24.08.2017
HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER.
This Complaint u/s 17(1)(a)(i) of the Consumer Protection Act, 1986 is directed by the mother of the deceased patient concerned alleging medical negligence on the part of the OPs with claim for relief of Rs. 38,70,400/- as pecuniary damages for loss of future earning etc. of the deceased patient of 32 years old, Rs. 15,00,000/- as non-pecuniary damages for loss of company and sufferings of the mother and the wife and Rs. 5,00,000/- as punitive damages to prevent recurrence of alleged medical negligence.
Brief facts of the case, as emanating from the materials on records, are that the Complainant got her only son admitted on 23.2.2014 to Habra General Hospital which, after USG of the whole abdomen, diagnosed that the son of the Complainant was suffering from ‘Gallbladder stone’ and referred on 4.3.2014 the patient concerned to R.G.Kar Medical College & Hospital. Accordingly, the patient was brought to R.G.Kar Medical College & Hospital on 8.3.2014 where the OP No. 5, after examination of USG report and the patient concerned, advised for ‘immediate admission’ for Gallbladder operation. But despite such advice for ‘immediate admission’ the patient was admitted on 15.3.2014 at 12.43 hours on the Paying Bed in R.G.Kar Medical College & Hospital, being the OP No. 1, under the treatment of the OP Nos. 2,3 & 4, as averred in the Petition of Complaint. After four days of admission the patient was informed on 19.3.2014 that the date of operation was fixed on 20.3.2014. On 20.3.2014 “4 post laparoscopic cholecystectomy under G.A.” was done by a team of doctors being the OP Nos. 2,3 & 4. After the said operation the condition of the patient deteriorated with pain in the stomach, but without taking any redressal action by the doctors concerned the patient was discharged on 23.3.2014 with persisting critical condition of the patient as alleged in the Petition of Complaint. After such discharge, the patient again on 27.3.2014 complained of ‘severe stomach pain accompanied by difficulty in breathing’. With the critical condition when the patient concerned was on the way to hospital by ambulance, the patient expired on the way on 27.3.2014. After the death of the patient the post mortem was done. The Post Mortem Report dated 27.3.2014 of Dr. B.N.Bose Sub-Divisional Hospital, Barrackpore, North 24 Parganas, exhibits “One small metallic clip was detected from there. 19 small sized stones were detected in the Galbladder Bed and adjacent area”. With the aforesaid factual background, the Complainant has moved the present Complaint before this Commission.
The Complainant appearing in person submits that the delayed admission of the patient on 15.3.2014 after advice on 8.3.2014 by the doctor, being the OP No. 5, for ‘immediate admission’, delayed surgery on 20.3.2014 after admission on 15.3.2014, leaving of metallic clip and 19 small stones inside the operated area after Cholesystectomy and discharge of the patient concerned on 23.3.2014 despite persisting pain in the abdomen, conspicuously indicate deficiency in service and resultant medical negligence on the part of the treating doctors, being the OP Nos. 2,3 & 4.
The Complainant adds that the treating doctors, being the OP Nos. 2,3 & 4, are also liable for conducting the operation without ‘Informed Consent’ duly signed by the patient concerned.
The Complainant also submits that the OP No. 5, being the Medical Officer of the OP No. 1-Hospital, is also liable for medical negligence for failure to ensure proper medical treatment by the treating doctors and discharge of the patient concerned despite persisting pain in the abdomen at the time of discharge.
The Complainant further submits that the OP No. 1-Hospital also cannot shake off its liability for its failure to ensure proper medical treatment to the patient by the doctors concerned who were engaged with the OP No. 1-Hospital for providing proper medical service to the patient and also for its failure to provide to the Complainant the treatment records, e.g. Bedhead tickets, O.T. records, Biopsy Report, etc., as requisitioned by the Complainant by a letter dated 13.5.2014.
The Complainant concludes that in view of the above, it is clearly established that there was ex facie deficiency in service and resultant medical negligence on the part of the OPs and hence, the instant Complaint should be allowed and appropriate compensation, as justified in the Complaint Petition, be allowed.
None appears on behalf of the OPs despite proper service of Notices upon them, as is evident from the Order No. 4 dated 18.1.2016 of this Commission with noting that the A.D. concerned shows due service of Notices upon the OP Nos. 1,3 & 4 and the Order No. 6 dated 21.6.2016 with noting of due service of Notices upon the OP Nos. 2 & 5 through paper publication in the ‘Ei Samay’ dated 10.6.2016.
The Post Mortem Report dated 27.3.2014 of the M.O. Medico Legal, Dr. B.N.Bose Sub-Divisional Hospital, Barrackpore, North 24 Parganas, exhibits “One small metallic clip was detected from there. 19 small sized stones were detected in the Galbladder Bed and adjacent area” after Laparoscopic Cholesystectomy was performed upon the patient concerned, indicating thereby ex facie deficiency in service the treating doctors being the OP Nos. 2,3 & 4 owed to the patient concerned and medical negligence on their part as well.
The OP Nos. 2,3 & 4 did what any ordinary medical practitioner would not have done and hence, the OPs are liable for medical negligence. In this context, the decision of the Hon’ble Supreme Court in Achutrao Haribhau Khodwa Vs. State of Maharashtra & Ors., reported in 1 (1996) CLT 532 SC, is also relevant where it was held “Where the doctors act carelessly and in manner which is not expected of a medical practitioner, in such a case action on torts maintainable”.
The OP No. 5-Doctor, being the concerned medical officer also cannot shake off her liability for her failure to ensure proper medical treatment of the patient concerned by the treating doctors.
The OP No. 1-Hospital is also vicariously liable for its failure to ensure proper and diligent care and treatment by the doctors concerned who are engaged with it for providing medical service, as was held by the Hon’ble Supreme Court in Smt. Savita Garg Vs. Director, National Heart Institute, reported in 2014 (4) 258 (SC).
The presence of metallic clip and 19 pieces of stone inside the operated site, as it is revealed from the Post Mortem Report dated 27.3.2014, undisputedly indicates that the instrumentality or condition causing injury was in the OPs’ exclusive control and that the injury would not have caused in absence of negligence. In this context, reliance is placed on a decision of the Hon’ble National Commission in Usha Bansal Nursing Home & Anr. Vs. Pritam Singh & Anr., reported in 2015 (2) CPR 314 (NC).
The OPs even after due service of Notices have not appeared to rebut the allegation against them which indicates that the allegations of the Complainant against the OPs stands uncontroverted, which logically implies the application of principle of acquiescence on behalf of the doctors concerned in the allegation of medical negligence by the Complainant in the Petition of Complaint.
The foregoing facts and discussions lead to the conclusion that the three essential components of medical negligence, i.e. ‘duty’, ‘breach’ and ‘resultant damage’, as observed in Paragraph-10 of the decision of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr., reported in (2005) 6 SCC 1, are present in the case on hand and hence, the instant Complaint is allowed.
As regards compensation, the Petition of Complaint reveals that the Complainant, following the decision of the Hon’ble Supreme Court in the matter of just and reasonable compensation in Dr. Balram Prasad Vs. Dr. Kunal Saha & Ors., reported in (2014) 1 SCC 384, has claimed compensation with detailed break-up of the individual item of total claim in proper perspective under separate headings of Pecuniary, Non-pecuniary and Punitive Damages. The total claim of the wrongful death of the only son of the Complainant at the age of 32 years stands at Rs. 58,70,400/- including the pecuniary damages of Rs. 38,70,400/- for loss of future earning of the patient concerned and others, non-pecuniary damages of Rs. 15,00,000/- for loss of companionship of the deceased, emotional distress and sufferings and Punitive Damages of Rs. 5,00,000/- to prevent recurrence of such careless negligent treatment.
Considering the evidence on records and the decision of the Hon’ble Supreme Court in Balram Prasad Vs. Dr. Kunal Saha & Ors. (supra) the following compensation is awarded :
- Loss of future income of the deceased - Rs. 38,00,000/-
- Loss of companionship - Rs. 3,00,000/-
- Pain and sufferings by the deceased - Rs. 5,00,000/-
- Cost of litigation - Rs. 15,000/-
Therefore, an amount of Rs. 46,15,000/- is the compensation awarded in this Complaint Case in favour of the Complainant.
Out of the aforesaid total compensation, the OP Nos. 2,3 & 4 are directed to pay to the Complainant Rs. 12,00,000/- each, OP No. 1 to pay Rs. 8,00,000/- and OP No. 5 to pay Rs. 2,15,000/- within 45 days from the date of this order, failing which the defaulting OPs shall pay to the Complainant simple interest @ 8% per annum on the respective amount for the entire period of default.
