JAGANNATH BAG, MEMBER

          This complaint case has been filed u/S 17 of the Consumer Protection Act , 1986, with prayer for direction upon the OPs to pay a compensation of Rs. 93,36,000/-  including punitive damages of Rs. 10,000/- and cost of litigation of Rs. 10,000/- on the grounds of negligence, deficiency in service and unfair trade practice on the part of the OPs .

          The Complainant’s son , aged about 26 years , was admitted in Serampur Surgical Nursing Home , being OP No.1, on 14.09.2010 at about 1.30 p.m because of unusual abdominal pain. On the advice of Dr . Milan Kumar (Krishna) Roy, being OP No. 2, who is also Director of the said nursing home, some medical tests were got done. An immediate laparoscopic surgery was advised as there was a mild appendicitis in the abdomen of the patient. After the operation, which was carried out by Dr. Rabin Mondal, being the OP No.3 , it was stated that the surgery was successful. But on the next day, i.e., 15.09.2010, the family members of the patient had noticed that the face of the patient was swollen and he had urinal obstruction. The family members of the patient requested the OP No.2 to have consultation  with a nephrologist, but they were asked not to worry as there was no big problem. On the same day , the patient told  his family members that he was managed to pass urine and he was injected by a nurse under supervision of one attending doctor and he vomited a bit . The patient was shifted to ICU on the same night due to sudden deterioration of his health condition. The family members were asked not to worry and they could meet the patient on the next date morning . On the next morning the family members came to the nursing home and saw that the patient was in ventilation.   As observed by the OPs the patient suffered from septicaemic shock as well as renal failure . Two injections namely 1. Genticyn (80 mg)  and 2. Amicin 500 were given without monitoring blood , urea and creatinine lavel without any consultation with a Nephrologist. On 16.09.2010 at about 11.55 a.m the OP No.2 declared that Manish Verma was dead and the death certificate showed the cause of death as Cardio Respiratory Failure due to septicaemic shock with multi organ failure. Allegedly, there was  clear negligence on the part of the OPs due to lack of skill and care. The conduct of  OP No.2 fell below the standard of a reasonably competent practitioner in the filed. The deceased Manish Verma was the only son of the Complainant who used to run a jewellery shop of his father, i.e., the Complainant. The entire family has been subjected to severe trouble because of the death of Manish Verma on account of wrong treatment as OP No.2 did not pay any heed to the request of the Complainant to consult a Nephrologists as well as to shift the patient to any better nursing home in Kolkata.  A sum of Rs. 93,36,000/- has been claimed to be paid apart from cost of litigation and punitive damage.

          Notices were duly served upon the OPs.

          The OPs have submitted a conjoint W.V. denying and disputing the material allegations. It has been  stated that OPs never neglected in their application of skill and knowledge. The OPs did not take a single rupee from the Complainant for the treatment of Manish Verma as the patient died. The death of Manish Verma was not due to careless and negligent act / treatment on the part of the OPs. It has been asserted that the patient was brought to the nursing home with a USG report from Rishra Medical Services and the patient complained about abdominal pain . The patient was examined and advised for appendectomy without delay. The patient being admitted in the nursing home underwent clinical examination and was investigated further . As the patient party agreed and executed necessary formalities like consent etc., an operation was planned on 14.09.2010. Necessary pre-operative investigations were done and results showed that his total leucocyte count on 14.09.10 was 12800 with a neutrophil percentage of 87 % . He had a serum urea of 28.65 mg % and serum creatinine of 1.01 mg % . So, his pre-operative urea and creatinine levels were absolutely within normal limits. His C- reactive protein was at a level of 58.55 . The patient underwent pre-operative preparation with intravenous fluids and antibiotics including a single 80 mg doze of injection Gentamicin.  It was further submitted that the Complainant never raised any question about the operation or the post operative treatment and care of the patient simply because they  understood that the OPs had no lapse  in the matter of death of the patient. The use of Gentamicin and Amikacin is made for suspected scepticemia as there was complete absence of any  clinical or biochemical evidence of renal dysfunction preoperatively . However, those drugs were stopped at the earliest sign of decreased urine output. It has also been emphasized that acute appendicitis is a surgical emergency requiring treatment by early operation. The treatment given to the patient by the OP doctor was proper and as per protocol as practiced everywhere in similar cases. There was no negligence or deficiency of service on the part of the OPs and as such the complaint petition is liable to be dismissed .

          The Complainant  filed affidavit of evidence , whereupon questionnaire being filed, the Complainant submitted their replies.  The OP also filed their evidence and the Complainant submitted questionnaire to which replies were furnished.

          Ld. Advocates appearing for both the Complainant and the OPs have been heard.

          Ld. Advocate appearing for the Complainant narrated the facts of the complaint as stated in the petition of complaint . It was argued by him that the origin of septicemia is the infection that emanated form the nursing home during the operation which was a clear deficiency on the part of the nursing home and in this regard , Ld. Advocate referred to the decision of the Hon’ble Supreme Court as reported in 2009, (9) SCC, 221.  It was also the lapse on the part of the nursing home as the patient was shifted to ICU in a delayed manner. The patient was shifted at  11.30. p.m on 15.09.10 . The adhock antibiotic treatment without culture sensitivity test of urine was serious renal failure.  The pus found in the pelvis of the patient caused not sent for culture sensitivity for determination of antibiotic . Without such determination , the OPs administered the injection Troyaxone Forta to the patient in empirical manner. In this regard lack of skill in diagnosis resulted in wrong treatment which was a  negligence. There was no post operative monitoring of the  patient particularly in regard to monitoring of pulse , BP , resp. , tem., in put /output chart ,ABG. Oxygen saturation of the patient were not done and what is very important in this regard is that no medical record was given by the OP Dr. Milan Krishna Roy. The patient had urine passing obstruction from the first day after the surgery . But no catheterization to combat non-drainage of urine was done . Whether the patient had septicemia or not could have been determined if a blood test called procalci tonin (PCT) is done on the patient. No confirmatory test with abdomen CT Scan was done. The medical negligence on the part of the nursing home was committed in taking no action on urinal drainage and also in having no consultation with medicine doctor and Nephrologist , though as per settled practice an expert should be consulted in case of doubt. Wrong medicines were applied  on the patient without monitoring blood urea createnine level. The infection in day one in post operative stage is another proof in regard to the medical negligence of the nursing home. The OP No.2 refused to contact the operative surgeon after the surgery on 14.09.10. This was an act of utter negligence  by the OP No. 2.  Further, no consent was taken for shifting the patient to ICU and putting him in ventilation. The nursing home authority did not allow the patient party to visit the patient as soon as they received the telephonic call informing that the patient’s condition suddenly deteriorated on 15.09.2010 at night . There was no record that the doctors had taken consent about putting the patient in ventilation. It was evident therefore that the nursing home had medical negligence , deficiency in service and unfair trade practice . Ld. Advocate referred to the case of  Dr. Balaram Prasad –vs- Dr. Kunal Saha reported in 2014 SCC and also the case of Reshmi Handa –vs- Otis Elivators Pvt . Ltd by the Hon’ble National Commission and pleaded for compensation of Rs. 93,36,000/- together with interest @ 9% p.a. from the date of death of the patient on 16.09.2010.

          Ld. Advocate appearing for the OPs submitted that there was proper treatment of the patient as per standard protocol with due skill , care and caution . There was successful operation and no problem was reported during the operation and recovery from anesthesia . It was only during post operation phase that the patient could not pass urine due to urinary infection for which he was treated with catheterization  of urinary bladder and passing of about 1 liter  of urine at 3 p.m on 15.09.2010. Subsequently , the patient developed fever and other complications which was considered to be germ negative septicemia . Higher generation antibiotics including injection fortasep , injection amakacin ( 500 ) mg and injection Zamacin were applied. There was no necessity for calling or consulting any Nephrologist . There was no clinical or biochemical evidence of renal dysfunction preoperatively. Since there was sign of decreased urine out put , the drugs were stopped. The allegations of  the Complainant about medical negligence has not been proved with any evidence or opinion of an expert which by itself is indicative of the fact that the allegation or grievances as made out by the Complainant emerged from  misconceptions or imaginary perceptions which had no basis. Ld. Advocate further submitted that the OP nursing home did not take any money from the Complainant against the cost of treatment of the patient which is tantamount to rendering service free of cost to the patient and the Complainant in such circumstances shall not be considered as a consumer against the O.Ps. The Complainant having failed to prove any allegation against the OPs, the complaint does not stand and the relieves as prayed for in the petition of complaint are frivolous in nature . The complaint is liable to be dismissed with cost.

          The points for consideration are as follows:

     1.Is the Complainant a consumer under the Consumer Protection Act ?

     2. Is there any negligence or deficiency in service on the part of the OPs?

     3. Is the Complainant entitled to the relieves as prayed for  in the petition of complaint ?

           The Complainant being the father of the deceased patient and having admitted his son to the OP Nursing home on payment of consideration and there being clear service provider and consumer relationship between the OPs and the Complainant , the Complainant is a consumer and the complaint is a consumer complaint as provided under the provisions of the Consumer Protection Act, 1986.

          We take up the other points together for the purpose of brevity of discussion and consideration as these points are interrelated .

          There is no denial that the Complainant’s son Manish Verma was taken to the OP No.1 nursing home with unusual abdominal pain and he was advised for some medical tests , the results of which led to the advice of OP No.2 for an immediate laparoscopic surgery . The OP No.3 conducted the operation and both OP No.2 and OP No.3 being doctors informed that the surgery of the patient was successful . The unusual look of the patient and also his suffering from urine passing obstruction prompted the patient party to request the attending doctors for advice of a Nephrologist, but such request was turned down with the assurance that the patient was keeping well. However, it took only a few hours for the patient to be taken to ICU which is said to have been caused by sudden deterioration of his health condition and the patient was declared dead at about 11.55 a.m on 16.09.2010. The cause of death was recorded to be cardio respiratory failure due to septicaemic shock with multi-organ failure.  It has been admitted by the OPs that Gentamicin and Amikacin being common drugs and widely used to control infection and with application of such drugs , there is no possibility of renal failure in respect of patient who have no history of kidney ailment.

          In their question No. 25 as put by the Complainant , the attending doctor was asked why he did not consult a Nephrologist inspite of clear signs of renal failure . The reply was that the report of urea and creatinine of blood was at such stage when the patient was at terminal stage counting minutes and went beyond any treatment protocol.

         Such opinion of the attending doctor does not fit in with the actual situation in so far as the need for consultation with a Nephrologist could be perceived at an early stage of urine obstruction of the patient during the post operative period. By their question No. 29 , the Complainant wanted to know how he (Dr. Mrinal Roy) could treat the patient all by himself without any specialized doctor. The reply was that a team of specialized doctors treated the patient all through. But the fact goes that there is no mention of such specialized doctors taking care of the patient and the apprehension of the Complainant that it was for utter negligence of the OP No.2 and the absence of specialized doctors that proper treatment could not be extended to the patient.

           Ld. Advocate appearing for the Complainant drew our attention to the texts of several medical  literature on the subject of  use of Gentamicin injection which has been described  as cause of acute renal failure ( ARF) and a more gradual transient and reversible azotemia . Further, such medicine is said to have side effects on the kidneys.

          It would be pertinent to take note of the questions put on behalf of the OPs to the Complainant as follows:

          Question  No.  7  I say that it is not correct that Nephrotoxic medicine was given to the patient - what do you say ?

          Reply by the Complainant     It is indeed correct  that Nephtotoxic drugs were given to the patient without a valid reason in the most unscientific manner.

          Question No.8   Do you have any document to show that Gentamicin (80 mg) and Amikacin fall in the category of Nephrotoxic drug ?

          Reply  Yes, I have many medical documents obtained from medical journal to show that Gentamicin and Amikacin fall in the category of Nephrotoxic Drug . Even I have documents to prove that this two medicines are fatal to renal failure if proper blood work , kidney function test and other laboratory parameters of the body are not closely monitored in a scientific manner. I would like to show the documents to testify these two medicines are Nephtotoxic drugs during hearing.

         Question No. 9  I say that  the medicine Gentamicin ( 80 mg) and Amikacin 500 are not Nephrotoxic drugs- what do you say?

         Reply   It is not correct that Gentamicin and  Amikacin are not Nephrotoxic drugs .  

         The questions put on behalf of the OPs suggest that the OPs particularly, the OP No.2 , has serious doubt or little knowledge as to whether Gentamicin and Amikacin fall in the category of Nephrotoxic drug.

          There have been on record several copies of medical literature showing that Gentamicin may be highly Nephrotoxic. Renal side effects are associated with the drug in two forms  acute renal failure ( ARF ) and a more gradual transient and reversible Azotemia .

          It is on record, as admitted by the OP, that no Nephrologist was attached with the nursing home but hiring of services of a Nephrologist could be considered by the  OP No.2 particularly in the context of the Regulation No. 2.4 of the Indian Medical Council ( Professional Conduct, Etiquette and Ethics ) Regulations , 2002 which reads as follows

          The patient must not be neglected  A physician is free to choose whom he will serve . He should , however, respond to any request for his assistance in an emergency.

          In the present case, there was clear refusal by the OP No.2 in respect of the request of the patient party to consult a Nephrologist  keeping in view the serous condition of the patient .

           In view of the above discussion we are of the view that there was negligence on the part of the OP No.1 and also the OP No.2 in particular. The Complainant has proved his case and we are inclined to hold that the complaint should succeed .                

          Ld. Advocate referred to the judgment of the Hon’ble Supreme Court  in Civil Appeal No. 5402 of 2010 wherein the negligence and deficiency on the part of the OPs were established with proof and compensation was allowed .

          In the present case, it appears that the OP No. 1,  nursing home, as well as the OP No.2,  being the consultant surgeon of the said nursing home were entirely responsible for operation of the appendicitis of the Complainant’s son i.e., Manish Verma, aged about 26 years . It is on record that no Nephrologist was consulted in spite of request of the patient party including the Complainant . The deficiency in service caused the death of the young son of the Complainant . The death of the patient was just premature and it is true that such death can not be really compensated for in monetary terms . It is a loss for the parents for ever and any amount of money is not sufficient for such loss which could have been averted if there was due care and treatment at the hands of the OPs. It is not enough that the OP No. 1 and 2 did not receive any money for the treatment extended to the patient who died prematurely and it is also not enough that the sum of Rs. 12,000/- was refunded to the Complainant , such amount having been received as advance  against the cost of treatment at the time of admission.

           The Complainant has cited two cases, namely, judgment of the Hon’ble Supreme Court in Civil Appeal No. 8065 of 2009  allowing a sum of Rs. 1,38,00,000/- to the Complainant as a matter of compensation and Rs. 42,87,921/- towards medical expenses and another case as decided by the Hon’ble Supreme Court of India in Civil Appeal No. 2641  of 2010 directing the Respondent to pay the Appellant/Complainant , the amount granted in his favour by the District Forum.

          In the present case , it is  a fact that the deceased son of the Complainant died at the age of 26 only and the Complainant has submitted a revised estimate in regard to the compensation in view of the latest Apex Court’s Authority in the case of Dr. Balram Prasad –vs- Dr. Kunal Saha where life expectancy is said to be 70 years , the amount of compensation has been assessed towards loss of income including future possibilities ( Rs. 12,000 X 12 X 44 ) = Rs. 63,36,000/- apart from other reliefs including compensation for pain and suffering during treatment , damages on account of loss of deceased by his parents, punitive damage and cost of litigation.

          We are, however, constrained to hold that though monthly income of Rs. 12,000/- has been stated to be the basic figure for calculation towards income against future possibilities , there is no material on record that such monthly income was earned by the deceased son of the Complainant. In that case , we find it prudent to quantify the loss against future possibilities at an amount of Rs. 30 lakh as compensation.

          Going by the above discussion we are  inclined to hold that the complaint may be allowed with cost and compensation against OP Nos. 1 and 2, while OP No.3 having not been proved to be deficient in service , the complaint may be dismissed against the said OP. Hence,

                                      Ordered

That the complaint be and the same is allowed on contest against OP Nos. 1 and 2 . The OP No.1 and OP No.2 shall jointly and / or severally pay the sum of Rs. 30 lakh to the Complainant as compensation and Rs. 20,000/- as cost of litigation. The entire amount shall be paid within 40 days from the date of this order to the Complainant , in default whereof, the entire amount shall attract penal interest @ 10 %p.a. from this date till final payment.

      Free copies of this order maybe supplied to the parties as per rule.