HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 15 & 17 of the Consumer Protection Act, 1986 ( in short, ‘the Act’), arising out of order dated 26.09.2014 passed by the Learned District Consumer District Redressal Forum, Purba Medinipur ( in short, ‘the District Forum’, presently the ‘District Commission’) in connection with consumer case No. CC/22/2009. By the impugned order, the District Forum has allowed the consumer complaint on contest.

2. Briefly stated the facts of the case as mentioned in the consumer complaint are that the complainant Raju Chaurasia was the husband of the deceased, Usha Chaurasia who died due to negligence of the opposite party Nos. 1 & 2. Late Usha Chaurasia was being treated by the opposite party No. 2, Doctor who was the consultant gynecologist of the opposite party No. 1 Nursing Home. During the period of treatment of the deceased Usha Chaurasia all tests and USG were done as per advice of Dr. Tapan Kumar Khatua who after scrutinizing was satisfied with the said reports, thereafter Dr. Khatua assured the complainant and his wife (now deceased) that “there was everything normal and healthy as well as there was no abnormality regarding the pregnancy of Usha Chaurasia.” Though the expected date of delivery of Usha Chaurasia (now deceased) was 07.02.2009 but as per advice of Dr. Khatua she was admitted in the Nursing Home of opposite party No. 1 on 25.01.2009. Accordingly, Dr. Khatua made a caesarian delivery of the wife of the complainant on 26.01.2009 at about 10 AM and one female baby was born. After operation the baby and the mother both were healthy which was declared by Dr. Khatua. The complainant was allowed to visit them. But when the complainant visited the patient, he found the patient unconscious and the baby was okay at about 12 noon.

3. But all on a sudden at about 4 PM, the said Nursing Home personnel informed the complainant that Usha Chaurasia’s health condition deteriorated and she had been shifted to ventilation and also said to the complainant that they may have to shift the patient to Medical College at Kolkata for better treatment. They also informed the complainant to arrange an ambulance with ventilation facility. At that time the complainant found the patient at gasping condition and the Doctors any how were trying to shift the patient to avoid responsibility as well as to hide negligence of Doctors and the Nursing Home.

4. It was unfortunate that there was no such ambulance at Tamluk or anywhere in the surrounding of Tamluk as demanded by    the Nursing Home. But somehow the complainant managed to bring such ambulance from B.M. Birla Heart Research Center at Kolkata which reached opposite party No. 1’s Nursing Home at 9.30 PM. No sooner the ambulance reached, the complainant rushed to the Nursing Home and informed the personnel to take necessary action to shift the patient into the ambulance to Kolkata. Instead of shifting the patient to ambulance, the Nursing Home personnel informed the complainant that the patient has already expired.

5. Taking scope of the complainant’s mental condition made the complainant sign on several papers and demanded Rs.20000/- for which the opposite party No. 1 did not issue any receipt. After several request the Nursing Home supplied incomplete, manufactured and fictitious bed treatment note sheet, death records and money receipt of only Rs.2000/- showing payment of medicines. The complainant held that the Nursing Home of opposite party No. 1 has not being maintained as per rules and orders of Medical Council Act. He further states that opposite party No. 2, Dr. Khatua, was very careless about the said patient and he alone made the delivery operation without help of proper assistance. When the said patient’s condition was deteriorating seriously, Dr. Khatua was not available in the said Nursing Home and the patient expired due to medical negligence of Dr. Khatua for which the complainant filed this case against Dr. Khatua and New Saradamoyee Nursing Home, opposite party No. 1 and opposite party No. 2 respectively.

6. The opposite party No. 1 Nursing Home and the opposite party No. 2 Doctor entered appearance in this case and were contesting the case by filing separate two versions denying and disputing the case of the complainant. The specific case of the opposite party No. 1 is that the patient Usha Chaurasia was admitted in their Nursing Home for delivery purpose and the Doctors and the Nursing Home staffs made all possible efforts to make the patient fit but due to her physical condition she had to succumb to death.  As such, there was no negligence on the part of the Nursing Home. As such, the opposite party No. 1 has prayed for dismissal of the case.

7. The case of the opposite party No. 2 is that the patient Usha Chaurasia came to him when Usha Chaurasia was 36 weeks’ pregnant. The treatment plan was made on the basis of sonography report and other test reports which were done after the advice of a previous Doctor and on clinical examination of the patient. The deceased came to his clinic on 31.12.2008 and the first part of January, 2009 though the delivery date was on 07.02.2009 but the patient came to the Nursing Home with a complaint of labour pain. So, she was admitted to the Nursing Home on the same day and the opposite party No. 2 Doctor was called in as per the advice of the patient party for delivery. But when it was not possible due to the non progress of labour, decision was taken for caesarian operation and necessary permission was taken from the patient party. The caesarian operation was done on 26.01.2009 at about 10.00 a.m. and after delivery both the mother and baby was found normal. But suddenly at about 11.45 a.m. on the same day, the patient developed hypertension with  postpartum hemorrhage along with decreased urinary output. When such situation arose, necessary treatment was made and an expert namely Dr. T.K. Pal was called and according to his advice some investigations were also done and the treatment was also started according to his advice. His provisional diagnosis was acute renal failure. But gradually when no positive response was available about the condition of the patient, consultation was made with the said physician and the patient was referred to a State Medical College and referential letter was prepared at 4.00 p.m. on that day. During that period the patient became very restless and violent and suddenly the patient slipped into coma.

8. Further case of the opposite party No. 2 is that fortunately at that time anesthetist Dr. P. Shasmal was present who on examining the case, intubated and ventilation was done with boyles apparatus as life saving measures. As such type of patient could not be transferred without critical care ambulance, for which such ambulance was called from Kolkata. As such ambulance was not available at Tamluk or its surroundings, the opposite parties No. 1 & 2 asked the complainant to make arrangement of ambulance with ventilation facility from Kolkata. But the said ambulance reached after the death of the patient because of road traffic block at Kolaghat bridge. As such, the opposite party No. 2 pleads that he cannot be held responsible for the death of Usha Chaurasia. Accordingly, the opposite party No. 2 has prayed for dismissal of the case.

9. The District Commission on an appreciation of the materials on record has allowed the consumer complaint vide order dated 26.09.2014 in the above manner. Aggrieved by the said order, the opposite parties No. 1 & 2 have filed this appeal.

10. We have heard the Learned Advocates appearing for the parties. We have also gone through the entire records of the District Forum and perused the materials placed on record.

11. Learned Counsel for the appellants has urged before this Commission that the referential letter made to higher centre for continuous monitoring and better management by the experts. The facilities available included ventilator and the patient was provided with ventilator support which was recorded in the impugned order passed by the District Commission.

12. He has further urged that the condition of the mother was not at all stable and in such condition feeding of baby was not permissible. Attempt was made to stabilize the patient only and the baby was given alternative food. As such, the baby was not given to her mother to be fed or for any other purpose.

13. He has further urged that the patient had suffered from suspected post partum renal failure and as such complication is a known complication and is generally idiopathic which means the reason for the complication cannot be ascertained.

14. He has further urged that the District Commission ought to have obtained an expert’s opinion and without an expert’s opinion, the court cannot come to a conclusion as to the negligence and as to the referral time or treatment protocol. On the other hand, Learned Advocate appearing for the respondents has urged that the Learned District Commission has passed the order legally. He has further urged that the Learned District Commission considered the settled principles of law. So, the appeal should be dismissed and the impugned order should be confirmed.

15. Having heard the Learned Advocate appearing for both the parties and on perusal of the materials on record it appears to us that it is an admitted position that Usha Chaurasia, wife of Raju Chaurasia was admitted in the Nursing Home of the opposite party No. 1 on 25.01.2009.

16. It is also an admitted position that the opposite party No. 2 Dr. Khatua made a caesarian delivery of Usha Chaurasia on 26.01.2009 at about 10.00 a.m. and a female baby was born.

17. It is also an admitted position that after operation, both the baby and the mother were normal as declared by the opposite party No. 2 Dr. Khatua.

18. It is also an admitted position that on 26.01.2009 after 11.45 a.m. the condition of the said Usha Chaurasia was deteriorated and the Nursing Home authorities referred said Usha Chaurasia to the State Medical College & Hospital and referential letter was prepared at 4.00 p.m on that day.

19. It is also an admitted position that on 26.01.2009 the appellants asked the complainant to make arrangement for an ambulance with ventilation facility from Kolkata as there was no ambulance with ventilation facility available at Tamluk or its surrounding places.

20. It is also an admitted position that the complainant made arrangement for an ambulance with ventilation facility and the said ambulance reached after the death of the patient.

21. Now, we have to consider as to whether there was any negligence on the part of the appellants or not.

22. On going through the written version filed by the opposite party No. 2 Dr. Khatua and his evidence on affidavit it appears to us that the opposite party No. 2 Doctor has nowhere stated in his written version as well as in his evidence that they took necessary tests and examination of the patient immediately after admission and before caesarian operation of the patient, rather, the opposite party No. 2 in his written version has clearly and categorically stated that the treatment plan was made on the basis of sonography report and other test reports which were done after the advice of a previous Doctor and on clinical examination of the patient.  The evidence of the appellant No. 2/ opposite party No. 2 goes to show that the appellant did not file any O.T. note to prove that the appellant No. 2 made caesarian operation of Usha Chaurasia and other Doctors assisted him. This fact proves that at the time of caesarian operation there was no other Doctor assisted the appellant No. 2 / opposite party No. 2.

23. It is the case of the opposite party No. 2 that when the condition of the patient was serious necessary treatment was made and an expert namely Dr. T.K. Pal was called and according to his advice some investigations were also done and treatment was started according to his advice. Dr. T.K. Pal’s provisional diagnosis was acute renal failure. We fail to accept such version of the opposite party No. 2 Doctor as because the opposite party No. 1 Nursing Home and the opposite party No. 2 Doctor failed to produce any treatment documents to show that Dr. T.K. Pal has been called for as an expert and Dr. Pal advised medicine. So, the version of the opposite party No. 2 in this regard is not believable and acceptable. The appellant No. 2 / opposite party No. 2 in their evidence have stated that Dr. P. Shasmal was present, who on examination the case intubated and ventilation was done with Boyles apparatus as life saving measure as such type of patient could not be transferred without critical care ambulance for which such ambulance was called from Kolkata as the ambulance was not available at Tamluk or its surrounding.

24. From the above statement it is clear that Dr. P.K. Shasmal was not called for examining during the critical stage as because he was present at that time and he assisted the treating Doctor. Therefore, such facts clearly proves that there was no urgency of the appellants in the critical time.

25. In case of a critical condition of a patient time management is very necessary. Keeping pending a critical patient for hours always lead to fatal. In this case we find that the delivery was made at 10.00 a.m. on 26.01.2009 and the condition of the patient deteriorated at 11.45 a.m. as per the statement of the Doctor. Thereafter, Dr. T.K. Pal was called who advised certain tests and advised medicine. There was no evidence on record whether the appellant No. 2 Doctor was present during the critical stage of the patient. This fact proves that the opposite party No. 2 / Appellant No. 2  Doctor was not at all present while Dr. T.K. Pal treated the patient though the opposite party No. 2 Doctor made caesarian delivery of the wife of Raju Chaurasia. Another aspect of this case is that the condition of the patient was deteriorated on 26.01.2009 at 11.45 a.m. but the said matter was informed to the complainant at 5.00 pm. while the referential letter was prepared on 4.00 p.m. on that day. We fail to understand as to why this matter shall not be informed to the complainant or the patient party at 11.45 a.m. while the condition of the patient was deteriorated. Therefore, we are of the view that the Learned District Commission has rightly held that the Doctor and the Nursing Home informed the patient’s condition to the complainant at 5.00 p.m. after a gap of 4½ hours but there was a gap of 4½ hours was not evident from the treatment sheet whereas at 4.00 p.m. a discussion with physician to transfer the patient to the Medical College has been mentioned in the treatment sheet but no official reference was made.

26. It is in evidence that after 5.00 p.m. the Doctor took decision for ventilation of the patient. Therefore, there was a delay in ventilation of the patient when critical condition of the patient was started at 11.45 a.m. We find that there was no explanation either by the Nursing Home or by the Doctor as to why the patient was ventilated at 5.00 p.m. Therefore, we find that the Learned District Commission has rightly held that “had the opposite party No. 2 taken decision at an earlier stage, the patient’s crisis would have been managed and her life could have been saved but opposite party No. 2 neglected in doing so.”

27. Learned Lawyer appearing for the appellants has urged that the Learned District Commission ought to have obtained an expert opinion and without an expert opinion the court cannot come to a conclusion as to negligence and as to the referral time or treatment protocol.

28. We fail to accept such contention of the Learned Advocate appearing for the appellants. We find in this case no expert was appointed and no expert opinion was called for. We think that expert opinion is not necessary in all cases where negligence and deficiency in service of a treating Doctor is established from the facts and circumstances of the case. In the present case before us negligence and deficiency in service on the part of the appellant as discussed earlier has been well established from the facts and circumstances of the case. Therefore, we have no hesitation to hold that the appellants were guilty of medical negligence and deficiency in service.

29. In Nizam Institute of Medical Sciences Vs. Prashanth S. Dhanuka reported in 2009 INDLAW SC 1047, the Hon’ble Apex Court observed that :-

“In a case involving medical negligence once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.”

30. Thus, we are of the view that the complainant / respondent has been able to prove that there was medical negligence on the part of the appellants. 

31. Under these facts and circumstances and on going through the materials on record we are of the view that the Learned District Commission properly considered the evidences, the facts and circumstances of the case and finally arrived at the conclusion and passed the impugned judgment, which, according to us, calls for no interference by this Commission, and as such, it is liable to be affirmed and the appeal is also liable to be dismissed.

32. In the result, the impugned order and judgment dated 26.09.2014 passed by the Learned District Commission in connection with complaint case No. CC/22/2009 is hereby confirmed.