have also failed to satisfy the standard of reasonable care as laid down in the Bolam case and adopted by Indian Courts.

It is needless to mentioned here that, a doctor had a duty of taking care to the patient which in the case in hand the OP No. 2 Dr. Soumitra Saha has/had breached that, duty of care by not providing appropriate standard of care and for the said breach it caused leakage for which the right lower zone of the patient appears to collection and the same was detected by C.T. Scan Report and that collection could not reduced or removed permanently due to the said leakage.

It is fact that, for the better treatment and for better management the patient was compelled to go to Asian Institute of Gastroenterology, Hyderabad where she was admitted from 08.08.2015 to 10.08.2015 and for that treatment the complainant sustained huge monetary loss and later on the mother of the Complainant has died. Prior to that the mother of the complainant was taken to Nivedita Nursing Home, she was admitted there on 02/07/2015 and discharged on 11.07.2015.

Considering all we are of the view that, both the OP’s have tried to thwart the case of the complainant by filing evidence on affidavit and also by referring decisions. But from the evidence of the complainant and medical documents filed by him it is proved that, both the OP’s have failed to falsify the case of the complainant. Accordingly we hold that the complainant  has been able to prove the case against both the OP’s and complainant is entitled to get relief as there was deficiency in service on the part of the OP’s towards the mother of the complainant.

It is settled law that, the Nursing Home is vicariously liable for the acts of its doctors as held by the Hon’ble Supreme Court in the case of Savita Gargi-Versus- National Heart Institute, VI (2004) S.T. 385/IV (2004) CPJ 40 (SC). It was held that “the patient goes there on account of the reputation of the hospital and with the hope that, due and proper care will be taken by the hospital authorities. If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis it is the hospital which has to justify the acts of Commission or Omission on behalf of their doctors”.

The decisions referred on behalf of the OPs are not applicable to the facts and circumstances of this case.

Hence, it is therefore,

O R D E R E D

That, the instant consumer case being in No. 134/2015 hereby allowed on contest but in pat. Both the OP’s are jointly and severally liable to pay the awarded amount. The OP’s are directed to pay a sum of Rs. 3,00,000/- (Rupees Three Lakh) only to the complainant towards expenses for treatment as well as compensation for causing mental pain, agony & deficiency in service. The OP’s are further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only to the complainant as cost of legal proceedings. The OP’s are further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only  in the Consumer Legal Aid Account of this Commission.

The OP’s are directed to pay the awarded amount within 45 days from this day failing which they will have to pay interest @ 7 % per annum with effect from this day.

Let a copy of this order be given to the parties free of cost.