HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The instant complaint case was filed under section 18 read with section 12 of the Consumer Protection Act, 1986, ( in short, ‘the Act’) by the complainant Sri Niladri Sekhar Bose and Smt. Shaonli Bose for the alleged medical negligence of treating Nursing Home and unfair trade practice and exploitation by the opposite party Nursing Home taking advantage of the sickness of the younger son of the complainants.

2. The complainants Niladri Sekhar Bose and Shaonli Bose have filed the instant complaint case praying for the following reliefs :-

“i) Pass an order directing the opposite party to pay a sum of Rs.25,96,666/- towards compensation for mental agony, harassment and trauma for the acts conducted by the opposite party amounts to gross deficiency in service under Consumer Protection Act, 1986;

ii) Pass such order or orders as Your Honour may deem fit and proper.”

3. The brief facts of the case are that the younger son of the complainants, Shanoy Bose, a one year old child suffered very high fever sometime on or about 7^th day of August, 2014 and for non remission of fever over time, the complainants got their son admitted to the opposite party Nursing Home. The younger son of the complainants was admitted to the said Nursing Home namely Columbia Asia Nursing Home Pvt. Ltd. on 09.08.2014 at around 9.00 p.m. when the son of the complainants was kept under the observation for diagnosis under Dr. Rajesh Kumar Goel who is pediatrician in the said Nursing Home. The younger son of the complainants being one year old was kept in a cabin with his mother being the complainant No. 2 upon insistence of the complainants. The complainant No. 2 had been present throughout the stay of their younger child / son in the said Nursing Home. The diagnosis of the child had never been upon thorough check up and the Doctor of the opposite party had been playing a blind game using the child for experiment without administering any proper medicine to which the child could respond for recovery. The opposite party Nursing Home had conducted numerous tests upon the son of the complainants under the supervision of the said Doctor Rajesh Kumar Goel and one Dr. Debashish Chatterjee who is the consultant pediatrician in the said Nursing Home which bore only one constructive finding and diagnosed the child with acute gastroenteritis whereby the baby was administered IVF, injection Catriaxone, syrup Calpol, injection Emeset Pan etc.

4. Further case of the complainant are that the discharge summary of the said opposite party Nursing Home suggested that at the time of discharge, fever of the child gradually subsided and his stool frequently having decreased. The child was in immense pain and could not consume any food coupled with high fever. Even in this condition the child of the complainants was discharged upon the attending Doctor’s advice of the said Nursing Home holding the child to have suffered from acute gastroenteritis.

5. Further case of the complainants are that the opposite party Nursing Home conducted various tests and prepared various laboratory reports which does not suggest any health hazards of the child apart from only concerned being loose stool, vomiting and fever as is reflected in the progress note prepared from time to time by the opposite party Nursing Home. The opposite party Nursing Home in its progress note dated 13.08.2014 found that the baby on examination was lethargic and febrile.

6. Further case of the complainants is that the opposite party Nursing Home has raised extensive and itemized bill upon the complainant No. 1 on and from 19^th August, 2014 being the date of admission of the child till 16^th August, 2014 when the child was discharged. The opposite party Nursing Home has also raised bills for various visiting pediatricians for consultation being Dr. Himanish Roy, Dr. Kamalika Das, Smt. Smarajit Maity and specialized consultation charges to Dr. Anindya Chattopadhyay and Dr. Rajesh Kumar Goel without any intimation and / or consultation with the complainants.

7. Further case of the complainants are that the opposite party Nursing Home has also raised bills Under the Head of room charges, pharmacy, multiple unit, laboratory charges, imaging charges, administration charges etc. along with medicinal charges for the medicines administered to the baby.

8. Further case of the complainants are that the complainants were never satisfied or impressed with the service provided by the opposite party Nursing Home and had always enquired as to the disease of their son which was being diagnosed by the opposite party Nursing Home. But neither the administration nor the Doctors of the said Nursing Home were ever able to give any convincing answer to the queries of the complainants and diagnosed the child with fever, loose stool and gastroenteritis.

9. Further case of the complainants are that on 16^th August, 2014, the complainants were surprised to know that their child was being discharged from the Nursing Home for being held to be unhealthy medical condition and based on certain reported observation of the Nursing Home that the child was recuperating with stable medical condition whereas the fact was that the child was still suffering from high fever and vomiting tendency and the complainants being dissatisfied with the health condition of the child upon being discharged at 2.00 p.m. in the afternoon had the child admitted to Sri Aurobindo Seva Kendra at 1H, Gariahat Road (South), Jodhpur Park, Kolkata – 700 068 at around 5.30 p.m. in the afternoon under the supervision and care of Dr. Apurba Kumar Ghosh.

10. Further case of the complainants are that at Sri Aurobindo Seva Kendra, the child of the complainants for the first time was detected to be infected with Kawasaki virus which attacks the children below the age of five years. The clear symptoms of Kawasaki virus are that of high fever and vomiting tendency. Such tests on the child were conducted in the said hospital at the behest of the said Dr. Apurba Kumar Ghosh within a period of one day whereby the child was detected with Kawasaki virus. The child of the complainants was diagnosed with the said tests and upon being administered with proper medicines showed signs of improvement in the health condition and swift recovery process.

11. Further case of the complainants are that the child of the complainants was discharged from the said Sri Aurobindo Seva Kendra on 13^th August, 2014 having completely recovered from the said disease with medical advice to follow up health condition of the child and cardiac check up by qualified pediatricians.

12. Further case of the complainants are that the complainants upon the advice and prescription of Dr. Apurba Kumar Ghosh followed the child with a check up and thereafter consulted Dr. Dhritobroto Das, pediatrician – cardiologist who had confirmed that the child was recuperating from Kawasaki virus and had conducted various cardiac tests to determine his health condition. The act of the opposite party Nursing Home reflects gross deficiency in service in wrongful diagnosis, maltreatment and deliberate detention of the patient and administering incorrect medicines under the wrong medical advice which has caused tremendous mental anxiety, harassment, trauma and agony to the complainants.

13. Further case of the complainants are that the complainant No. 1 had made payments to the tune of Rs.73,100/- (Rupees seventy three thousand and one hundred) only as the bill paid to the opposite party Nursing Home for the period on and from 9^th August, 2014 till 16^th August, 2014. The complainant No. 1 also paid Rs.23,566/- (Rupees twenty three thousand five hundred and sixty six) only to Sri Aurobindo Seva Kendra on and from 16^th August, 2014 to 23^rd August, 2014 towards medical expenses.

14. Further case of the complainants are that the disease Kawasaki virus can be fatal disease capable of causing life threat to a child as young as one year old and Doctors at the said Sri Aurobindo Seva Kendra were sought to find that improper diagnosis was undertaken at the Columbia Asia Hospital which caused the life threat to the child of the complainants.

15. Further case of the complainants are that the acts of the opposite party Nursing Home have caused an irreparable loss and prejudice to the complainants resulting in unbearable mental agony and trauma at the hands of the opposite party Nursing Home amounting to gross deficiency in service  of the opposite party Nursing Home. Hence, the complainants have filed this complaint case.  The opposite party Nursing Home Navketan Nursing Home Pvt. Ltd. carrying on business under the name and style of Columbia Asia Hospital. The opposite party No. 1 Nursing Home, Navketan Nursing Home Pvt. Ltd. entered appearance in this case and was contesting the case by filing written version denying the material allegations in the petition of complaint.

16. Their specific case is that the patient Shanoy Bose attended to the emergency department of the opposite party Nursing Home on 9^th August, 2014 at about 9.30 p.m. The said patient was assessed by the emergency medical officer and advised admission under the care of Dr. Rajesh Kumar Goel, consultant pediatrician for further management as he was on call pediatrician on that day. The said consultant was informed immediately of the admission. The resident Doctors and the consultant found that the baby presented with history of fever for 4-5 days with diarrhoea and vomiting and urine not passed in last six hours. The baby was lethargic, dehydration was severe, eyes were sunken, abdomen was distended and the spleen was just palpable. The baby had a temperature of 101⁰ F and heart rate was 130 beats / minute.

17. Further case of the opposite party Nursing Home are that the patient was treated with intravenous saline injection followed by half ns @ 75 ml/hr. The patient was also given injection Ceftriaxone 100 mg IV, injection Metrogyl 100 mg., 100 mg 8 hourly oral, syrup Calpol 7 ml, stat and S.O.S., Emeset 2 mg and injection Pan 10 mg.

18. Further case of the opposite party Nursing Home are that the patient’s blood was sent for CBC, CRP, Sodium, Potassium, Creatinine, MP slide and dual AG, Dengue serology, blood C & S, urine RE/ ME and C & S, typhi dot to rule out the cause of fever with loose motion along with dehydration.

19. Further case of the opposite party Nursing Home are that the X ray of abdomen AP erect and AP supine of the baby / child was done on 10.08.2014 and the findings of the X ray of abdomen erect view was free air – nil, bowel gas pattern : stomach, small and large bowel loops are dilated, free fluid – nil, urinary bladder – no radio – opaque calculi, spine normal PS as shadows – normal sacro-iliac joints – normal, hip joint – normal, visualised bony pelvis – normal, visualised lung bases – normal. Impression dilated stomach, small & large bowel loops.

20.  Further case of the opposite party Nursing Home are that the U.S.G. of the whole abdomen was done on 11.08.2014, the impression of the U.S.G. was that the one year old male child with fever, vomiting and foul smelling stools, was suffering from enterocolitis. Enterocolitis or Colo-enteritis is an inflammation of the digestive tract, involving enteritis of the small intestine and colitis of the colon might be caused by various infections, with bacteria, viruses, fungi, parasites, or other causes. Common clinical manifestations of enterocolitis are frequent diarrheal defecations, with or without nausea, vomiting, abdominal pain, fever, chills, alteration of general condition. General manifestations are given by the dissemination of the infectious agent or its toxins throughout the body, or most frequently by significant losses of water and minerals, the consequence of diarrhoea and vomiting. Accordingly the patient was treated conservatively with antibiotics to which the patient was responding positively.

21. Further case of the opposite party Nursing Home are that the patient had redness of tongue and lips. The consultant Doctor thought of Kawasaki disease which is an autoimmune disease in which the medium-sized blood vessels throughout the body become inflamed. It is largely seen in children under five years of age.  It affects many organ systems, mainly those including the blood vessels, skin, mucous membranes, and lymph nodes. Its rarest but most serious effect is on the heart, where it can cause fatal coronary artery aneurysms in untreated children and to rule out any complication the OP did echocardiogram on 11.08.2015 and platelet count but those reports were within normal limit.

22. Further case of the opposite party Nursing Home are that since the patient was responding to the ongoing treatment with antibiotics and other supportive measurement the same was followed. However, on request of the father of the patient the opposite party Nursing Home had to discharge of the patient on 16^th August, 2014 with follow up request after seven days or as and when necessary with diagnosis of  acute gastroenteritis at present.

23. Further case of the opposite party Nursing Home is that the patient did not turn up thereafter.

24. Further case of the opposite party Nursing Home are that the consultant Doctors had recommended diagnostic tests based on symptom; however, the test results were within normal range. The condition as was mentioned in the discharge summary was the actual condition of the patient. The allegations regarding the condition of the patient as stated in the complaint petition are an afterthought and made only to draw sympathy of this Commission.

25. Further case of the opposite party Nursing Home are that the opposite party had suggested tests based on prudent medical science with an object of identifying the underlying cause of the complications which the patient was suffering from. The opposite party had raised its bill in detail wherein mentioning of every items were monitored and billed and thereby removing any doubt of any excess bill.

26. Further case of the opposite party Nursing Home are that as the condition of the patient was stable, the consultants on several requests of the patient’s father did release the patient.

27. Further case of the opposite party Nursing Home are that the opposite party Nursing Home was also suspicious of the patient being suffering from Kawasaki syndrome as the tongue was reddish. The confirmative test done at the Nursing Home did not suggest the syndrome and, as such, the same was ruled out.

28. Further case of the opposite party Nursing Home are that Kawasaki syndrome is not a virus attack and is not a disease but a syndrome the cause of which is unknown.  The treatment is generally based on immunoglobin and aspirin.

29. Further case of the opposite party Nursing Home are that the opposite party Nursing Home all along tried to provide best care to the patient and acted as per well accepted medical norms. The opposite party Nursing Home acted prudently and there was no negligence or deficiency in service on the part of the opposite party Nursing Home at any point of time. Hence, the opposite party Nursing Home has prayed for dismissal of the complaint case. On behalf of the complainants, the complainant No. 1 Niladri Sekhar Bose has filed evidence on affidavit. He has also given reply against the questionnaire set forth by the opposite party Nursing Home. Sri Arindam Banerjee, General Manager of the opposite party Nursing Home has filed evidence on affidavit on behalf of the opposite party Nursing Home. he has also given reply against the questionnaire set forth by the complainants.

30. Both the complainants and the opposite party Nursing Home filed brief notes of argument in support of their respective cases.

31. Upon hearing both sides and on perusal of the pleadings of both sides, the following issues were framed for proper adjudication of this case.

ISSUES :

i) Is the complaint case maintainable ?

ii) Is the opposite party guilty of deficiency in service as alleged by the complainants ?

iii) Are the complainants entitled to get any relief / reliefs as prayed for ?

Decisions with reasons :

Issue No. 1 :

This issue is taken up first for consideration.

This issue has not been pressed by the Learned Advocate appearing for the parties at the time of hearing or arguments. So, this issue is decided in favour of the complainants and against the opposite party Nursing Home.

Issue Nos. 2 & 3 :

These two issues are taken up together for consideration for the sake of brevity and their interrelatedness.

32. Learned Advocate appearing for the complainants has urged that diagnosis by the opposite party Nursing Home demonstrates deficiency in service where several tests had been conducted without diagnosing the patient for the appropriate cause of discomfort and suffering. In fact, the patient was admitted to the Hospital facility of the opposite party for seven days from 9^th August, 2014 till 16^th August, 2014 whereby the patient could not be detected to have been suffering from Kawasaki disease. To the contrary, the patient was discharged on Doctors’ advice and upon immediate admission of the patient to the hospital facility of Sri Aurobindo Seva Kendra, the patient was detected and diagnosed with Kawasaki disease.

33. He has further submitted that purported suspicion of the opposite party Nursing Home appertaining to the disease suffered by the patient and the failure to treat and to detect the same amounts to gross deficiency in service.

34. He has further submitted that despite the suspicion of the Nursing Home regarding the said Kawasaki disease, the patient was discharged on Doctor’s advice. This is a clear deficiency in service which is apparent on the face of it for which the complainants are entitled to compensation as claimed in the complaint petition. On the other hand, Learned Lawyer appearing for the opposite party Nursing Home has urged that the complainants have failed to prove the case. So, the complaint case should be dismissed.

35. He has further urged that the complainants had filed the misconceived complaint against the opposite party Nursing Home.

36. He has further urged that there was no medical negligence on the part of the opposite party Nursing Home. So, the complaint case should be dismissed.

37. Having heard the Learned Advocates appearing for both the parties and on perusal of the record it appears to us that it is an admitted position that the complainant No. 1 Niladri Sekhar Bose had brought his son Shanoy Bose to the emergency Deptt. of the Columbia Asia Hospital, Salt Lake, Kolkata on 09.08.2014 at about 9.30 p.m.

38. It is also an admitted position that the patient namely Shanoy Bose was assessed by the emergency medical officer and advised admission under the care of Dr. Rajesh Kumar Goel, consultant pediatrician for further management.

39. It is also an admitted position that the baby presented with history of fever for 4-5 days with diarrhoea and vomiting.

40. It is also an admitted position that several tests and examinations on the patient were done to rule out the cause of fever with loose motion along with dehydration.

41. It is also an admitted position that the patient Shanoy Bose was discharged from the opposite party Nursing Home on 16.08.2014 and on that date the said patient was admitted at Sri Aurobindo Seva Kendra under Dr. Apurba Kumar Ghosh.

42. The matter was listed for final hearing on 22.06.2023 when the counsels for both sides appeared and advanced their arguments. We have perused the records of the case and given a careful consideration of the subject.

43. The question for adjudication in this complaint is whether the allegation of negligence as against the opposite party Nursing Home in the matter of treating the patient Shanoy Bose made out as argument by the Learned Counsel for the complainants and if so, whether the complainants are entitled for the relief claimed.

44. Upon hearing both sides and on careful perusal of the materials available on record it appears to us that the complainant Niladri Sekhar Bose had brought his son Shanoy Bose to the emergency department of the opposite party Nursing Home on 09.08.2014 at about  9.30 p.m. The patient was assessed by the emergency medical officer and advised admission under the care of Dr. Rajesh Kumar Goel, the consultant pediatrician for further management as he was the on call pediatrician on that day.

45. It is also on record that the patient was treated with intravenous fluid in jet, followed by half dns @ 75 ml/hr. The patient was also given injection Ceftriaxone 100 mg IV, injection Metrogyl 100 mg., 8 hourly oral, syrup Calpol 7 ml, stat and S.O.S., Emeset 2 mg and injection Pan 10 mg. The patient’s blood was sent for examination and other examination such as X ray, ultra sonography etc. of the patient was done to rule out the cause of such fever with vomiting etc. It is found that Dr. Rajesh Kumar Goel who was a pediatrician in the opposite party Nursing Home treated the said patient Shanoy Bose. It is not the case of the complainants that Dr. Rajesh Kumar Goel, treated doctor of the patient has not acted in accordance with the practice accepted as proper by a responsible body of medical men, skilled in that particular art. It is also not the case of the complainants that the medical practitioner i.e. Dr. Rajesh Kumar Goel did not take due care and caution while giving the treatment as per the established medical jurisprudence. It is also not the case of the complainants that the doctor does not give immediate treatment when required. In such a situation, we are of the view that no question of deficiency in service on the part of the opposite party Nursing Home would arise.

46. It is the case of the complainants that the complainants have also stated in their petition of complaint as well as in the evidence on affidavit filed by the complainants that the patient Shanoy Bose was discharged upon the attending Doctors’ advice of the said Nursing Home holding the child to have been suffered from acute gastroenteritis. In support of the case Learned Advocate appearing for the complainants has drawn the discharge summary issued by the opposite party Nursing Home. The opposite party Nursing Home has filed evidence on affidavit which goes to show that the patient was responding to the ongoing treatment with antibiotics and other supportive measurement. The same was followed. However, on the request of the father of the patient the opposite party Nursing Home had to discharge the patient on 16.08.2014 after eight days of consultative management with follow up requests after seven days or as and when necessary to diagnosis of acute gastroenteritis at present and the patient was advised to turn up thereafter, if required. But the patient did not turn up thereafter.  There is nothing on record to disbelieve the evidence as adduced by the opposite party Nursing Home.

47. It is the case of the complainants that Kawasaki virus was found on the body of the patient, which was detected on the first day of admission before the Sri Aurobindo Seva Kendra Hospital. But the record goes to show that that to prove the same the complainants have not produced any paper before the Hon’ble Commission to establish that the patient was identified with Kawasaki virus on the first day of admission or subsequently on manifestation of other syndromes.

48. It is found on the record that on 18.08.2014, the patient had redness of tongue and lips. The consultant Doctor suspected Kawasaki disease but not confirmed or recorded as it is an autoimmune disease in which the minimum sized blood vessel throughout the body became inflamed. The opposite party Nursing Home in their written version have also stated that Kawasaki disease is largely seen in children under five years of age. It affects many organ system mainly those including  blood vessels, skin, mucous membranes and lymph nodes. It is rarest but serious effect is on the heart where it can cause fatal coronary artery aneurysms, if untreated in children. The opposite party Nursing Home in their evidence have also stated so. It is also in evidence on record that to rule out any complication, the opposite party Nursing Home did eco cardiogram on 11.08.2014 and platelet count and those reports were within normal limits.

49. Under these facts and circumstances and on consideration of the evidence and the materials on record we are of the view that the opposite party Nursing Home and the consultant Doctors had treated the patient as per the diagnosis made based on clinical findings and test reports and the medicines that were prescribed was correct treatment as per well accepted medical norms. It can safely be held that the treatment rendered by the opposite party Nursing Home was perfect.

50. Learned Counsel for the complainants in support of their allegation regarding negligence against the treating Doctor and the opposite party Nursing Home has relied on the following judgment namely V. Kishan Rao – Vs. Nikhil Super Specialty Hospital and Anr. reported in (2010 (5) Supreme Court cases 513). However, reliance on this judgment in the adjudication of this complaint, facts being at variance, would be misplaced.

51. The Learned Counsel for the opposite party Nursing Home, on the other hand, has placed reliance on the judgment in a Scottish Case Hunter Vs. Hanley 1955 SC 200 holding as under :-

“ In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.”

  52. In Des Raj Singla & Ors. Vs. Dayanand Medical College and Hospital and Ors. reported in 2022 (1) CPR 45 (NC), the Hon’ble National Commission observed that :-

“ Onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence.

A mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of complaint can be said to be proved. It is the obligation of the complainant to provide hard evidence to prove the case of medical negligence against the Doctors / Hospitals.”

53. We appreciate the pain of the complainants but then, that by itself cannot be cause for awarding damages. We have sympathy for the complainants but sympathy cannot translates into legal remedy. Having regard to the discussion done and the legal position explained we are of the considered view that negligence as alleged against the treating doctors or the opposite party Nursing Home cannot be substantiated and thus complaint cannot be allowed.

54. In the result, the complaint case be and the same is dismissed.

55. There will be no order as to costs.

56. The complaint case is disposed of accordingly.