C.F. CASE No. : CC/11/73
COMPLAINANT : Smt Kakali Dutta
W/o Sri Biswajit Dutta
of Jognath Tala
P.O. & P.S. Nabadwip,
Dist. Nadia
OPPOSITE PARTIES/OPs: 1) Sevayan Nursing Home,
Ramsita Para,
P.O. & P.S. Nabadwip
Dist. Nadia.
- Dr. Sushil Bhowmick,
Attached to Sevayan Nursing Home
Ramsita Para,
P.O. & P.S. Nabadwip,
Dist. Nadia
PRESENT : SHRI SHYAMLAL SUKUL PRESIDENT-IN-CHARGE
: SMT JHUMKI SAHA MEMBER
DATE OF DELIVERY
OF JUDGMENT : 09th July, 2012
: J U D G M E N T :
The present case has been instituted by one Kakali Dutta, a resident of Nabadwip, Nadia against Sevayan Nursing Home, alleging medical negligence.
The factual matrix of the case, in brief, are that on 04.07.11 at ‘0’ hours the complainant brought her grandmother, Niharika Pramanik, aged about 86 years to Sevayan Nursing Home, Ramsita Para, Nabadwip, Nadia with problem of respiratory trouble along with fever and chest pain. She was got admitted to the abovementioned Nursing Home under Dr. Sushil Bhwmick. Niharika Pramanik remained admitted there still 08.07.11. Dr. Bhowmick diagnosed Respiratory Track Infection and Chronic Obstructive Pulmonary Disease and treated her conservatively. The patient was kept under observation and she was recovering steadily. But on 07.07.11 the complainant came to Nursing Home and found that the oxygen cylinder was switched off and for that patient’s condition got worsened. She became angry and complained to the authority of the said Nursing Home. Immediately, Dr. Bhowmick attended the patient and gave management as usual. The patient recovered soon from the distress. Unfortunately, on the next very day at dawn the RTI of the patient revived again. Immediately, nabulizer was started. Oxygen and other medicines were also given. At about 6-30 am the condition of the patient improved considerably. Dr. Bhowmick then advised the complainant to shift the patient to a higher medical centre for further investigation and management. Accordingly, the patient was discharged on 08.07.11. Surprisingly, the complainant did not shift her grandmother / patient to higher medical centre rather she took her grandmother to her home and consulted a homeopath doctor. Ultimately, she breathed her last on 10.07.11. Being dissatisfied with the treatment of the aforementioned Nursing Home she filed a case alleging medical negligence before this Forum and prayed for reliefs as stated in the petition of complaint.
Being served, opposite parties 1 & 2 have filed their written versions denying averments of the complainant in so far as the negligence is concerned. In the written version it is stated that the OP No. 2, Doctor examined the patient, Niharika Pramanik in detail with due care and attention. He diagnosed the patient and treated her conservatively (with moist oxygen, inhalation, antibiotic, steroid and nabulization) that was approved by the medical science. Further, the OP No. 2, Dr. claimed that he followed the renowned medicine book authors ‘Harison & Davidson” in giving management to the patient. The sum and substance of defence of the OPs is that there was no medical negligence on the part of the OPs in matter of procedure and treatment and therefore, they are not liable to pay compensation to the complainant. Having no merit in the case the OPs pray for dismissal of the same and that too with cost.
The main points are raised for consideration in this case are:
(i) Whether the complainant proves negligence against the OPs as pleaded in the complaint?
(ii) To what relief the complainant is entitled?
DECISION WITH REASONS
The first point to be determined in the instant case whether the complainant’s grandmother, Niharika pramanik, died due to negligence of the OPs. Ld. Advocate for the complainant contends that it is a glaring example of utter negligence on the part of the OP, doctor to exercise his ordinary intelligence, competence rather he had not exercised common doctor’s prudence, intelligence and competence while treating her grandmother.
Ld. Advocate for the OPs submits that the patient, Niharika Pramanik aged about 86 years was brought to Sevayan Nursing Home in a critical condition with respiratory distress and chest pain. The OP, doctor immediately diagnosed the patient and treated conservatively, i.e., with moist oxygen, inhalation, antibiotic, steroid and nabulization. He further pleads that OP doctor followed the internationally renowned medicine book author Davidson [“Davidson’s Principles and Practice of Medicine”] in giving management to the patient. The ld. Advocate for the OP further submits that it is ridiculous to claim that the OP, doctor does not possess requisite skill in that branch of profession which he is practising while the OP doctor is an MBBS (Cal) and has been practising more than 40 (forty) years with fame. He also followed the medical ethics minutely. The bed head ticket reveals that proper treatment and attention was being given to the patient and when the condition of the patient needed specialized treatment she was referred to a “higher centre” i.e., well equipped hospital / nursing home. Accordingly, the patient was released on 08.07.2011 for further investigation and management and this suggestion was also written in the discharge certificate which was duly signed by the complainant, herself. Surprisingly, the complainant took her grandmother to her home and there she was treated under a homeopath doctor. This fatal decision cost her dear. Ultimately her beloved grandmother died on 12.07.11. In fact, the complainant is the architect of this tragedy. Due to her contributory negligence her grandmother died.
Ld. Advocate for the OPs further pleads and contradicts the complainant’s averment that the patient was not given oxygen, the corollary of that the patient died. He categorically denies that a patient of RTI and COPD aged 86 years was not given oxygen to come over her distress which is nothing but travesty of truth. It is an admitted fact that the patient was administered oxygen intermittently for the entire period during her stay at Nursing Home in a controlled manner. In this context the OP doctor strictly followed Davidson’s [Davidson’s Principles and Practice of Medicine, 19th Edition, page 512] prescription regarding oxygen therapy. The oxygen therapy runs thus: “use at least 15 hours / day at 2-4 litres / min to achieve PaO2 > 8 kPa without an unacceptable rise in PaCO2.” [Davidson’s Principles and Practice of Medicine 19th Edition, Page 512.
Ld. Advocate for the OPs further submits that in the instant case the complainant has failed to file any expert evidence to establish her case and in the absence of any expert evidence on behalf of the complainant as held by the Hon’ble National Commission in a case reported in 1 (1998) CPJ 110 (NC) it is not possible to conclude that OPs have committed any negligence, merely placing reliance upon the affidavit filed by the complainant, while she is not an expert in the field.
Moreover, in order to substantiate his case the ld. Advocate for the OPs has relied upon the following cases:
It was held by the Hon’ble Supreme Court in the judgment reported as Jacob Mathew v. State of Punjab & Anr., III (2005) CCR9(SC)=VI (2005)SLT 1=122 (2005) DLT 83 (SC)=III (2004) CPJ 9(SC)=AIR 2005 SC 3180 as under:
“A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one or two findings; either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.”
It was held by the Hon’ble Supreme Court in the judgment reported as Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Golbole & Anr., AIR 1969 SC 128 as under:
“The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding, whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care of competence judge in the light of that particular circumstances of each case is what the law requires. The doctor, no doubt, has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.”
It was also held by the Hon’ble Supreme Court in the aforesaid judgment as under:
“47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.”
It was also held by the Hon’ble Supreme Court in the aforesaid judgment as under –
When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”
Ld. Advocate for the OPs contends that the afore-mentioned observations of the Hon’ble Apex Court postulate that there is no medical negligence on the part of the OPs.
It is well settled that onus to prove medical negligence lies largely on the claimant and that the onus can be discharged by leading cogent evidence. “A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be proved. It is the obligation of the complainant to provide facta probanda as well as facta probantia [2009 CTJ 581 (Supreme Court) CP]. But in the present case the complainant has miserably failed to prove her case by adducing cogent and reliable evidence.
We have heard the ld. Advocates for the parties and gone through the materials on record including pleadings of the parties and also “Davidson’s Principles and Practice of Medicine” (19th Edition).
In view of the above discussion we are of the opinion that the case of the complainant bears no merit at all for which the complainant is not entitled to get any relief and the case is liable to be dismissed. Accordingly, it is
Ordered,
That the case is dismissed on contest without any order as to cost.
Let a copy of this judgment be delivered to the parties free of cost.
