SHYAMAL KUMAR GHOSH, MEMBER

1. The instant appeal has been preferred against the order impugned dated 06/08/2018 passed by the ld DCDRC, Kolkata, Unit – lll (South), Alipore in connection with CC case being no-550/2017 wherein the ld Trial Commission dismissed the same on contest without any order as to costs. Being aggrieved and dissatisfied with such order the instant appeal has been preferred by the appellants/complainants praying for setting aside the order impugned dated 06/08/2018.
2. The brief fact of the case is that on 08/10/2016 at about 10 AM the father of the complainants had been suffering from respiratory problem and as such the patient was brought into Swiss Park Nursing Home at Tollygunge, Kolkata-700033 for necessary treatment. But unfortunately the authority of the said nursing home informed the patient party that there was no such doctor to attend the patient immediately. Thereafter the said patient was further brought into opposite party no – 1, nursing home. At the time of admission, the authority of the said nursing home asked for the patient party to deposit of Rs.20,000/- immediately and accordingly they deposited the same. At about 12.20 PM on 08/10/2016 the patient was admitted in the said nursing home for treatment. After few minutes, the op no – 2/Dr. S.S.Basu informed that their father’s oxygen inhaling capacity had been increased from 32% to 95% within 5 to 10 minutes and asked for the patient party to endorse signature upon consent for mechanical ventilation in case of emergency. At about 5 pm on the self same day the patient party visited the op no – 1/ nursing home and found the patient dead. The patient party was very surprised on seeing the aforesaid unexpected event. The matter was immediately informed to the ops/doctors and nursing home but they failed to provide proper and reasonable answers. The said nursing home had no infrastructure to provide proper treatment to the father of the complainants. It was very surprised that the said op/nursing home took all charges after the death of the patient and it was very painful situation that the patient was staying at the aforesaid op no – 1 nursing home for couple of hours. No proper treatment was given to the patient at the said nursing home. The ventilation facility should be given to the patient as the patient had been suffering from respiratory problem but no ventilation support was given to the patient in order to save the life of the patient. The patient died due to only negligence on the part of all ops. Subsequently, the patient party lodged an FIR at Charu Market Police Station. Complainants demanded compensation of Rs.10,00,000/- by sending a letter dated 03/04/2017 through the ld advocate Mr. Sanat Kumar Pal. There is a clear gross negligence or fault on the part of all ops and accordingly the complainants rushed to the door of the Commission for getting proper reliefs as prayed for.     
3. The ops 1 to 3 contested this case by filing written version stating inter alia that the present complaint is not maintainable and is liable to be dismissed summarily on the ground that the complainant did not file any expert opinion and as such said event makes the complaint bad in eye of law.  It is crystal clear that the patient was taken to Swiss Park Nursing Home and there was no bed in the ICCU and as such the patient could not be admitted in the said nursing home. The said incident was occurred at about 10 AM. Thereafter, the patient was taken to the op no – 1/ nursing home at about 12.15 PM. The valuable time of 2 hrs 15 min was already expired due to fault and callousness on the part of complainants. No proper treatment was provided to the patient during this particular time period. The delay in treatment always causes permanent damages and the patient was brought to op/nursing home with respiratory distress with de-saturated condition, bilateral pedal edema, lower respiratory tract infection and arrhythmia and on admission under op no – 2/doctor, the patient was advised for routine blood test, chest X-Ray, ABG, Ryles tube, catheter, nebulisation, foracost BD, inj Tazact 4.5 IV TDS and referred to Dr. Jyotisko Paul, specialist consultant, who was expected to examine the patient during the night round but the condition of the patient was deteriorating from 1.30 PM with hypertension and desaturating was started from 3.45 PM. That very moment decision of intubation and ventilation were taken. While doing intubation the patient suffered from cardiac arrest. In spite of repeated CPR and IV atropine, adrenalin sodium bicarbonate infusion the CPR heart sound peripheral pulses could not be identified. As heart was non functional and peripheral pulse was absent, there was no justification medically to put the patient ventilation in order to provide lung support. Resultantly, the patient died at about 5 PM. The ops further stated that the authority made several attempts to contact with the relatives but the patient party was not present at that point of time. However, the matter was informed thereafter and the said fact was signed by one Basudev Saha, brother of the patient and Pritikona Saha, sister of the patient.
4. Thereafter, the patient party created such a situation so that the op no – 2 lodged a complaint at Charu Market Police Station on the self same date and  a case being no – 2125 was initiated against Basudev Saha and others under sections-341/323/427/114 of the Indian Panel Code. It is also stated that on 08/10/2016 was the day of Mahasaptami of Durga Puja and most of the staffs were on leave and as such computer generated bills could not be provided to the patient party. Instead of computer generated bills, hand writing bills were provided to the patient party. Under such circumstances, the complainants took the plea of gross negligence and deficiency in service on the part of the ops. At this stage by filing written version the ops clearly argued that mere providing of handwriting bills to the patient party does not cause any gross negligence and deficiency in service on the part of ops.
5. The complainants have failed to prove any negligence on the part of the ops by producing any cogent evidence. It is the duty of the complainants to establish their case by filing cogent evidence. Mere oral submissions do not constitute the negligence on the part of ops. Accordingly the ops prayed for dismissal of the consumer case with exemplary costs.   
6. In course of hearing the ld counsel appearing for the appellants/complainants drew our attention to the observations of ld DCDRC and pointed out that the ld Trial Commission completely ignored and overlooked the materials and documents on record while passing the impugned order mentioned above. Besides the detail submissions regarding allegations against the ops clearly stated in the petition of the complaint, Ld counsel also submitted that no discharge certificate was issued at all. No CD was supplied/placed before the ld Trial commission. Accordingly, the ld counsel prayed for setting aside the order impugned dated 06/08/2018 passed by the ld Concerned Trial Commission.
7. The counsel appearing for opposite parties/respondents argued more or less same views clearly enumerated in the written versions filed by the ops. The ld counsel further submitted that the distance between the Swiss Park Nursing Home and OP no – 1/Nursing Home is just 5 min and as such the complainants were negligent in providing timely hospitalization when they were well aware that the patient was suffering from respiratory problem and immediate ICCU care was required. The patient party failed to provide history of co-morbidities like sugar, pressure etc. The ld counsel also argued that the complainant failed to prove any negligence on the part of the opposite parties by adducing cogent evidence. The ld counsel further argued that the patient had suffered from cardiac arrest wherein the chance of survival is very low as per medical data. The death of the patient due to cardiac arrest was unfortunate but the same was beyond control of the opposite parties. The ld counsel added that all standard medical protocol was maintained in order to provide life support to the patient. But they failed which does not constitute the gross negligence and deficiency in service on the part of ops. Accordingly the ld counsel prayed for dismissal of the instant appeal with exemplary costs.
8. We have heard the ld counsels for both sides at length and in full.
9. We have considered the submissions of both sides.
10. We have perused materials avaiable on record meticulously.
11. It is fact that on 08/10/2016 at about 10 AM the complainants’ father viz. Naren Chandra Saha alias Naren Saha was suffering from respiratory problem and the patient was taken to admit at Swiss Park Nursing Home. Due to non-availability of any bed of ICU/ICCU, the complainants were not in a position to admit the patient at the said nursing home and at last the patient was admitted in OP no – 1/Nursing Home at about 12.20 PM on the self same date ie 08/10/2016. From the written version as well as brief notes of argument submitted by the opposite parties, it is very clear to us that the distance between the two nursing home is only just 5 minutes, but the patient was brought to OP no - 1/Nursing Home after expiry of 2 hours 20 minutes causing delay in admission of the patient.
12. The aforementioned fact clearly proves that the complainants were well aware regarding the condition of the patient but they caused delay in hospitalization of the said patient and as such the condition of the patient turned into very serious and ultimately the patient passed away. At this stage we find lack of seriousness on the part of the complainants in respect of choosing better Hospital/Nursing Home with the facility of ICU/ICCU for the sake of providing medical support to the patient. 
13.  We have carefully perused the doctor’s treatment sheet/doctor’s continuation sheet dated 08/10/2016 at 12.20PM to 5.00PM wherefrom it appears to us that on several occasions the doctors attended the patient and provided the necessary treatments. On the self same date at about 3.45 PM it comes to know that the doctors suggested for urgent intubations, nebulisation and ventilation in order to provide life support to the patient as the condition of the patient was deteriorating gradually and at that time SPO2 of the patient was shown as 78%.
14. On the self same date at about 4.10PM intubation was started but at that time BP and SPO2 of the patient both were not recordable causing clear symptom of sudden cardiac arrest of patient. At that very moment doctors rightly suggested for CPR (Cardio Pulmonary Resuscitation) and the said process was already started and subsequently IV Atropine, Adrenalin Sodium Bicarbonate infusion were also started. In this respect ld counsel appearing for the Ops submitted a medical journal (Cardiac Arrest-Wikipedia) wherefrom it appears to us that cardiac arrest is when the heart suddenly and unexpectedly stops beating. It is a medical emergency that without immediate medical intervention will result in sudden cardiac death within minutes. The said journal also states that in some cases, cardiac arrest is an anticipated outcome of serious illness where death is expected. Actually as per medical terminology cardiac arrest is synonymous with clinical death and as such the treatment for cardiac arrest includes immediate CPR.
15. The aforementioned medical journal further states that “in the event that cardio pulmonary resuscitation is successful, complete recovery is not guaranteed as many survivors experience an array of disabilities, including partial paralysis, seizures, difficulty with walking, speaking or memory, limited consciousness or persistent vegetative state and brain death.”
16. The doctor’s continuation sheet clearly reveals that at about 4.15 PM, BP and SPO2 both were not recordable, but the doctors tried to provide the life support to the patient as the CPR was continuing. Patient party was called for at that moment but they did not receive the calls. At about 4.30PM it is found that the process of CPR was continuing. But unfortunately at about 5.00 PM patient was declared DEAD.
17. From the aforementioned scenario, it is very clear to us that in spite of repeated CPR and IV Atropine, Adrenalin Sodium Bicarbonate infusion, the CPR heart sound peripheral pulses could not be identified. As the heart was non-functional and peripheral pulse was absent, there was no justification medically to put the patient in ventilation in order to provide lung support. So mere non-placement of the patient in ventilation, upon careful observations of the patient, should not obviously constitute any fault, gross negligence or deficiency in service on the part of Ops. Under such circumstances, there is no hesitation to hold that the Ops followed all accepted medical protocol in order to save the life of the patient and in this respect we can safely rely upon BOLAM VS FRIEN HOSPITAL MANAGEMENT COMMITTEE (KNOWN AS BOLAM TEST) REPORTED IN 2005 3 CPR 70 (SC) wherein the Hon’ble Apex Court held that a doctor is not guilty of negligence if he has acted in accordance with a practice so accepted by a responsible body of medical men skilled in that particular art. Hon’ble NCDRC, in this respect, held that every medical fatality does not indicate negligence on the part of treating doctor (RESHMA DEVI JADAV AND OTHER VS DR. (MRS) REETA BAGCHI AND OTHERS reported in 2016 1 CPR 557 NC).  
18. Now we turn into another point of law. Whether there is any fault or negligence on the part of the Ops or not, in this respect no cogent evidence or expert opinion was produced before the Trial commission concerned. Not only that the complainants never prayed for any independent medical expert report to prove their consumer case. It is settled principle of law that the burden of proof lies upon the complainant/s to prove his/their case. In this respect we rely upon Sri AJIT KUMAR ROY VS DR. AMITABH MISHRA, IN REVISION PETITION BEING NO – 3068/2010 wherein the Hon’ble NCDRC held that the petitioner should have produced some cogent, convincing and plausible evidence to show that the doctors were negligent at any time. Apprehensions cannot take the place of proof. Hon’ble NCDRC further held that it is also surprising to note that no expert was examined by the complainant to prove that the treatment as undertaken by Dr. Amitabh Mishra and other doctors at the nursing home was wrong and proper diagnosis was not administered by Dr. Amitabh Mishra. The absence of any cogent and plausible evidence has brought this case to a brink of precipice. Regarding this point we can rely upon another remarkable case law viz. Ramesh Chandra Agarwal vs Regency Hospital Ltd. others reported in (2009) 9 SCC 789 wherein the Hon’ble Apex Court held that there is a need to hear an expert opinion where there is a medical issue to be settled. Section – 45 of the Evidence Act speaks for expert evidence. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. But it is very sorry to say that the complainants, in this respect, failed to produce the same before the concerned Trial Commission in order to prove their case.
19. So far as the allegation of medical negligence on the part of Ops is concerned we may note that the Hon’ble Apex Court as well as Hon’ble NCDRC in a catena of decisions consistently held that negligence cannot be attributed to a doctor so long he performs his duties with reasonable skill and competence as it was done in the instant case and it is the bounden duty and obligation of civil society to ensure that the medical professionals are not necessarily harassed or humiliated so that they can perform their professional duties without any fear and apprehension and to work for the welfare of the patients which is paramount consideration for the medical professions.
20. Considering all aspects from all angles and keeping in mind the present position of law and regard being had to above referred case laws and submission of both sides, we are of opinion that there is no such wrong, error or mistake in passing the order impugned and as such we are constrained to dismiss the instant appeal on contest without any order as to costs and to affirm the order impugned passed by the ld Trial Commission concerned.
21. The aforesaid order is passed in favour of the opposite parties/respondents and against the complainants/appellants.
22. Hence the instant appeal stands disposed of.
23. Note accordingly.
24. Let a copy of this order be transmitted to the concerned Trial Commission for compliance and for necessary action.