HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER
This Appeal u/s 15 of the Consumer Protection Act, 1986 is directed by the OPs assailing the judgment and order dated 21.07.2015 passed by the Ld. District Consumer Disputes Redressal Forum, Siliguri, in Consumer Case No. 104/S/2010, directing the OPs to pay jointly and severally by Account Payee Cheque, within 45 days from the date of the order, to the Complainant Rs. 25,000/- which was paid by the Complainant for treatment, Rs. 12,00,000/- as compensation for personal suffering, Rs. 2,00,000/- for mental agony and Rs. 25,000/- for litigation cost. The OPs were also directed to pay interest @ 9% per annum for the period from the date of appearance of the OPs before the Ld. District Forum till the date of payment in full.
The brief facts of the case, as emerging from the materials on records, are that the wife of the Respondent/Complainant was admitted on 16.6.2010 at 2.00 p.m. to the Appellant No. 1/OP No. 1-Clinic under the treatment of the Appellant No. 2/OP No. 2-Doctor with complaint of fever, loss of appetite, abdominal pain and burning micturition as the ‘Treatment Continuation Sheet’ dated 16.6.2010 of the Appellant No. 1/OP No. 1-Clinic reveals. In course of the treatment the condition of the patient concerned did not improve. Ultimately, the wife of the Respondent/ Complainant expired on 21.6.2010 at 1.30 p.m., the cause of death being Cardiac arrest, Septicaemia, Acute Respiratory Distress Syndrome (ARDS), Type-2 Respiratory failure, Uncontrolled diabetes and Hypertension as the ‘Death Certificate’ dated 21.6.2010 of the Appellant No. 1/OP No. 1-Clinic reveals. It is alleged in the Petition of Complaint that the OPs did not provide proper and diligent medical service to the patient concerned as it owed to the patient and such failure on the part of the OPs resulted in the damage being expiry of the patient concerned. With this factual matrix the Complainant moved the Complaint concerned before the Ld. District Forum which passed the order in the aforesaid manner. Aggrieved by such order the OPs have preferred the instant Appeal.
The Ld. Advocate for the Appellants/OPs submits that the Ld. District Forum passed the order impugned without any basis of proof, but on the basis of presumption, and hence, the order is improper and erroneous.
The Ld. Advocate adds that the Ld. District Forum has failed to consider the failure of the Respondent/Complainant to establish his case with cogent evidence.
The Ld. Advocate further submits that the expert-opinion relying on which the Ld. District Forum passed the order impugned, does not appear to be conclusive, and hence, the Ld. District Forum passed the order improperly.
The Ld. Advocate continues that the patient concerned had been suffering from Diabetes Mellitus – 2 for a long period of time and hence, the patient was vulnerable to infection, which contributed to the deterioration of the condition of the patient concerned.
The Ld. Advocate adds that for no favourable response to a standard treatment given, the Doctors cannot be held liable for medical negligence. In this connection, the Ld. Advocate has referred to the decision of the Hon’ble National Commission in Garlapati Kameshwara Rao & Anr. Vs. Kinnera Super Speciality Hospital, reported in 2016 (4) CPR 569 (NC).
The Ld. Advocate concludes that the aforesaid submissions clearly indicate that there is no medical negligence on the part of the Appellants/OPs and hence, the instant Appeal should be allowed and the impugned judgment and order be set aside and the Complaint concerned be dismissed.
On the other hand, the Ld. Advocate for the Respondent/Complainant submits that from the time of admission the patient concerned was not given due care by the Appellants/OPs as is indicated from the opinion of the expert, in expert-report dated 9.4.2012 together with cross-examination statement of the expert dated 26.6.2013, to the effect that ‘double anti-biotic’ should have been applied to the patient concerned from ‘day one’, but the same was not applied by the Appellants/OPs-Doctors.
The Ld. Advocate continues that non-administration of Insulin of 20 units on 18.6.2010 at 7.45 p.m., when the sugar-level of the patient was 459mg/dl, as is confirmed by the expert in his expert report dated 9.4.2012, also indicates lack of proper medical care to the patient on behalf of the Appellants/OPs-Doctors.
The Ld. Advocate also submits that the failure of the Appellants/OPs-Doctors in ascertaining the value of FiO2 and PaO2, which is related to tissue oxygenation to confirm the diagnosis of ARDS of the patient, also indicates the breach of duty of the Appellants/OPs-Doctors as they owed to the patient concerned.
The Ld. Advocate further submits that diagnosis of Septicaemia which is infection itself from which the patient was not suffering, instead of Septic which is body’s inflammatory reaction to severe infection from which the patient was suffering, also indicates medical negligence on the part of the Appellants/OPs-Doctors.
The Ld. Advocate concludes that the aforesaid deficiency in service on the part of the Appellants/OPs-Doctors and Clinic, as is corroborated by the independent expert-opinion dated 9.4.2012 together with cross-examination statement dated 26.6.2013, clearly establishes medical negligence on the part of the Appellants/OPs-Doctors and Clinic concerned and hence, the instant Appeal should be dismissed with cost and the impugned order be affirmed.
Heard both the sides appearing, considered their respective submission and perused the materials on records.
The written version filed by the Appellant No. 2/OP No. 2-Doctor before the Ld. District Forum concerned, as available on records, reveals that the Appellant No. 2/OP No. 2-Doctor, under whom the critical patient concerned was admitted, did not attend to the patient concerned after 6.30 p.m. on 16.6.2010, i.e. at the time of emergency of the patient concerned, thereby indicating that the Appellant No. 2/OP No. 2-Doctor did not discharge the duty he owed to the patient at the time of need of the patient concerned. In this context, relevant is the reference to the decision of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr., reported in (2005) 6 SCC 1, wherein it was held that ‘breach’ of duty of the doctor concerned, as in the case on hand, is one of the constituents of medical negligence.
The expert-opinion dated 9.4.2012 along with cross-examination statement dated 26.7.2013 which appears to be unchallenged by the OPs before the Ld. District Forum, exhibits that ‘double anti-biotic’, which the condition of the patient required on the date of admission, was not applied to the patient concerned. The said expert –opinion also exhibits that Insulin of 20 units was not administered, as per standard medical protocol, to the patient on 18.6.2010 at 7.45 p.m. when the sugar level of the patient was 459 mg/dl.
The said expert report further exhibits that the value of FiO2 and PaO2 , which is required to confirm the diagnosis of ARDS, was not done. Furthermore, the Appellants/OPs-Doctors did not advise for Procalcitonin Marker Test to confirm Sepsis of the patient concerned.
The aforesaid evidence of expert-opinion clearly indicates that the Appellants/OPs-Doctors are liable for ‘breach’ of duty they owed to the patient concerned and the ‘resultant damage’, being the constituents of medical negligence, as was held by the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (supra). In this connection, the decision of the Hon’ble National Commission in Usha Lakshman & Ors. Vs. Dr. N.Chandrashekar & Anr., reported in 2016 (1) CPR 794 (NC) is also relevant.
As the Appellants/OPs-Doctors are liable for breach of their duty, so the Appellant/OP No. 1-Clinic is also vicariously liable for deficiency in service on its part. In this connection, the decision of the Hon’ble Supreme Court in Smt. Savita Garg Vs. the Director, National Heart Institute, reported in (2004) 8 SCC 56 is relied upon.
The aforesaid facts, observation and expert-opinion lead to the conclusion that the Appellants/OPs are liable for breach of duty and negligence on their part and resultant damage caused by them and hence, the order impugned does not deserve any interference by this Commission.
Consequently, the instant Appeal is dismissed and the impugned judgment and order is affirmed. No order as to costs.
