Order-9.

Date-26/02/2016.

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that son of complainant Raja Das aged about 15 years sometime in the morning of 23^rd April, 2015 experienced acute pain in his abdomen and he was taken to the OP Hospital in the Outpatient Department at about 9.00 a.m. from where outpatient card was taken and he was examined at about 11.30 a.m. by the attending doctors who after examination advised for his admission in the Hospital for immediate operation of Appendectomy which was so acute that immediate intervention was absolutely necessary.

          Accordingly he was admitted in the male ward and operated at about 5.20 p.m. and taken out of operation theatre at about 6.45 p.m. when he was found steady.  Complainant was permitted to stay with him at the time of admission and she noticed that before operation her son was kept under saline and before operation no radiological or pathological examination was done and the operation was performed without taking any least care which is generally done as abundant precaution in order to avert any post operative complication especially in a case Appendectomy.

          After operation complainant’s son was taken to the general ward and was kept under saline and attending nurse in the ward handed over list of some medicines for purchasing the same from outside.  Accordingly the complainant’s husband purchased those medicines and handed over  it to the attending nurse, thereafter, one injection was pushed and complainant and her husband left the ward as per instruction of the attending nurse and on the next two days i.e. 24-04-2015 and 25-04-2015 patient appeared to be improving as informed by the attending nurse and at about 8.00 p.m. the doctor on round after examining the patient told the complainant he would be discharged on the next Monday as the immediate next day was Sunday. 

          After the doctor on round left the ward one nurse pushed injection to the patient and during the course of pushing injection complainant’s son screamed saying that he experienced some burn like sensation and requested her to stop pushing such injection any more and noticing the pain on the face of her son complainant also requested to consult one doctor before pushing the remaining injection but the said nurse told not to interfere with her job.  But within a few seconds of pushing the said injection the patient turned to be totally yellowish and became unconscious and stiff and no least movement was noticed.  Complainant became so panicky that she along with her husband came out of ward and started searching out one of the doctors to combat the situation but the attending nurse was not at all convincedto give a call to the doctor under whom the patient was treated, the complainant on their own contacted the doctor and told him the episode and hearing such doctor attended the patient at about 10.00 p.m. and seeing the condition of the patient started pumping the chest by his hand vigorously but by that time the patient started vomiting blood while remained totally unconscious when Doctor put the patient under saline and took him to ICU at about 11.30 p.m.

          Patient was put on the ICU from 24-04-2015 to 01-05-2015 and during the period of staying in ICU, Hospital authority used to handover list of several medicines and air bed and other requisites as none of the medicines and other materials were provided by the Hospital Authority and during such period the complainant was not allowed to enter into the ICU and, despite repeated requests made by the complainant and her husband the Hospital Authority could not come with any plausible explanation as to the prognosis of the patient and ultimately at about 7.30 p.m. on 01-05-2015 the Hospital Authority informed the complainant that the patient died.

          Complainant lodge complaint dated 04-05-2015 with the Office-In-Charge, Tala Police Station requesting justice which was received by the duty officer on 07-05-2015 without giving any diary number.

          Complainant’s son became victim of gross negligence of the RG Kar Hospital and the incident shook the students fraternity since her son was expected the result of Madhyamik Examination who appeared in the examination from Dakshineswar High School and he passed the examination but he could not see his success in his own eyes.  

          In the mean time complainant demanded the copy of the treatment papers so as to learn the reason of the death of Raj but the Hospital Authority did not cooperate with the complainant on the plea that there was no system for proving any such papers to the patient party.  Complainant requested the hospital authority to divulge the injection which was administered upon the4 victim and the name of the nurse who pushed the same but no information was supplied by the Hospital Authority and being refused such information complainant made an application u/s.6 of Right to Information Act, 2005 asking the Superintendent of R.G. Kar Medical College and Hospital to furnish the following particulars .

1. Whether Raj Das son of Joy Das of 4 No. New Joysree Nagar, Dakshineswar, Kolkata – 700 076, P.S. Belgharia, Dist – North 24 Parganas was admitted in the OP’s hospital.
2. Whether any appendectomy operation was conducted in the person of Raj Das and if done the date of operation and the name of surgeon who conducted the operation.
3. What was the bed number and the ward where the patient Raj Das was admitted.
4. Whether any radiological and pathological tests were done before operation and if done the details thereof.
5. What is the names of the nurse/nurses attending the patient, Raj Das on 25-04-2015 and the details of medicines and injection administered by them to the patient.
6. What was the details of bed head tickets showing instruction made by the visiting doctors under whom the patient was admitted to the Nurses in the matter of giving medicines and injections.
7. Whether patient Raj Das was taken to ICU on the night of25-04-2015 and if yes the name of the injection pushed to the patient immediately before the shifting to the ICU.
8. Whether the air bed for the patient was purchased by the patient party and handed over to the Hospital and if the same has been retained by the Hospital till today.
9. What are the names of the medicines and other things purchased from outside by the patient party and the names of the medicines provided by the Hospital.
10. What was the date of death of the patient and reason of the death.
11. Can OP furnish attested copy of the bed head ticket showing the details of treatment of the patient.

Instead of furnishing the information the Hospital Authority instructed the complainants to meet the authority.

Health &Family Welfare Department of the State Government being a statutory body has been vested with the responsibility of maintaining and developing the health care system in West Bengal.  Public Health, sanitation and hospitals are the exclusive responsibilities of the State and also State provides financial and managerial support for the basic health care support and infrastructural facilities at the rural level of Hospitals as such the OP1 being a Hospital and OP2 being principal officer of R.G. Kar Medical College & Hospital are acting under the control and supervision of the Health & Family Welfare Department and they cannot shrug their responsibilities for any misdeeds perpetrated by the erring hospital.  Thus it appears that the OPs were utterly negligent in treating the patient and owing to their negligent act in taking adequate precaution, the complainant’s only son died.

That the service so far rendered by the OPs suffers of deficiency within the meaning of C.P. Act, 1986 and the complainant is the consumer and the OPs are service provider within the meaning of the said Act and as such, they cannot be allowed to evade their responsibility.

Loss of life is hard to be compensated by money value and is simply hard to be estimated, however, for the purpose of this complainant prays before Forum to direct the OP to pay 15,00,000/- as compensation and to file papers at the hands of the complainant at the time of hearing with liberty to call for the entire record from the Hospital Authority and for other reliefs as the Forum may deem fit and proper.

OPs were duly served with notices but they did not turn upto the contest the.

Decision with Reasons

Before entering into the merit of this case we want to mention that notices of this compliant was duly serviced upon the OP R.G. Kar Medical College Authority, Secretary of Health on 15-10-2015 but even after that they did not turn up and not only that when the case was fixed for ex parte hearing and Evidence in Chief was filed by the complainant.  Further copy of the E Chief was also served upon the OPs on 21-12-2015 and 22-12-2015 but even then they did not turn up to contest the case so ultimately the case is heard ex parte. 

          On careful consideration of the complaint and particularly the documents filed by the complainant and specifically the death certificate issued by the R.G. Kar Medical College and Hospital it is found that deceased Raj Das s/o. Joy Das was admitted to the R.G. Kar Medical College and Hospital on 23-04-2015 and expired on 01-05-2005 at 7.15 p.m. and cause of death was Multi-organ Dysfunction Symdrome in a post operative case of Acute Appendicitis with Complication and as per complaint complainant’s son was admitted to R.G. Kar Medical College and Hospital on 23-04-2015 at morning hours for a check up as outpatient as Raj Das was suffering from abdominal pain and after checking up Doctor duly admitted him as there was urgency to undergo a surgery for appendicitis and on 23-04-2015 at about 5.20 p.m. his son was taken to OP for appendicitis operation and after operation he was quite OK.  Doctor prescribed few medicines and injection which would be injected daily and complainant’s son was recovering after operation, he was walking in the hospital corridor, only he felt some pain in his operational area that was also reported to the doctor on 25-04-2015 evening but in that evening a nurse without consulting with the doctor pushed injection at about 9.40 to 9.45 p.m. and within a fraction of second patient did not respond at all and fell unconscious and doctor was informed when doctor came complainant’s son did not respond then he shifted patient to ICCU of the hospital but after that his son did not recover from unconscious state and went ultimately died on 01-05-2015.  Main allegation of the complainant is that, in fact, due to infusion of two injections by the nurse on the evening of 25-04-2015 his son collapsed forthwith.

          The matter was reported to the doctor for enquiry but doctor did nothing and in the death certificate it is noted that death was due to Multi-organ Dysfunction Symdrome in a post operative case of Acute Appendicitis with Complication but in the medical report there is no such assertion or averment of the doctor that the case was very complicated or at the time of admission the position of the patient was very serious and, in fact, only appendectomy in case of simple appendicitis was done and after operation the doctors sent specimen of appendicular lump for histopathological report of R.G. Kar Medical College and Hospital authority submitted report mentioning result – Sections show histopathological features of acute appendicitis with peri-appendicitis but nowhere it is noted that said appendicitis is in critical condition.

          As per renowned doctors of London School of Surgery, standard treatment for appendicitis is an appendectomy, a surgical procedure to remove the appendix and when the appendicitis became inflamed and filled with pus, a thick liquid containing bacteria, tissue cells and dead white blood cells and this infection will cause pressures within appendix to quickly increase.  The said doctors also opined that removing appendix through an appendectomy does not cause generally any health problem and practically the surgery is very simple surgery all over the world but the doctors of London School of Surgery have confirmed that general surgical procedure of Appendectomy for treatment of appendicitis is not at all very complicated operation and it is simple operation and that procedure is always correct procedure but danger of appendicitis are there when appendix is ruptured or burst because ruptured appendix can quickly lead to other health issues. 

          But in the present case this appendix was not burst or ruptured.  Then there was no note prior to operation that there was any need of treating peritonitis or etc.

          Those doctors also confirmed immediately after removal of the appendix result is quite recovery without any complication, particularly in case of children and in the present case said fellow was aged about 15 years.

          Furthermore from the death report it is clear that the patient does not suffered from any septicemia or there is no such report that the blood cells of the complainant was infected by the bacteria and till death there was no such medical report on the part of the hospital authority.  Further there is no such report of the doctor that it was a septic shock(severely low blood pressure) but from the medical experts’ of London School of Surgery it is clear that in case of ruptured and burst of appendix body releases chemicals into the bloodstream to fight the infection, triggering an inflammatory response throughout the body called sepsis and ruptured appendix actually may cause death in some cases and in respect of burst of appendix similar consequences may be faced by the patient but complication must be found at preoperative stage and before appendectomy.  So, the said doctors also opined and come to a conclusion that in case of general simple appendicitis weakness, chills, high fever and a feeling of rectal fullness are not found and in the present case the patient did not face such symptom which is evident from the treatment sheet and at the same time doctors have not noted that before appendectomy there was pus or peritonitis or burst of appendix or ruptured of appendix so, it is clear that in such sort of cases even after operation there was no cause of any complications and standard treatment for appendicitis is Appendectomy and this surgical simple procedure is to remove appendix and in this case appendix was removed and patient was OK and only he felt some minor pain on the operated area and doctor did not note any complication after operation in the papers collected by the complainant that but it is specifically alleged that after giving two injections within an interval of 5 minutes on 24-04-2015 in between 9.40 to 9.45 p.m. and within a fraction of second patient became unconscious and did not become respond and thereafter, doctor came and shifted to ICU but he did not recover and thereafter, died on 01-05-2015.  The very fact simply proves invariably for giving some wrong injections by the nurse without consulting the doctor the condition of the patient was deteriorated and he lost his sense and did not respond and went to COMA and died at hospital.

          This allegation has not been challenged by the doctors not only that this complainant wrote a letter with some allegations under RTI Act R.G. Kar Medical College and Hospital authority who did not answer, did not produce any document and also did not justify that their treatment was correct, injection was given by the Nurse was correct but they are silent even after receipt of the notice of the complaint and the receipt of the Evidence in Chief as filed by the complainant before this Forum.  It indicates that there was fault on the part of the hospital authority, doctors and the nurses for which they are silent if they have their guards they ought to have produced all the valuable documents in support of their defence, if any.

Peculiar factor is that Multi-organ Dysfunction was not caused for sepsis or septicemia and complainant did not suffer from this because it is not the case of burst appendicitis or ruptured appendicitis that means negligence was on the part of the hospital authority and their staff and doctors particularly it is proved that nurse somehow transfused some incorrect injections for which forthwith her son lost sense and it is no doubt wrong treatment on the part of the hospital authority and they realized it for which they are silent even after servicing of copy of the complaint and E Chief of the complainant.

          Most interesting factor is that Secretary, Government of West Bengal is made a party and he is also silent and this is the conduct of the hospital authority.  So considering all the above facts and materials we are of view that the entire hospital authority is very much dumb only tried to bury their mistakes for which they did not answer against the queries made by the complainant not even they show their honesty to contest the case and to prove that there was no mistake or negligence on their part.  In this context it is to be mentioned that as per definition of the terms of negligence it is a legal duty to exercise due care for treatment to the patient by the doctors and hospital authority and for any breach of said duty consequential damages caused to the patient for which patient ultimately died in that case negligence is well proved and in the particular case the deficiency of service was such a reckless in nature that cannot anyway exonerate them and in the present case the doctor including hospital are held negligent when they delegated their responsibility to the nurse also who practically infuse some wrong injection during performing their duties for which forthwith the fit patient died.  Though at the relevant time there was no complications, no sufferings and patient was moving but just after infusion of the said two injections by the nurse of the OP complainant’s son ultimately went to COMA that could not be cured by the hospital authority when they have found that the nurse already caused damage to the patient and chance of recovery was at stake, it was OPs’ duty to take action.  Taking into consideration of the above facts and materials we are convinced to hold that in the particular case medical negligence is done on the part of the OP on the ground it is expected from the Government Hospital that the patients shall have to get proper care caution after treatment while giving medicine or injection etc. but in the present case it is found OPs did not in accordance with the practice accepted by a responsible body of medical man and establishment.  So, we are inclined to hold that as per proposition as laid down regarding                        duties of the hospital authority doctors and their staff it is the duty to give proper safer and skillful service to the patient and in the present case no doubt the complainant has proved her burden at least prima facie the negligence against the hospital authority beyond any manner of doubt on the ground after considering the opinion of authoritative doctors of different institution we find that appendectomy is a very simple operation in case of a very simple appendix in the present case the patient was suffering from simple appendix not burst or ruptured appendix.  Complainant never suffered from septicemia or sepsis and death was not caused for septicemia or sepsis that means after operation no such complications was arisen regarding sepsis or septicemia and patient was very OK only patient lost his consciousness and went to COMA after giving injection by the nurse that means two injections were erroneous and the patient ultimately died so, it is clear that after operation there was no infection and patient recovered from his all sorts of sufferings he was quite Ok he was moving but only felt some pain on the operated area and that was reported to the nurse and nurse infused some injection and ultimately the patient died.  Then it is clear that the injection which was given by the nurse or OP’s authority caused the death and in this regard the OP hospital and their doctors and nurse are equally responsible for the death of the patient when that is the fact then negligence and breach of duty on the part of OP are well proved.

          In this context it is to be mentioned that it is the duty of the hospital authority to give and to undertake to render a service to the patient for saving the life of the patient and to stabilize the condition of the patient when he was progressing after operation and that is called post operative management but that has not been done.

          Further when the patient reported about his sufferings from pain on the operated area to the nurse it was the duty of the nurse to depute doctor for his opinion and for his further advice but that was not taken.  But the rule of law is that to study symptoms and complaints of the patient very carefully during treatment and to administer standard treatment and that is the observation of the Hon’ble Supreme Court in many cases.  When that is the fact then it is clear that entire OP hospital authority and their doctor and their staff did not act in accordance with a practice accepted as proper by a responsible body of medical man skill in that particular profession.  Already Supreme Court has pointed out the duties of the doctors or hospital authority in Laxman Balakrishna Joshi case reported in AIR 1969 Supreme Court 128 and further Hon’ble Supreme Court decided that matter in another judgment reported in (1996) 2 SCC 634.  So, in the present case sufferings was caused to the patient due to wrong infusion of injection by the Nurse of the Hospital Authority and then invariably it is medical negligence on the part of the hospital authority including their staff and doctors also.

          In the present case, in view of the said principle of law hospital and nursing home are equally liable for the negligence of staff and doctors working under them and in a case of negligence of the doctors or the staff the patient may claim damages either from the doctors or from the hospital under the doctrine of vicarious liability.  Fact remains, hospital administration and management are made as role complied by the doctors or staff in treatment of a specimen or that a surgeon performing surgery and it is well-known that negligence on the part of the person entrusted will establish of management of hospital may lead to several complications and medical complications and even death and this negligence is pre or post operative care can be as much the cause of medical complications or death as negligence or the pertaining to surgery for attending doctors or surgeon, nurse.  In this context it is to be mentioned that medical mistake is always real finding of medical negligence use of wrong drug, wrong injection during course of post operative treatment lead to imposition of liability and in some situation even the principle of res ipsa conquitor can be applied at the same time delegation of responsibility to the nurse may amount to negligence in certain circumstances and at the same time doctor could be negligent when he delegate the responsibility with nurse or engaged that nurse who is incapable of performing duties perfectly.

          At the same time it is the bounden duty on the part of the hospital authority to depute qualified nurse and doctors to treat the patient and the vicarious act refers the cause done through delegation or a person deputed by another.   In legal parlance vicarious liability is the liability of one of the case of another.  So, hospitals are held to be liable for acts of their employees, doctors and other medical staff when their negligency and deficiency are found.  National Commission already decided in case of Dr. S.R. Luis and another vs. Smt. Kannolil-M-Pathumma and others the activity for providing medical assistance carried by hospital and principle of medical provision and staff falls within the scope of expression service has denied in Section 2(1)(o) of C.P. Act and it is also held that when hospital authority during rendering services to the patient for injuries caused to him by the negligence or other fault of the doctor, surgeon, nurse or other members of hospital in that case it is liability of the hospital authority for the negligence, deficient manner of service rendered by them.  At the same time it is the duty of the hospital authority to give complete treatment sheets, bed head ticket etc. to the patient but in the present case that has also not been done even complainant submitted application along with queries under RTI Act and for non-supply of relevant documents adverse injuries is possibly can drawn with regard to deficiency in service and in fact, the entire bed head ticket, other documents materials were not supplied by the OPs on the death of the patient and in this regard we have relied upon ruling reported in II (2006) CPJ 123 (NC).

          On overall evaluation of the entire materials on record including the negligence and deficient manner of service rendered by the OPs hospital staff and their doctor we are convinced that complainant is able to prove the negligence and deficient manner of service on the part of the OP beyond any manner of doubt and no doubt due to negligence and deficiency of service on the part of the OPs hospital and nurse and doctors an youthful boy aged about 15 died and its death was caused due to nurse of the hospital who transfused wrong injection and in fact doctors also did not take any positive step in this regard and hospital authority also did not take any action in this regard and did not supply the document in support of his treatment etc. and other wise it was found that in case of very simple appendectomy such a death cannot be caused.  When there was no complication after operation or at the time of admission of the patient it was not a complicated appendix (ruptured or burst appendix).

          In view of the above facts and circumstances and considering the materials on record we are convinced to hold that medical negligence at the same time negligent and deficient manner of service on the part of the OPs’ hospital and Government Authority is well proved and for which this complaint succeeds.

Hence,

Ordered

That the case be and the same is allowed ex parte against the OPs with a cost of Rs.10,000/-.

          OPs are jointly and severally are hereby directed to pay a compensation of Rs.15,00,000/- to the complainant for causing death of his son Raj Das and that death was caused due to negligent and deficient manner of service and treatment done by the OPs and this amount is not sufficient because value of life cannot be assessed by money but truth is that at the relevant time the unfortunate boy Raj Das completed his examination but he failed to proceed with her education in future life which was completely shut down at the hand of the hospital.

          OPs jointly and severally are hereby directed to pay the compensation including litigation cost within one month from the date of this order failing which for non-compliance of the Forum’s order OPs jointly and severally shall have to pay penal damages @10 percent p.a. over the same till full satisfaction of the decree even if it is found that OPs are reluctant to comply the order in that case penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.