08/08/16

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

These are the two Appeals bearing no.FA 633 of 2012 preferred by the doctor and FA 453 of 2012 preferred by the Nursing Home against the judgment and order passed by the Learned District Forum, Cooch Behar in case no.CC 37 of 2011 allowing the complaint with cost of Rs.10,000/- against the OPs jointly and severally with the further direction to pay compensation of Rs.3,50,000/- to the Complainant on account of causing death of the husband of the Complainant, mental agony and sufferings caused to her and family within 45 days failing which interest @ 8% p.a. would be assessed over the entire decretal amount till realisation.  It has further been directed that if the OPs fail to comply with the order in that case the OPs jointly and severally have to pay a sum of Rs.100/- per day to be deposited with the SCWF.

The case of the Complainant/Respondent, in short, is that her husband Late Shankar Ghosh had been suffering from prostate gland pain and visited the chamber of the OP No.1 who advised operation of the prostate gland and, accordingly, he was admitted in the OP No.2 Nursing Home on 14/02/11 to undergo an open surgery.  The operation was done, but on the next day at about 5 a.m. the condition of the patient deteriorated and the doctor on being informed examined the patient and told that the patient was suffering from gastric problem and there was nothing to be worried.  But on 15/02/11 in the afternoon the condition of the patient became serious and the catheter channel was blocked.  One unit of blood was transfused.  The blood was oozing out of the surgical wound.  The doctor was informed who examined the patient and told that there was nothing to be worried.  On 16/02/11 the condition of the patient further deteriorated and at about 3 p.m. the doctor examined the patient and suggested for transfusion of blood (O+).  It came to the notice of the relatives of the patient after half bottle of blood was transfused in the body that blood group of A+ was transfused in place of O+.  The relatives of the patient informed the Nursing Home Authority and the Nursing Home Authority in consultation with the doctor changed the ample of blood and replaced it, but in the meantime almost half bottle of wrong group of blood was transfused to the patient and the patient became unconscious within a very short time.  On 16/02/11 at 5.45 p.m. the doctor suggested to inject 20 injections through saline and thereafter the condition of the patient became very serious.  The doctor thereafter referred the patient to Paramount Nursing Home, Siliguri for better treatment.  Ultimately the patient expired when he was at Pundibari on way to Siliguri.  There was gross negligence on the part of the Nursing Home Authority.  Under such circumstances, the complaint was filed before the Learned District Forum. 

The Learned Counsel for the Appellants has submitted that blood was duly transfused and it was supplied by the patient party and the patient party took the patient from Cooch Behar to Siliguri.  It is contended that no expert opinion was given by the Complainant and there is no evidence to show that standard medical norm was not followed by the surgeon.  It is contended that there was no deficiency in service on the part of the Nursing Home and the doctor denied the allegations in the evidence-in-chief as raised by the Complainant.

The Learned Counsel for the Respondent/Complainant has submitted that    the Learned District Forum relied upon some documents and was justified in passing the impugned judgment.  It is contended that no PSA test was done.  It is submitted that dialysis was required, but it was not done and the preoperative tests were also not done.  It is submitted that the Nursing Home had no adequate medical facility or infrastructure for the treatment of such patient and the postoperative renal failure was not improving.  It is contended that the conservative treatment made by the OP Doctor failed to manage the complications and when the situation became out of control the patient was referred to Paramount Nursing Home, Siliguri. 

We have heard the submission made by both sides and perused the papers on record.  As regards the allegation of wrong transfusion of blood of A+ in place of O+ it appears from the medical papers filed that on 14/02/11 O+ blood was requisitioned and the date of expiry of the bottle was 10/03/11.  The medicine chart also shows that O+ blood was mentioned therein.  There is nothing on record to show that there was wrong transfusion of blood and as a result thereof the condition of the patient deteriorated. 

As regards the alleged negligence in conducting surgery and postoperative complications the doctor has stated in the evidence-in-chief that in a case of prostate operation, that is, after removal of prostate gland as per medical norms and procedure the operated place was guarded by irrigation method, that is, sending fluid to wash out the operated area to prevent clot formation through catheter in one way and by other way the returning fluid is drained which ought to be blood stained in early postoperative method.  It has been further stated that on 16/02/11 he examined the patient at about 6.30 p.m. on being called and it was found that the patient was having shortness of breath and diminished urine output and, accordingly, he treated the patient and referred to a physician Dr. P. K. Sinha Sarkar (MD) who also examined the patient and supported the medicine already administered and some emergency blood tests were also done from which it revealed that the kidney function was deteriorating and the patient was referred by the OP Doctor as well as Dr. P. K. Sinha Sarkar to a higher centre having Nephrology Unit.  It has been stated that gradually the patient was seen developing acute renal failure and not improving with conservative treatment.  From the treatment sheet it also appears that Dr. P. K. Sinha Sarkar, Physician also examined the patient and it was explained to the patient party that the urine volume diminished to a critical level and, as such, dialysis was required.  From the treatment sheet it also appears that on 16/02/11 at 7.20 p.m. the patient was referred to higher centre.  In the decision reported in I (2016) CPJ 70 (NC) [Mukhthyar Singh vs. Kasturi Devi Munshi Lal Mahila Evam Shishu Charitable Hospital] it has been held that referring the patient is not negligence.    There is nothing on record to show that the doctor deviated from the standard medical protocol and there was deficiency in service on the part of the Nursing Home.  The allegations raised in the complaint have not been proved and the Learned District Forum was not justified in allowing the complaint and passing the impugned judgment.

Both the Appeals are allowed.  The impugned judgment is set aside.  The petition of complaint is dismissed.  This judgment will govern both the Appeals as stated above.