IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.

                     CASE No.  CC/124/2019

 Date of Filing:                                     Date of Admission:                   Date of Disposal:

   29.08.2019                                              04.09.2019                                       21.02.2024      

Complainant:      Sibsankar Pal

             115, Sutirmath, Battala.

             P.O.Berhampore.

        Dist. Murshidabad Pin.742101.

                                                -Vs-

Opposite Party: 1. Monmohini Health Care Pvt Ltd.                

         being represented by Aloke Shaw,

         24/A/B/ 15, Kalikapur Road. Silpataluk.

                                  PO & P8. Berhampore. Dist. Murshidabad.

       2) Dr.Aurobinda Banerjee of

        Monmohini Health Care Pvt .Ltd.                       

      24/A/ B/15, Kalikapor Road. Silpataluk.

                   PO & PS. Berhampore.

                   Dist-  Murshidabad

Agent/Advocate for the Complainant                        :           Self

Agent/Advocate for the Opposite Parties                  :            S.S. Dhar

           Present:   Sri Ajay Kumar Das…………………………..........President.     

               Sri. Nityananda Roy…………………………………….Member.

FINAL ORDER

   Sri  Ajay Kumar Das, Presiding Member.

   This is a complaint under section 12 of the CP Act, 1986.

One Sibsankar Pal (here in after referred to as the Complainant) filed the case against Monmohini Health Care Pvt Ltd. & Anr. (here in after referred to as the O.P.s) praying for compensation alleging deficiency in service.

 The complainant’s case is quoted below :-

1. On 14.05.2019 at about 4.00 P.M, complainant’s wife (RIKTA PAL) (herein after referred to as patient) 65 Years old, was admitted at Monmohini Health Care Pvt Ltd. , 24/A/B/15 Kalikapur Road, Berhampore, Shilpataluk, Murshidabad, PIN-742101, in the emergency ward, when one  I  Dr. Debangshu  Chandra  Das(RMO) examined her and practically Dr Das on hearing me (hereinafter referred to as the complaint) prescribed all the medicines, which the patient usually used to take ( the prescription is with the Nursing Home).
2. On the same day after sometime the patient was taken to I.C.U  bed  No.5,  when the Complainant was advised to consult another doctor (Seemed to be R.M.O), who was inside the I.C.U. and that   Doctor  also practically  hearing  the complainant  and  seeing some other  documents appeared  to  have  prescribed  medicines  and the RMO told  the  Complainant that the patient  had   been   admitted    under Dr. Aurobinda Banerjee (hereinafter referred to as Dr. Banerjee). The Complainant however thought that the said Doctor sitting at I.C.U. was Dr. Aurobindoa Banerjee. And out of curiosity the Complainant asked him “ what is Restrictive Cardiomyopathy “ for which the patient was admitted. The said Dr. told that “ in order to know the disease, you shall have to study more.” Such language of the said Dr shocked the Complainant very much. After some time, the Complainant however left the Nursing Home.
3. On 15.05.2019 at about 12 noon, the Complainant along with his son, on hearing the announcement that Dr. Banerjee was coming to meet the patient party in the Counselling Room, entered therein and on seeing the doctor’s face, the Complainant asked him, if on 14.05.2019 in the I.C.U. the Complainant met him. Then he answered “NO”, and then the Complainant came to know that on 14.05.2019, the Dr. attending the patient in the I.C.U was another R.M.O. Dr Banerjee however narrated the condition of the patient and on 15.05.2019 Dr Banerjee told that M.R.I of brain of the patient was needed as the Nursing Home has no facility for M.R.I. of brain, the patient was required to go to Laldighee Medical Centre for the purpose and on his advice, the investigation slip was issued by the Nursing Home on 15.05.2019 (Annexure-1) and the patient was brought to Laldighee Medical Centre at the Complainant’s cost by ambulance being accompanied by one lady attendant of the Nursing Home and by Complainant and his son, and after depositing the necessary amount, the patient was taken to the M.R.I Room but due to restless condition of the patient, M.R.I. of the brain could not be done. The patient was brought back to Nursing Home and on the same day in the evening, in the Counseling Room the Complainant and his son met Dr. Banerjee and narrated the entire episode. For a while Dr. Banerjee kept himself mum and thereafter told that, it was further not necessary, (If that be so, the Complainant failed to understand as to why the patient was advised by Dr. Banerjee to undergo M.R.I. of brain, which albeit had to be done outside the Nursing Home after the patient being brought to a considerable distance away, which might have endangered the life of the patient.)
4. On 16.05.2019 when the Complainant and his son went to I.C.U to visit the patient at visiting hour,  we were given to understand that as the patient was little better, she was transferred to H.D.U -6 (High Dependency Unit).On 16.05.2019 we also met Dr Banerjee in the counseling room at the nursing home when the Dr. told that the patient was little better and needed certain other medicines.
5. On 17.05.2019 the complainant and his son visited the patient in the H.D.U when the patient desired to take Home-made food, and in the Counseling Room the Complainant told Dr. Banerjee about the same, when Dr. Banerjee told that he already allowed to accept Home-made food and advised the concerned Nurse in this regard.
6. On 18.05.2019 the Complainant and his son visited the patient in the H.D.U, and brought home-made Suji and posto , and eating the same the patient told that she relished all those food . During visiting hour, the patient told that one physiotherapist also examined her and found her well.
7. On 19.05.2019 , in the Counseling Room , from Dr Banerjee , the Complainant came to know that certain problems of the patient cropped up and antibiotic medicine was applied. On being puzzled, on the next day 20.05.2019 the Complainant gave in writing to the Nursing Home Authority to form a Medical Board for better investigation of the patient, but the Nursing Home Authority did not take any action and the Complainant was given to understand that as the patient was in better condition, formation of Medical Board was not necessary. ( The said hand written application is with the nursing home )
8. On 20.05.2019 during visiting hour the Complainant and his son met the patient who then told that she was feeling better and requested to get her released from the Nursing Home and to bring her to home. The patient also told that the physiotherapist also told her that she would be released. On the same day i.e on 20.05.2019 , in the Counseling Room, the Complainant met Dr Banerjee and expressed that as the patient was feeling better, let her be released . The Dr Banerjee however told that further investigation was necessary and the patient needed to stay further in the Nursing home.
9. On 21.05.2019, Complainant and his son however came to know from Dr Banerjee that water accumulated in the lung of the patient and certain amount of fluid was taken out but due to absence of the pathologist, no examination was done. Again on the same date further fluid was taken out from the lung of the patient and was examined. (We failed to understand as to why first time fluid was taken out from the lung of the patient for examination, in spite of absence of the pathologist ). It is a glaring example of the deficiency in service of the concerned Dr and the Nursing Home Authority. The Complainant was also given to understand that on and from 20.05.2019, BIPAP support was given to the patient.
10. On 22.05.2019, at the time of visiting hour the patient expressed that she was feeling better and she did not want to stay further in the Nursing Home. On the same day in the counseling room at noon the Complainant met Dr. Banerjee and told that the patient did not want to stay further, when on request Dr. A. Banerjee told that he would make the patient understand to stay further. In the afternoon visiting hour, the patient was found crying and become restless for going to home. In presence of the Complainant, one instrument appearing to be nebulizer was applied to the patient by one attendant. On the same day (22.05.2019) in the counseling room at night Dr. A. Banerjee was consulted and Dr. Banerjee told that he made the patient understand to stay for further period.
11. In the morning of 23.05.2019 the complainant got information from the nursing home over telephone that the patient party was asked to meet the sister in the Nursing Home quickly. Without making any delay first the Complainant along with his son at about 7.00 A.M came to Nursing Home, when one Dr (seemed to be R.M.O) came out and expressed that "the patient was under massive heart attack" and further told that somehow the patient was managed to be survived and the patient needed ventilation. On consent, the patient was given ventilation support again on bringing to I.C.U- 9 from HDU -6. Dr. Banerjee however came about after one hour to visit the patient.
12. Be it mentioned here that when the Complainant and his daughter entered the H.D.U, one of the attendants (Aayya) for the reasons best known to her, suo motu, told that at night BIPAP support was given to the patient and even in the very morning the patient herself brushed tooth etc, . So, if this be the situation how even after brushing the tooth by the patient herself, the condition of the patient within such small time became deteriorated. So the Complainant found some fishy smell here and perhaps in order to conceal something the said Aayya was tutored to tell such matter to the patient party.
13. On the same day 23.05.2019 forenoon in the counseling room the Complainant along with his son, his son- in law, his daughter, met Dr. Banerjee, when Dr. Banerjee told to take the patient to Medica at Kolkata by ventilation supported ambulance with the hope of 50-50 chance to survive .The Complainant and other asked as to how the patient on 23.05.2019 came to such a dying condition, particularly when the patient on 22.05.2019 till evening was much better and if any hard language was used towards the patient either by the Dr. himself or by any attending person like nurse, aaya etc. for her further stay in the nursing home because of the fact till evening of 22.05.2019 the patient was very much eager to go to the home on being released. Complainant and other also wanted to know from Dr Banerjee if the patient was given the BIPAP support on 22.05.2019 at night, and also if due to excitement the patient's condition further deteriorated The doctor was to some extent fumbling and sometime he told that BIPAP support was given and sometime told that the same might not be given in order to get sure if the patient without BIPAP support could run or not. Dr. Banerjee further told that there was no relation of further deteriorating condition even if the patient became excited. The Dr, tried to make us understand rather by drawing something of life science subject.
14. Throughout the day the Complainant and others became puzzled as to further course of action and on request another Dr. Manas Ghosh visited the patient and in the counseling room at noon (23.05.2019) the patient party met Dr. Ghosh and came to know that there was little chance to survive, and on being asked Dr Ghosh very much told that there was every possibility of further deteriorating ondition of the patient if the patient became excited, when the patient was especially suffering from Restrictive Cardiomyopathy disease associated with other ailments, for which the patient was admitted . ( Such statement of Dr. Manas Ghosh is highly contradictory to the statement of Dr. Banerjee). Dr. Ghosh however did not give any positive hope regarding patient to the patient party.
15. The patient party after sometime, in the afternoon came to reception counter No - 1 and on seeing the nameplate of Cardiologist, the Complainant requested them to send a message to the said cardiologist to attend the patient as it was a case of massive heart attack. The Complainant however came to know that the said cardiologist was not available and once in a month the said cardiologist used to come to the nursing home. From the name plate and the Hanging Board it could not be reflected that the said Cardiologist used to come to Nursing Home only once in a month. The patient party apprised the entire matter to the Nursing Home Manager, who admitted such deficiency and expressed that for the sake of business the name of the cardiologist was hung without disclosing his attendance in the Nursing Home once in a month. (The Complainant however thought that had the patient been attended by any cardiologist, the condition of the patient would have been otherwise.) This type of practice on the part of the Nursing Home Authority is the naked illustration of fraud practice upon the public at large.
16. Again on 23.05.2019 at night the patient party met Dr. Banerjee at the counseling room, in presence of one RMO who told that "the patient was under massive heart attack". The Complainant told about the language of RMO to Dr A Banerjee, who however expressed that it was a case of " massive cardiac arrest and not massive heart attack, and that the RMO, wrongly told that it was a case of " massive heart attack". As a lay man the Complainant however did not understand the difference in between the two languages. Dr. Banerjee for the reasons best known to him then tried to explain by drawing some physiological picture. Thereafter on the advice of Dr.Banerjee, the Complainant managed to bring one ventilation supported ambulance and at about 12.15 A.M (24.05.2019), the Complainant along with his son, daughter and son-in-law started for Medica Super Specialty Hospital (Kolkata ) being accompanied by one Doctor & technician, and on the way the patient expired at about 03.15 A.M (24.05.2019) and brought back to home. (On the way the Ambulance had to be stopped twice for ongoing deterioration of the patient and for medical check-up by the attending Doctor in the Ambulance). Death Certificate was obtained from local Dr. Amitava Das (( Annexure - G )
17. In this connection it is significant to note that the details of medicines have not be given in the final Bill, which obviously put the Complainant in dark as to what medicines were applied upon the patient on those particular dates.
18. Again the Nursing Home Authority appears to have charged considerable amount against I.C.U/ H.D.U procedure charges under certain headings on different dates. It is not properly understood what is the meaning of procedure charges.
19. On 23.05.2019, certain amount also appears to have been charged against Syringe Pump (per day). If the same is per day, then why amount has been charged twice.
20. It is also surprising to mention that one receipt has been given on 23.05.2019 at 10.57 p.m, charging a sum of Rs 700/- by mentioning" on behalf of consultant DIPAYAN TARAFDAR". Again it is not understood as to when Dr Dipayan Tarafdar, was consulted, which is another example of unfair trade practice on the part of Nursing Home Authority. (Annexure - D)
21. Again it also astonishing to note that at the time of releasing the patient on 23.05.2019 at night, the Nursing Home Authority returned one unused Respirometer (Respiratory Exercises) along with certain other documents and articles . The Complainant fails to understand if such machine was not required, why the same was purchased at the cost of Rs - 550/- or even after direction of the Dr. for using the same, due to negligence of the staff, the same was not used. Such matter also needs to be explained by the Nursing Home Authority. (If required, the said unused machine can be produced before the Hon'ble Forum. )Again On 23.05.2019, at 10.58 P.M a sum of Rs 200 appears to have been charged by mentioning " on behalf of consultant MAMPI PRAMANIK (DIETICIAN) ".(Annexure - E) It is also not properly understood what prompted the Nursing Home Authority to charge such amount at that time. This is another example of earning money by the Nursing Home Authority fraudulently.
22. In all the Complainant paid a sum of Rs 1,39,471( Rs one lakh thirty nine thousand four hundred seventy one only) to the Nursing Home Authority, for which the vouchers have been given. (Annexures- A,C,D,E together)
23. A sum of Rupees 16,000 has also been incurred towards expense of Ambulance service. (Annexure-F)
24. All original vouchers and other documents have been deposited with the Ld. District Judge, Murshidabad, for getting medical reimbursement, and for which photocopies of the same are being submitted before the Hon'ble Consumer Forum .
25. Therefore from the above episode, it is clear that Dr. Banerjee, in connivance with the Nursing Home Authority, kept the patient unnecessarily in order to augment the income of the Nursing Home and had the Dr. Banerjee been so fair, he would have released the patient early when feeling better by referring to higher institution for the purpose of better investigation and treatment, whenever Dr Banerjee had the full knowledge that the Nursing Home had no better machinery for investigation and treatment .
26. The entire episode mentioned supra is the glaring example of deficiency in service & unfair trade practice, on the part of Dr. Banerjee as well as the Nursing Home Authority which ultimately pushed the patient into the death door, causing severe mental trauma upon the Complainant, and till the end of life, the Complainant being the unfortunate husband of the deceased shall have to bear such mental trauma.
27. The cause of action arises on 24.05.2019 within the jurisdiction of the present Hon'ble Consumer Disputes Redressal Forum, Berhampore, Murshidabad.

The Complainant therefore has come up before the Redressal Commission, with the prayer as mentioned in the complaint.

Defence Case

O.P. No. 1 appeared and adopted the W/V filed by the O.P. No. 2 and it has been mentioned in order no. 25 dated 18.05.2022. According to OP 2, the case is not maintainable. O.P. 2 also denies  all  material allegations contained in the Complaint. The O.P. 2 has specifically stated that defense case which are quoted within the inverted comas:

“6. that a 65 years old diabetic female i.e., the wife of the petitioner was suffering from possible restrictive Cardiomyopathy and atrial fibrillation with high ventricular rate presented with drowsiness, shortness of breath and fall. Upon admission she was found to be drowsy and incoherent. Initial working diagnosis was Cerebrovascular accident. Initial C.T. Scan of Brain showed no significant abnormality and M.R.I was advised. But M.R.I. could not be done as the patient was restless. Later it was found that she was having bilateral lower lobe pneumonia (consolidation) patient was presistenly short of breath with episodes of normally in between. She was also having recurrent left ventricular failure and had to be put on non invasive ventilator support (B.I.P.A.P.).

7. That after a Couple of days on the morning of 23.05.2019 she suffered from sudden Cardiac arrest, type 2 respiratory failure & metabolic acidosis from which she was revived by CPR following ACIS Protocol and was put on invasive ventilator support and vesopressor support was initiated. On account of deterioration of patient the matter was discussed with relatives of the patient and referral to higher centre was considered. It is evident that the Patient deteriorated again enroute and ultimately expired.

8. That the deterioration of health which actually increase the shortness of breath was taken care of and the patient started feeling better. Antibiotic so were started as the HRCT thorax report showed bilateral lower lobe condition (Pneumonia). Furthermore, it is prerogative of the treating physician to decide what is best for his patient as medical opinion may vary.

9. That the statements by Physiotherapists sisters or bed attendants constitute the 'small talk' which is often to encourage the patient and make her feel at home, make her feel comfortable and ease up the anticipation. The actual decision to discharge the patient is not to be taken by anybody other than the treating Doctor particularly when the patient was having recurrent respiratory problem. It is customary, ethical and legally correct to discharge the Patient in a stable condition. Discharging the Patient when she is at risk of deteriorating again would have been unethical and illegal one. Same was communicated to the relatives of the Patient, but they failed to understand. The disease process does not listen to the whim of the Complainant. The Complainant was always at liberty to take the patient home against medical advice, but did not choose to do so.

10. The Patient was having pleural effusion and fluid was sent for testing. The Pathologist tests the body fluid and gave report. The fluid is drawn by the R.M.O. or any attending Doctor. The Pathologist never draws the fluid in this Hospital. The fluid is stored at Laboratory and tested part by part. If the amount of fluid is insufficient for testing the whole panel then more fluid may be withdrawn.

11. That on 23.05.2019 morning the Patient suffered from sudden Cardiac arrest. The Point of concern is very painful to the clinical practice. It is impossible to make the distraught relatives understand why and how the patient deteriorated, so suddenly even brushing the teeth. Now that is why the term "SUDDEN" Cardiac arrest. People (Particularly elderly) suffering from Pneumonia are known to have sudden Cardiac arrests and this is not the doing of the Doctor, but the doing of the disease. The Doctor did not negligently discharge the Patient before hand, but observant enough and the whole ICU team managed to resuscitate the Patient which means they started her heart once again and she had to be on ventilator as is always required Post Cardiac arrest resuscitation. It is not true that due to use of hard languages by the Doctor or nurse or others the condition of the Patient was deteriorated. Upon worsening of the condition of the Patient due to sudden Cardiac attack the consideration of referral was discussed and the complainant agreed.

12. It is also not true that the opinion of the Dr. Manas Ghosh Contradicts with the opinion of this Opposite Party. There was no difference of opinion between Dr. Ghosh and this Opposite Party regarding the case as is imagined by the Complainant.

13. That the Presence of Cardiologist is not mandatory in the event of Cardiac arrest. Cardiac arrest is diagnosed by any available Doctor be it Cardiologist, R.M.O. even by Paranedics.

14. That the complainants keeps reiterating the point which he failed to grasp even after the Doctor tried to make him understand by drawing diagrams of Human Cardiovascular System, when the R.M.O. earlier stated that it requires immense knowledge to understand what a Restrictive Cardiomyopathy is he got offended, when the consultant tried to explain the complex disease process then he thought the Doctor was wasting time.

15. That the Patient was undergoingchest Physiotherapy and respirometer was to be used for Physiotherapy but unfortunately the Patient suffered the Cardiac arrest on 23rd morning.

16. That when the Patient is feeling better at that point of time referring the Patient to higher centre is unnecessary harassment of Patient and relatives. Refusal should be logical and not the automatic assumption that Doctor endorses Criminal Practice. This Opposite Party was always serious towards the Patient. Initially the Patient was in I.C.U. the patient was getting better all by herself while this Opposite Party constantly tried for recovery of the Patient. This Opposite Party tried his best and he thought that the Patient has not fully recovered, so the Patient was not discharged.

17. This Opposite Party is an experienced Doctor having degree of M.B.B.S., M.D. (Internal Medicine). He had no negligence in treating the Patient.

18. That the Petition is liable to be rejected.”

On the basis of the complaint the following points are framed for proper adjudication of the case:

Points for decision

1. Is the Complainant consumer under the provision of the CP Act, 1986?

2. Have the OPs any deficiency in service, as alleged?

3. Is the Complainant entitled to get any relief, as prayed for?

Decision with Reasons:

Point no.1

 The Complainant is present. He submits before this Commission that he is a consumer to the O.P.s as per provisions of the Consumer Protection Act 1986. On this point Ld. Advocate for the O.P.s did not raise any objection. However, we peruse the complaint. The averments made in the complaint indicate that the Complainant is a consumer under the Consumer Protection Act, 1986 as well as Consumer Protection Act, 2019. The point number 1 is thus decided in favour of the Complainant.

Point Nos. 2 & 3

Both these points are taken up together for the sake of convenience and brevity of discussion.

The Complainant did not engage any lawyer to conduct his case. The Complainant himself conducted the case. The Complainant submits before this Commission that from the photocopy of treatment sheet dated 22.05.2019 on signature of Dr. Banerjee, it is seen that the word BIPAP SOS seem to be so unusually deep and the date 22.05.2019 appear to be overwritten. In this regard it can very well be assumed that as on 23.05.2019, in the counseling room on being asked Dr Banerjee appeared to be fumbling as to the use of BIPAP support to the patient definitely to plug the loopholes subsequently the same was done. Had the original document been placed, the same would have been distinctly revealed and for that reason the original has been withheld from being submitted, lest their unbecoming act is divulged. (Para-24 of the written notes of the argument)

  Again from the photocopy of another treatmentsheet dated 22.05.2019 it is evident that, fresh advice was given and 14 Nos of medicines were prescribed but whether those were applied to the patient or not, there was nothing to show within the four corners of any of the documents, which was very much expected to be maintained by the attending nurse. (Para-25 of the written notes of the argument)

  From the reverse of photocopy of treatment sheet dated 23.05.2019/ 6.45 a.m. it however appears that the patient suffered sudden cardiac arrest and resuscitation started, details of which seem to have been written by one attending physician (obviously not by Dr. Banerjee), because long after, Dr. Banerjee came. It is surprising to note that the said attending physician before Dr. Banerjee came, told that the patient suffered " massive heart attack" and so in that case how it was possible for the attending Doctor to write "Sudden cardiac arrest ". So it cannot be gainsaid that after consultation with Dr. Banerjee, the attending Doctor wrote the same for the reasons best known to them. In this regard it is significant to note that in the counseling room, Dr Banerjee admitted that the attending Dr. wrongly told that it was a case of massive heart attack but of massive cardiac arrest. Being a layman, the complainant is not expected to know if the procedure of treatment is different in the different field as stated above. Such scenario also depicts the clear stoic attitude on the part of the authority concerned. (Para-26 of the written notes of the argument)

  Again from the treatment sheet dated 23.05.2019 (M), it however appears that Dr. Banerjee seems to have prescribed certain medicines under his signature. So what prompted Dr. Banerjee to refer to Dr. Manas Ghosh, and that too over telephone, without knowing the condition of the patient? It is the case of the complainant that for his mental satisfaction, on request of the complainant, Dr. M. Ghosh visited the patient and gave his opinion, and such endorsement in the treatment sheet is nothing but patch- work of afterthought. However in the answer to the questionnaire, Dr Banerjee has stated that for the best of patients "many a time we consult our esteemed colleagues in the hope to get better outcome ". But in the instant case there was no reason whatsoever for Dr. Banerjee, who is an MBBS, MD (internal medicine) to consult Dr. Ghosh of his own accord, because it is the definite case of the complainant that Dr. Ghosh opined contrary to the opinion of Dr. Banerjee that in the event of the patient being excited there was every chance of condition of the patient being deteriorated, to which Dr. Banerjee denied. Therefore, above statement of Dr Banerjee is no less than taking the refuge of blatant lie. (Para-27 of the written notes of the argument)

  From two other documents, under the caption "Regular Prescriptions (circle time required) ( Date and month)" it is no evident that after the date 14/5, date 19/5 has been given. Again, thereafter date 14/5 is noted. Thereafter date 23/5 is seen to have been put. Again thereafter date 19/5 is put, and in this way several inconsistent dates appear to have been put therein. Certain dates are also seen overwritten. Though there are systems of Doctor's signature therein, but none of the doctors signed. Also very surprising to mention. that two dates 23/4, 24/4 have been given though the patient was admitted in the Nursing Home on 14.05.2019. Again in advance over enthusiastically, date 24/5 appears to have been put, though the patient was released from the nursing home at about 11.00P.M of 23.05.2019. From the document of intake and output chart dated 22.05.2019 at 9P.M,10PM and 6 A.M medicines are seen to be applied to the patient. It is surprising to note as to how on the same date after 9 P.M again 6 a.m. comes. Such scenario also depicts perfunctory work on the part of the nursing Home Authority and there cannot be any shred of doubt that after receiving the notice of the instant case, these documents have been created hastily, which is also the example of deficiency in service on the part of concerned authority. (Para-28 of the written notes of the argument)

  It is further evident from daily observation chart dated 22.05.2019 and 23.05.2019 that on 22.05.2019, BIPAP support was given at 10P.M, 11P.M, 12 and on 23.05.2019 at 1.00 AM, 3.00AM, 5.00 A.M & 7.00 A.M, the same was also given. From the treatment sheet dated 23.05.2019 at 6.45 A.M, it is seen that due to sudden cardiac arrest the patient became unconscious. If it be so, it is quite unthinkable that at 7.00 A.M, BIPAP support was given. More so, Dr Banerjee was not sure if on those dates and times BIPAP support was given or not, which has been stated in the petition of complaint (subsequently the same being treated as evidence), and it remains uncracked. It is further evident from para 12 of the complaint, that when the complainant along with his daughter entered in the H.D.U, in the very morning of the fateful day, one of the attendants (Aayya) for the reason best known to her, of her own accord, told that at night BIPAP support was given and in the very morning the patient brushed teeth, etc. The OP2 (Dr Banerjee in his W/V at para 11 stated that how the patient deteriorated so suddenly even brushing the teeth and with this Dr. Banerjee tried to establish the patient being attacked with SUDDEN Cardiac arrest. Such statement in the W/V, in no way supports that in view of entire above conditions, the patient at the stage of BIPAP Support and at unconscious stage, was able to brush her teeth etc. Therefore it can be conclusively inferred the existence of fishy smell and definitely in order to conceal something the said Aayya was tutored to tell such matter to the patient party, which appears to be more strengthened from the corroborative documents of daily observation charts and other purported perfunctory acts of putting inconsistent dates in other documents, which in details no have been discussed supra. (Para-29 of the written notes of the argument)

  The complainant on 23.05.2019, by writing appears to have prayed before the Nursing Home Authority, to form medical board for better treatment of the patient, who was under ventilation support. But no action whatsoever was taken on the basis of the written prayer. Nor was the complainant informed anything, for the reason best known to them. It is also not understood as to why the respirometer, which was returned to the complainant, was not used. (Para-30 of the written notes of the argument)

  At the very pick hours at about 11.00 P.M on 23.05.2019 when the patient was going to be released, Nursing Home Authority demanded Rs- 200/ on behalf of consultant MAMPI PRAPANIK (DIETCIAN) (Annexure -E) band Rs 700/- on behalf of consultant Dipayan Tarafdar ( Annexure - D), which were duly paid, though both of their names do not reflect in the Final Bill ( Annexure- E). Such act on the part of the Nursing Home Authority is another example of earning unfair money. (Para-31 of the written notes of the argument)

  It is true that it is the prerogative of the attending Physician as to when the patient would be released / discharged, but it cannot be gainsaid that it was in the knowledge of Dr Banerjee ( OP2) that the OP1 Nursing Home was not equipped with modern facility of treatment of such type of patient specially when it is evident from investigation slip Dated 15.05.2019 ( Annexure - I ), patient was advised MRI of brain, and that too the same was to have been done by bringing the patient from the OP- 1 Nursing Home to some other clinical Centre endangering the life of the patient which was proved for not being possible in doing MRI due to restless condition of the patient. More so, it is the specific case of the complainant, that as water accumulated in the Lung of the patient ,certain amount of fluid was taken out twice, the first attempt being not fulfilled due to absence of the pathologist which was given to understand by Dr. Banerjee. Why such abortive attempt was made in taking fluid,there is no cogent explanation,though Dr. Banerjee in para 10 of W/V tried to cover up their failure by stating that if the amount of fluid was insufficient for testing the whole panel then more fluid might be withdrawn. If this be so, why Dr. Banerjee earlier told that due to absence of pathologist fluid was taken twice, first attempt being not fulfilled .So Dr Banerjee (OP-2) ought to have been more cautious for early release/ discharge of the patient for better investigation and treatment outside instead of waiting for further improvement of the patient in such lethargic attitude on the part of the Nursing Home authority. It is not understood as to why in the eleventh hour when the patient was under ventilation, with such critical condition Dr. Banerjee advised to refer the patient to MEDICA Superspeciality Hospital, Kolkata ? (Para-32 of the written notes of the argument)

  Again it is significant to note that for the sake of business it was not mentioned in the display Board that the cardiologist used to come only once in a month and not every day, which was admitted by the Nursing home Manager. Sometimes miracle is likely to happen and had the patient been attended by any efficient cardiologist, the condition of the patient would have been otherwise. This type of practice on the part of Nursing home Authority is the naked illustration of fraud practice upon the public at large. (Para-33 of the written notes of the argument)

  Therefore from the aforesaid discussion based upon the documents, coming out from the custody of OP1 and evidence tendered by both the complainant and OP No -2, there cannot be any shred of doubt that OP1 Nursing Home Authority adopted unfair trade practice while the OP2 (Dr Banerjee) shut his luminary eyes in the discharge of his pious duties upon the patient, and for that reason, neither of the OPs can escape from their responsibilities, and obviously they are liable for pushing the patient into the death door, causing lifelong mental trauma upon the complainant who is no less than the unfortunate husband of the deceased. (Para-34 of the written notes of the argument)

  So though monetary compensation is not the measuring rod to assuage the pain of such mental trauma of the complainant / husband, it is the humble prayer of the complainant before the Hon'ble Commission to pass such exemplary order, by which the OP1 Nursing Home Authority and OP2 Dr Aurobinda Banerjee cannot dare to adopt such unhealthy in future, with further order of wide publication in proper places and for compensation which the Hon’ble Commission deems fit necessary, under the provisions of Section 39 of Consumer Protection Act 2019. Submitted for kind perusal of the Hon’ble Commission. (Para-35 of the written notes of the argument)

Arguments advanced on behalf of the Opposite Parties.

Ld. Advocate for the O.P.s submits that a 65 years old diabetic female i.e., the wife of the Petitioner suffering from possible restrictive Cardiomyopathy and atrial fibrillation with high ventricular rate presented with drowsiness, shortness of breath and fall. Upon admission she was found to be drowsy and incoherent. Initial working diagnosis was Cerebrovascular accident. Initial C.T. Scan of Brain showed no significant abnormality and M.R.I. was advised. But M.R.I. could not be done as the patient was restless. Later it was found that she was having bilateral lower lobe pneumonia (consolidation) patient was presistenly short of breath with episodes of normally in between. She was also having recurrent left ventricular failure and had to be put on non invasive ventilator support (B.I.P.A.P.).

That after a Couple of days on the morning of 23.05.2019 she suffered from sudden Cardiac arrest, type 2 respiratory failure & metabolic acidosis from which she was revived by CPR following ACIS Protocol and was put on invasive ventilator support and vesopressor support was initiated. On account of deterioration of patient the matter was discussed with relatives of the patient and referral to higher centre was considered. It is evident that the Patient deteriorated again enroute and ultimately expired.

That the deterioration of health which actually increases the shortness of breath was taken care of and the patient started feeling better. Antibiotic so were started as the HRCT thorax report showed bilateral lower lobe condition (Pneumonia). Furthermore, it is prerogative of the treating physician to decide what is best for his patient as medical opinion may vary.

That the statements by Physiotherapists sisters or bed attendants constitute the 'small talk' which is often to encourage the patient and make her feel at home, make her feel comfortable and ease up the anticipation. The actual decision to discharge the patient is not to be taken by anybody other than the treating Doctor particularly when the patient was having recurrent respiratory problem. It is customary, ethical and legally correct to discharge the Patient in a stable condition. Discharging the Patient when she is at risk of deteriorating again would have been unethical and illegal one. Same was communicated to the relatives of the Patient, but they failed to understand. The disease process does not listen to the whim of the Complainant. The Complainant was always at liberty to take the patient home against medical advise, but did not choose to do so.

The Patient was having pleural effusion and fluid was sent for testing. The Pathologist tests the body fluid and gives report. The fluid is drawn by the R.M.O. or any attending Doctor. The Pathologist never draws the fluid in this Hospital. The fluid is stored at Laboratory and tested part by part. If the amount of fluid is insufficient for testing the whole panel then more fluid may be withdrawn.

That on 23.05.2019 morning the Patient suffered from sudden Cardiac arrest. The Point of concern is very painful to the clinical practice. It is impossible to make the distraught relatives understand why and how the patient deteriorated, so suddenly even brushing the teeth. Now that is why the term "SUDDEN" Cardiac arrest. People (Particularly elderly) suffering from Pneumonia are known to have sudden Cardiac arrests and this is not the doing of the Doctor, but the doing of the disease. The Doctor did not negligently discharge the Patient before hand, but observant enough and the whole ICU team managed to resuscitate the Patient which means they started her heart once again and she had to be on ventilator as is always required Post Cardiac arrest resuscitation. It is not true that due to use of hard languages by the Doctor or nurse or others the condition of the Patient was deteriorated. Upon worsening of the condition of the Patient due to sudden Cardiac attack the consideration of referral was discussed and the complainant agreed.

That the Presence of Cardiologist is not mandatory in the event of Cardiac arrest. Cardiac arrest is diagnosed by any available Doctor be it Cardiologist, R.M.O. even by Paranedics.

That the complainants keeps reiterating the point which he failed to grasp even after the Doctor tried to make him understand by drawing diagrams of Human Cardiovascular System, when the R.M.O. earlier stated that it requires immense knowledge to understand what a Restrictive Cardiomyopathy is he got offended, when the consultant tried to explain the complex disease process then he thought the Doctor was wasting time.

That the Patient was undergoing chest Physiotherapy and respirometer was to be used for Physiotherapy but unfortunately the Patient suffered the Cardiac arrest on 23rd morning.

That when the Patient is feeling better at that point of time referring the Patient to higher centre is unnecessary harassment of Patient and relatives. Refusal should be logical and not the automatic assumption that Doctor endorses Criminal Practice. This Opposite Party was always serious towards the Patient. Initially the Patient was in I.C.U. the patient was getting better all by herself while this Opposite Party constantly tried for recovery of the Patient. This Opposite Party tried his best and he thought that the Patient has not fully recovered, so the Patient was not discharged.

This Opposite Party is an experienced Doctor having degree of M.B.B.S., M.D. (Internal Medicine). He had no negligence in treating the Patient.

MASSIVE Heart Attack is a descriptive term, not a scientific one. It is completely different from Cardiac Arrest. The Patient can have a perfectly good heart, yet still get Cardiac Arrest. Similarly a Cardiac or Heart Patient can get a Cardiac Arrest. So Heart Attack (whether massive or minor) means that the Patient's Coronary Arteries are blocked by a thrombus and he/she cannot get enough blood to his/her heart. That's called a Heart Attack. Whereas, if the heart stops because the blood lactate level is high, if the blood carbon di-oxide level is high, if the blood potassium levels are high, if the Patient has toxins liberated in the blood by an infection with bacteria, it is called Cardiac Arrest. Heart Attack means the heart could still be beating, just that any one or more of it's arteries are blocked by a blood clot, and the patient typically get the symptoms of chest pain or shortness of breath. He/She may suffer from Cardiac Arrest or may not. In short Heart Attack is primarily heart problem, heart does not essentially need to stop.

Cardiac Arrest: Heart stops does not necessarily mean a primary Heart problem.

In this case, though the Patient had heart disease, the Cardiac Arrest was due to high level of carbon-dioxide in blood, owing to her respiratory infection.

There is no useful term as severe Cardiac Arrest, every Cardiac Arrest is a severely important and emergency situation. The Heart stopped, we need to start it or within three minutes, the Patient does in Brain Death. Cardiac Arrest refers to stoppage of Heart Bet or Heart Function.

A human being can have Cardiac Arrest at anytime, even while on a pavement, where there is no Doctor at hand, much less an experienced Doctor or a Cardiologist for that matter, the Patient can have a Cardiac Arrest any time in a Hospital, where a senior Doctor might not be present in that particular time, because the Doctor has to attend to several Patients. And this is the problem of the world, not Berhampore, so the World Medical Authorities came up with a solution, a universal protocol to handle such situations, which is called the ACLS Protocol (Advanced Cardiac Life Support: ACLS). Our resident Medical Officer (RMO) in short perfectly qualified to handle emergencies like cardiac arrest, (that's why the Government of India and West Bengal conferred them with their MBBS Degrees), they know and employ the ACLS Protocol every time any Patient goes to Cardiac Arrest, if the complainants are not happy with the ACLS Protocol, they can take up the matter with Governments or International Medical Regulatory Authorities, just a humble reminder, the ACLS Protocol started the Patient's heart once again. She was put on ventilator, but she was still alive. She was brought back from the dead by our RMOS. As the ACLS Protocol is standardised, it does not matter whether the consultant administers it or not. The Doctor has done the same thing as per protocol. The method is the only thing that is important.

The Doctor never said that he would not refer the Patient outside for better treatment, the Patient’s relatives thought that the Patient was fine and the authority just extorting money from them  by keeping the Patient in ICU and HDU.

The patient suffered a Cardiac Arrest, she was an important Patient to us to begin with. The doctor and his team after much brainstorming thought that it is better for the Patient to refer her with adequate care in a higher centre because she had a 'sudden Cardiac Arrest', sudden being the keyword. Doctor thought that probably with care in better facilities, bigger and more well equipped hospitals, may be they would be able to help the Patient again keeping the best interest of the Patient in mind. Now, the vital signs of the Patient were within acceptable range when we referred like the blood pressure, pulse, oxygen saturation etc., we often refer these patients to higher centre, particularly in a Cardiac Ambulance in the hope that the facilities provided with the Cardiac Ambulance will maintain the Patient's vital signs within a stable range. A Cardiac Ambulance is considered a mobile ICU Unit. The Patient probably suffered another Cardiac Arrest en route. The chances of having repeated Cardiac Arrests are high after the first Cardiac Arrest. If we did not refer the Patient, she could have/had that Cardiac Arrest inside the Hospital. The outcome might have been the same. It is customary to refer very sick Patients in a Cardiac Ambulance to higher centre. The practice of referring sick patients in Cardiac Ambulance is perfectly within the purview of the law.

Sudden Cardiac Arrest is a phenomenon which is abrupt or sudden in nature. The Patient was brushing her teeth before the Cardiac Arrest not after that. What is the question here?

The respirometer was ordered for the Patient to help her with pulmonary (Lungs) rehabilitation, unfortunately she suffered a Cardiac Arrest before she could use the respirometer. Why the respirometer was not returned to the Pharmacy and money refunded to the Patient's relatives is a question that can be answered by the administration of the Hospital.

That according to the opinion of the doctor the patient should not be discharged at the said period. If the patient party had contrary view then they had the option to discharge the petitioner on their own risk. The opposite parties i.e. the doctor and Hospital exercised sufficient care in treating the patient in all circumstances. Death may occur. It was on an unfortunate incident. There was no negligence or unfair trade practice on the part of the opposite party or there are no material on record or there are no proof by which the Ld. Forum may came to a conclusion that the death is due to negligence on the part of the opposite parties.

The term negligence had no defined boundaries but according to Halsbury's Laws of England, 4th Edn, Vol-26, Page 17-18 the definition of negligence os as under.

Vide - 1) Kusum Sharma & others Versus Batra Hospital & Medical Research Centre (2010) 3 Sec 480.

2) Dr. Harish Kumar Khurana Versus Jogider Singh & others (2021) 10 Sec 291.

3) Civil Appeal no. 6507 of 2009 Chanda Rani Akhori Versus Dr. MA Methusethupathi & others.

The complaint in para 28 of the written argument that in the document under the caption "Regular Prescription" it is evident that after that date 14/5 the date 19/1 has been written then again 14/5 is written. As per the complaint it is surprising. But it is very regular and scientific.

For example:

In page number 2 - Inj morotol (ig) was prescribed on 14/05/2019. In the R.P. (Circle time required) in 4th item (Regular Prescription).

Inj Ixta/Inj Merotral has been written. In it's bottom portion the date "14/5" denotes the date of prescribing of such medicine. On the right side of "Inj Merotal" the dates 14/5, 15/5, 16/5, 17/5, 18/5, 19/5, 20/5, 21/5 are written. In the bottom portions of such dates the initial of the Nursing stuffs is reflected which means that injection has been administrated upon the patient by mentioning the time also.

In page - 10 Again Inj Merotrol has been written. In its bottom portion "14/5" has been written which denotes that the Medicine was 1st time prescribed on 14/5.

In page - 10 the next medicine has been written as "Forcan". In its bottom portion "19/5" has been written, which means that the medicine was prescribed on 19/5 for the 1st time. In page 5 it is proved that the medicine "Forcan" has been prescribed on 19/5 for 1st time.

That if there is any date is written as 23/4, 24/4 that is simple mistake it would be 23/5, 24/5. Question would be why 24/5 has been written when she has been referring Calcutta on 23/5. In fact in "Regular Prescription" the advance dates used to be written for convenience. It is quite natural.

So the petition filed by the complainant is liable to be rejected.

Keeping in mind the Complaint, Written Version, Evidence and Arguments advanced by the parties the instant case is required to be decided.

In Bolam v Friern Hospital Management Committee,⁴ Mc Nair J. Directed the jury in these terms:

A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art ... Putting it other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.

Thus, the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.⁵ A doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable care. A doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment.⁶ The onus of proving negligence and resultant deficiency in service is on the complainant.⁷

In the instant case no doctor has been examined on behalf of the Complainant to prove the negligence as alleged. The facts and circumstances suggest that the wife of the Complainant was treated by doctors having special skill and knowledge to that effect. The allegations made by the Complainant is in the form of blame. Considering the facts and circumstances of the case, we can, at best say that the conduct of the O.P. 2 is blameable but this blameable conduct of the O.P. 2 does not tantamount to actionable negligence in the absence of any cogent and reliable evidence to that effect, particularly in the absence of any corroborative medical evidence to that effect.

Now, we like to discuss the allegations made by the Complainant against the O.P. 1 i.e., Monmohini Health Care Pvt Ltd.

The Complainant submits before this Commission that they were compelled to purchase respirometer but it was not understood as to why that respirometer which was returned to the Complainant was not used.

In this respect the Ld. Advocate for the O.P. 2 submits in his written argument that the respirometer was ordered for the patient to help her with pulmonary (Lungs) rehabilitation, unfortunately she suffered a cardiac arrest before she could use the respirometer. Why the respirometer was not returned to pharmacy and money was not refunded to the patient’s relatives is a question that can be answered by the administration of the hospital.

The point to be noted is that Ld. Advocate for the O.P.s is arguing the case for both the O.P.s. So, it is clear that O.P. 2 is not in a position to reply the said question. The point to be noted is that though the Complainant purchased the respirometer but it remained in the custody of the hospital authority as the wife of the Complainant was an in-patient of the O.P. 1 i.e., Monmohini Health Care.  This fact is obviously tantamount to deficiency of service.

It is alleged by the Complainant that at very pick hours at about 11 p.m. on 23.05.2019 when the patient was going to be released nursing home authority demanded Rs. 200/- on behalf of consultant Mamp Prapanik (dietician) (Annexure E) and Rs. 700/- on behalf of consultant Dipayan Tarafdar (Annexure-D) which was duly paid but their names do not reflect in the final bill (Annexure-C). Such act on the part of the nursing home authority is another example of earning unfair money.

In this respect Ld. Advocate for the O.P.s is totally silent.

So, it is admitted position that the act on the part of Nursing Home Authority is tantamount to deficiency of service and unfair trade practice.

It is alleged by the Complainant that it is significant to note that for the sake of business it was not mentioned in the display board that the cardiologist used to come only once in a month and not every day which was admitted by the Nursing Home Manager. Sometimes, miracle is likely to happen and had the patient been attended by any efficient cardiologist, the condition of the patient would have been otherwise. This type of practice on the part of the Nursing Home Authority is the naked illustration of fraud practice upon the public at large.

In this respect Ld. Advocate for the O.P. submits in his Written Argument, “ that the presence of Cardiologist is not mandatory in the event of Cardiac arrest. Cardiac arrest is diagnosed by any available doctor be it Cardiologist, R.M.O. even by Paranedics.”

Keeping in mind the submissions advanced by both the parties we peruse the materials on record. Here we find that Ld. Advocate for the O.P. 1 did not make any specific denial of the allegation of the Complainant in this respect. It is the established principle of law that the denial must be specific and not evasive. So, the allegation made by the Complainant in this behalf tantamounts to admission, particularly when we find that the wife of the Complainant was admitted to the Nursing Home for the period from 14.05.2019 to 24.05.2019 and during the said period the Cardiologist never attended the patient concerned.

The instant case is civil in nature. So, the standard of proof is the preponderance of probability.

In view of the discussions made above we are of the view that this type of practice on the part of the Nursing Home Authority is the naked illustration of fraud practice upon the public at large and as such the act of the Hospital Authority is tantamount to deficiency of service and unfair trade practice.

It is admitted position that the Complainant has already received the costs of medical expenses of his wife from the Government of West Bengal after depositing the medical reimbursement bill alongwith relevant documents before the Ld. District Judge, Murshidabad.  So, nothing is awarded to the Complainant as damages regarding medical treatment. It is also found that the Complainant himself is conducting the case. So, litigation cost is not awarded to the Complainant.

But, we are of the view that the Complainant is entitled to get Rs. 2,00,000/- (two lakh) as compensation for mental pain and agony from O.P. 1.

Reasons for delay

The Case was filed on 29.08.2019 and admitted on 04.09.2019. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act, 1986. Delay in disposal of the case has also been explained in the day to day orders.

In the result, the Consumer case is partly allowed.

 Fees paid are correct. Hence, it is

Ordered

that the complaint Case No. CC/124/2019 be and the same is dismissed on contest against the O.P. 2 and allowed on contest against O.P. 1 but under the circumstances without any order as to costs.  

O.P. 1 is directed to pay Rs. 2,00,000/- (two lakh) to the Complainant as compensation for mental pain and agony within 60 days from the date of this order in default the said amount of Rs. 2,00,000/- (two lakh) will carry interest @ of 10 per cent per annum with effect on and from 21.02.2024.

O.P. 1 is further directed not to mislead the public at large in displaying board of cardiologist which is the nonexistent facility in reality.

Copy of this order be sent to C.M.O.H. Murshidabad to take necessary action so that the O.P. 1 (Monmohini Health Care Pvt Ltd.) cannot mislead the public at large in displaying the board of cardiologist which is the nonexistent facility in reality.

Let plain copy of this order  be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand  /by post under proper acknowledgment as per rules, for information and necessary action.

The Final Order will also be available in the following Website:

    confonet.nic.in

 Dictated & corrected by me.

            President

               Member                                                                                                                   President.