Both the two appeals RBR/A/36/2018 and RBR/A/28/2018 are directed against the same judgement and final order delivered by Ld. DCDRF Dakshin Dinajpur in CC NO. 36 of 2017. One consumer complainant Mitranath Roy Choudhary registered a consumer complaint over the allegations of medical negligence against (1) Dr. Debashish Swain (2) proprietor of Jiban Joti Nursing Home (3) The proprietor of Annubikhsan Diagnostics Centre. The said consumer dispute was contested by all the three Ops of this case and Ld. Forum has delivered the judgement on 28/03/2018 directing the Op No. 1 and 2 to pay compensation 17,28,000 jointly and severally and rupees 20 thousands as litigation cost jointly and severally within 30 days to the complainant. Dr. Debasish Swain/the Op No. 1 has filed the appeal No. RBR/A/36 2018 and Jiban Jati Nursing home/the Op No. 2 has filed the appeal no. RBR/A /28 /2018. Both the appeals were heard analogously on consent of all the contesting parties and for that reason the two appeals are here by disposed of by delivering a single judgement covering both the cases.

The fact of the case in nutshell is that the wife of the complainant one Hira Roy Choudhary since deceased was admitted at Fulbari Nursing home with problems of Gall Bladder stone called as “Coholecystectomoy” and discharged on 24/03/17 under the care of Dr. SN Chanda. On 24/03/17 he was admitted at Gangarampur Sadar Hospital where some medical test was conducted and on advice of Dr. SN Chanda, the complainant came to contact with Dr. Debasish Swain and under the advice of Dr. Debasish Swain the patient Hira Roy Choudhary was discharged from hospital on 30/03/17 and got admission at Jiban Jyoti Nursing Home under the care of Debasish Swain on 2/04/17. After performing all the necessary tests the gall bladder stone was operated on 3/04/17 at Jiban Jyoti Nursing Home and after the operation the condition of the patient started deteriorating gradually due to anyone or all of the following source of contamination viz preoperative preparation of the patient/ contaminated operation theatre and apparatus/ improper operation and post-operative medication and care and she was affected from sepsis and acute kidney infection and understanding the fault and gross negligence on the part of the Dr. Debasish Swain and the nursing home authority, they shifted the patient to Malda Medical College without taking proper approval of the complainant or the patient party. The complainant was called by the nursing home and he was reported that his wife already sifted to Malda medical college and hospital as her condition was severely deteriorated. On 03/04/2017 he rushed to the Malda medical College and hospital and found his wife was admitted there in uncared condition and her health was gradually deteriorating. Then he was compelled to shift his wife to Dishari Health Point at Malda on 4/4/2017 but due to such sepsis and acute renal failure and acute kidney problem she breathed her last at Dishari Health point on 6/4/2017.

 According to the complainant, the death of Hira Roy Choudhury was due to negligence on the part of Dr. Debasish Swain, the Nursing Home and the investigating diagnostic center, OP no. 3 Anubikhsan Diagonistic Centre. The Dr. D Swain as OP no. 1 has contested the consumer case by filing the WV, and he denied all the material allegations levelled against him regarding medical negligence on his part who in her version categorically stated that he is an well reputed renowned general surgeon having degree of M.S. has rendered the medical treatment to the patient Hira Roy Chowdhury with sincerity and taking good care and he medically examined the patient and suggested to conduct the gallbladder operation of the patient in skillful manner and he applied all his expertise for holding the said operation and applied proper antibiotics just before the operation and took prevent from any intra-operative or post-operative sepsis and the entire operation was done by  applying the standard sterilization process and all the necessary precautions was taken before going into the surgery of the patient and during the time of dissection of said operation it was found that gallbladder of the patient was acutely failed. The fundus of gallbladder was open and the stone were removed from the gallbladder. After operation the operated abdomen was closed in lairs and best attention was provided to the patient after the operation and post-operative methods was properly applied but after operation due to some uncertain reason, the blood pressure of the patient was started to fall and when the condition deteriorating the nursing home authority  for better management of treatment after taking prior concent of the patient party, has shifted the patient to the Malda Medical College and hospital. So, the  doctor and the nursing home authority had no fault on their part and the patient was not died in their institution.

 According to the op no 1 the case was found to be fabulous one and intended to squish some money for illegal gain, motivated by the complainant . The Dishari Nursing home that is op no 2 has contested the case by filling a WV and according to the nursing home the proper medical service was rendered to the patient . There was no negligence on the part of the nursing home authority and they should not be responsible for unfortunate death of Hira Roy Chowdhory who was died subsequently at Malda Dishari nursing home. The OP no 3 also has contested  by filing the WV and stated that besides some medical tests this authority have no connection with the treatment of the patient and this op no 3 has no liability for medical negligence on their part.

The complainant  in support of the case has filed number of medical documents and also examined himself as witness in this case by swearing the affidavit in chief. Dr. Debasish Swain was examined as op no 1. The nursing home authority has been examined as OPW 2 through its proprietor Krishnandu Tokeder. On the part of op no 2 admission sheet, treatment sheet, pre anesthetic checkup, anesthesia chart, BP test and other documents and inquiry report of West Bengal Clinical Establishment was produced before the Ld.  Forum. Ld. Forum after hearing both sides, has delivered the implunged judgment which is challenged in the two appeals on the ground that the findings of ld. Forum in reference to the consumer complaint was not legal and correct one and liable to be set aside. Both the appeals was registered before the Hon’ble State Commission, Calcutta.

Thereafter, the appeals was reassigned here for disposal. All the respondents of the two appeals has contested the appeal through their Ld. Advocates and that appeal was heard in presence of Ld. Legal representatives of both sides.

Decision with reasons,

Admitted position is that Hira Roy Choudhry with Gall bladder stone problem first admitted at Fulbari Nursing home, and thereafter she was shifted at Gangarampur Hospital under the care of Dr. SN Chandra. During the course of treatment, dr. Chandra was on leave and for that reason, he referred the patient Hira to Dr. Debasish Swain for a treatment. Under the Advice of Dr. Debesish Sawin, the patient party got discharged the patient from Ganga Rampur hospital on 30/03/2017 and patient Hira got admission at Jiban Jyoti nursing home under the care of Dr. Debasish Sawin. Dr Debasish Sawin arranged some medical investigation through op no. 3 Anubikhan diagnostic centre and there after conducted the surgical operation of gall bladder stone of Hira at Jiban Jyoti nursing home on 03/04/2017. But after the operation, the condition of patient seriously affected from sepsis and UKI and finding no other alternative, for better management of treatment and to save the life of the patient shifted the patient at Malda Medical College and Hospital. But the treatment of the patient at Malda medical college was not up to the mark and condition of the patient became too serious. And ultimately, she was shifted to Dishari Health centre of Malda on 4/4/2017 and in that nursing home the patient has breathed her last on 06/04/2017. The patient party has considered that the operation theatre was not properly sterilized and for that reason the patient at the time of surgical operation was affected with sepsis and that the apparatus of the surgery applied in the surgical operation was contaminated and no pre-operative preparation was there on the part of the Doctor and the medical authorities which ultimately caused the death of a middle aged lady which was very unfortunate due to the result of sheer negligence on the part of the attending doctor and nursing home authority. The defence case is that the nursing home authority and the attending surgeon has applied full expertise facilities as per condition of the surgery and rendered proper medical care to the patient but such ATI and sepsis the patient has developed due to some unknown cause beyond the knowledge of the doctor.  They had no gross negligence on their part. In this case after death of the patient Hira Roy Choudhury the complainant Mitra Nath Roy Chowdhury has filed an application against the doctor Debasish Swain and the proprietor of Jiban Jyoti Nursing home on account of medical negligence on their part  at the time of conducting the treatment and surgical operation of patient Hira Roy Chowdhury  before the adjudicating authority of WB clinical establishment regulatory commission where an enquiry was conducted and in presence of all concern parties by the adjudicative authority where it was not established that death of the patients Hira Roy Chowdhury was held due to negligence on the part of the surgeon doctor Debasish Swain and the Jiban Jyoti nursing Home. But in the concluding portion of the finding of the adjudicating authorit, it is established that dr. Debashish Swain and nursing Home Authority was asked to take care for the development of monitoring and super vision system of sterilization procedure at OT and related instruments. The enquiry report also speaks that the cause of death of Hira Roy Chowdhury was the result of sepsis and with ARI at the time surgical operation of cholecystctony and in the said nursing home there was no system to monitor to post operation problems and  proper sterilization procedure at OT and related instruments and so it was difficult to the enquiring authority to conclude whether sterilization procedure in the nursing home was up to the mark or not. During the course of hearing Ld. Advocate of the appellant in both the cases mentioned that the patient had died at Dishari Health Point Malda where no post-mortem was held to ascertain the actual cause of the death of the patient and for that reason the appellant Dr. Debasish Swain and the Jiban Jyoti Nursing Home should not be blamed for the unfortunate death of the patient. Ld. Advocate of the appellants of both the appeals further mentioned that the complainant was trying to blame on the Op without any basis and his allegation that the patient was died due to Sepsis and ARI has no documentary proofs. The said allegations was fake, hypothetical and concocted one.

It is further argued that on the same day or previous and succeeding dates Dr. Debasish Swain has operated many patients in the said Nursing Home and none of them were affected in Sepsis or other illness. The nursing home has autoclay machine including drum and all the equipment and materials and instruments was sufficiently provided and the Doctors and Nurse attached to the same OT was properly sterilized and the OT was also sterilized separately prior to the said surgical operation. The Ld. Advocate of the appellant in both this appeals has referred to a judicial decision reported in 2009 {supreme court cases} (1) In Martin F Dsouza vs In Martin Mohammad Ishfaq where it was held that the courts and consumer forum are not experts in medical science and therefore they should not substitute their own views over that of the specialists. As Doctors doing duty with reasonable care would not incur liability  even if their treatment failed. He further referred another judicial decision of honourable supreme court in CA no. 6168 of 2008 where it was held that when a Doctor follows the normal practice of treatment acceptable to the medical profession for that day cannot be held liable for negligence merely because a better alternative course or methods of treatments was also available. In another supreme court case referred here by the appellant in Jacob Mathew Vs State of Punjab case where the honourable court has opined that a private complaint may not be entertained unless the complainant has produced vital evidence before the court in the form of expert opinion given by another competent Doctor to support the charge of rashness or negligence on the part of the accused Doctor. In another judicial reference was sited by the Ld. Advocate of the appellant in two appeals that the consumer protection act does not always make the doctors liable for medical negligence if the doctor adopted higher element of risk with Bonafide expectation of better chances of success but higher chances of failure although not yielding desired result may not amount to negligence.

2010 {Supreme court cases 480}

Ld. Advocate of the appellant further submits that in the case of medical negligence the opinion of experts is fundamental regarding the ascertainment of the cause of death of patient and any lack on the part of complainant in this regard discard the allegation of the consumer complaint. Ld. Advocate of the respondent of two cases counter this argument by pointing out that the clinical establishment regulatory authority has categorically opined that proper sterilization process was not adopted in the Jiban Jyoti nursing home at the time of operation of the patient and the nursing home authority was cautioned to take proper care in future for upgradation of their OT with installing sterilized apparatus for holding treatment of the patient is suffice enough in this case to prove that the sepsis and AKI developed to the patient after post operation of gall bladder stone is beyond any doubt and this negligence speaks itself to proof in ordinary course and no further opinion of expert is required in such circumstances.

After hearing both sides and after going through the judicial decisions referred by the parties to this case this commission finds that it is case of a res ispa loquiter as because the report of the adjudicating authority of west Bengal clinical establishments act 2007 and their observations by the medical board constituted under the said authority had clearly emphasized in their report that the OT of Jiban Jyoti Nursing home and their apparatus which was used in the surgical operation of patient Hira Roy Choudhary was not up to the mark and the sterilization procedure was not properly adopted and for that reason the deceased Hira Roy Choudhary was effected by sepsis and URI along with UKI. At last she has to left the world permanently due to negligence on the part of the operating Dr. Debasish Swain and proprietor the Jiban Jyoti nursing home.

So, the finding of the Ld. Forum in this respect are found to be convincing one and does not invite any interference in this appellate forum. Considering all aspects both the appeals are hereby disposed of with a finding that the appeals has no merit at all to challenge the judgement and final order delivered by the Ld. Forum.

Hence it is,

Ordered

That the appeals bearing no. RBR/A/28/2018 and RBR/A/36/2018 are hereby dismissed on contest without any cost.

Let the order be supplied to the parties free of cost and also to be sent to the LD. DCDRF, Dakshin Dinajpur by e-mail.