State Consumer Disputes Redressal Commission
Dr. Supriya Maithy vs Basudev Maitra on 24 October, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/856/2017 ( Date of Filing : 07 Aug 2017 ) (Arisen out of Order Dated 23/05/2017 in Case No. Complaint Case No. CC/101/2010 of District Burdwan) 1. Dr. Supriya Maithy Asansol Sub Divisional Hospital, Asansol Sub Divisional Hospital Complex, S.B. Garai Road, Asansol - 1, Dist. Burdwan. 2. Dr. Tapas Sen (Anesthetist) Upper Chalidanga, Asansol, Dist. Burdwan. 3. Asansol Medical Centre Pvt. Ltd. Service through R.M.O, Asansol Medical Centre Pvt. Ltd., Lower Chalidanga, Asansol, Dist. Burdwan. ...........Appellant(s) Versus 1. Basudev Maitra S/o Sourindra Mohan Maitra, presently at 308, S.N. Banerjee Road, A - Zone, Durgapur - 4. 2. Smt. Tanushree Maitra W/o Basudev Maitra, Maitra, presently at 308, S.N. Banerjee Road, A - Zone, Durgapur - 4. 3. Chief Medical Officer of Health Office - Office of Chief Medical Officer of Health, Burdwan. 4. Asansol Sub Divi. Hospital Service through Medical Officer, Asansol Sub Divi. Hospital Complex, S.B. Garai Road, Asansol - 1, Burdwan. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER For the Appellant: Mr. Abhik Kumar Das , Ms. Koyeli Mukhopadhyay, Mr. A. Sengupta, Advocate For the Respondent: Mr. Debasis Mitra, Advocate Dated : 24 Oct 2019 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT This appeal has been directed against the judgment and order dated 23-05-2017 passed by Ld. DCDRF, Burdwan in CC/101/2010 where Ld. DCDRF while disposing of the said complaint case allowed it on contest against the OPs no. 1 to 3, dismissed on contest against OP no. 4 dismissed exparte against the OP no. 5 held the OPs no. 1 to 3 jointly and severally liable to pay compensation to the tune of Rs. 2 lakh to the complainant for mental agony, harassment and unfair trade practice to be paid within 45 days from the date of the order with default clause.
Being aggrieved by such judgment and order dated 23-05-2017, the present appeal has been preferred by the OPs no. 1 to 3 of CC/101/2010 (hereinafter referred to as the OPs for convenience of discussions).
Briefly stated the case of the respondents no. 1 and2/the complainants no. 1 and 2 (hereinafter referred to as the complainants) that one Abhra Maitra, their 28 year old son met with a road traffic accident in the midnight of 04-02-2007 and he was admitted to the Asansol Sub-divisional Hospital in the morning of 05-02-2007. Hearing the news of such accident the complainants/parents of the victim rushed to Asansol Sub-divisional Hospital and on reaching there they found that the doctor/appellant no. 1 was in charge of treatment of the patient while the parents met the doctor to know the condition of the patient, they were told by the doctor that immediate surgical treatment of the patient was necessary for the patients survival but that operation was not possible at the Asansol Sub-divisional Hospital as it was lacking of proper infrastructure and it was suggested by the doctor/appellant no. 1 that he could conduct such operation properly at the Nursing Home (OP no. 3) provided the patient was shifted to the said Nursing Home after getting the patient released from the Hospital on Personal Risk Bond and to get him admitted at the OP no. 3. As per advice of the doctor the patient was released from the Hospital and got him admitted at the OP no. 3 / Nursing Home on 05-02-2007 but the operation of the patient could take place on 08-02-2017 at 2:30 p.m. and at about 7:30 p.m. the OP no. 2/Anesthetist told the patient party to see the patient who was then unconscious and the doctor treating the patient hurriedly left the Nursing Home and thereafter within 30 minutes he came back and declared that the patient was dead. The complainants claimed that the patient was shifted to the Nursing Home from the Hospital at the instance of the treating doctor who advised such shifting for unlawful gain though the doctor was fully aware that the Nursing Home was not fully equipped with proper infrastructure for conducting such operation. The OPs were negligent in treating the patient and the OPs were guilty of deficiency in providing service to the patient and they were also guilty of unfair trade practice. The complainants alleged that the doctor reported the patient party that cardio respiratory failure was the cause of death but it was stated to them at the initial stage that fat embolism was the cause of such death. The complainants further claimed that the OPs no. 4 and 5 were impleaded in this case for effective adjudication of the instant case though no relief was claimed against them but the complainants claimed compensation for medical negligence, deficiency in service as well as unfair trade practice against the OPs no. 1 to 3 to the tune of Rs. 4,60,000/- and other consequential reliefs, if any.
The OPs no. 1 to 3 i.e. the appellants no. 1 to 3 herein (and hereinafter referred to as the OPs no. 1 to 3for convenience of discussion) filed separate written versions to contest the complaint case and contended that the complaint case was not maintainable in law. Denying and disputing the cause of action as averred in the body of the petition of complaint, the OP no. 1 admitted that the patient was admitted to the Asansol Sub-divisional Hospital as he met with a road traffic accident in the midnight of 04-02-2007 and he was under his treatment at the initial stage of treatment. Denying and disputing all the allegation as averred in the body of the petition of complaints, all the contesting OPs categorically denied negligence in treating the patient or they were lacking in giving proper service or they were guilty of practiced "unfair trade practice". The OP no. 1/doctor in his written version admitted that he treated the patient by undertaking surgery following established norms and at about 8:30 p.m. on 08-02-2007, while he got the news of condition of the patient he immediately rushed to the Nursing Home, brought the patient to the Operation Theatre and took Appeal possible steps to save the patient but his all efforts went in vain as the patient died due to 'fat embolism'. Further denying and disputing all the material allegations against them these appellants ultimately prayed for dismissal of the complaint case.
Upon consideration of the rival pleadings of the parties Ld. DCDRF allowed the petition of complaint in part and directed the appellants herein to pay a sum of Rs. 2 lakh for mental agony, harassment and unfair trade practice and litigation cost of Rs. 5,000/-, to be paid within 45 days from the date of the order, as noted in the earlier part of the judgment.
Now the point for consideration is - whether Ld. DCDRF was justified in passing the order, as noted above.
The factual aspects of the matter with regard to inquiry of the patient Abhra Maitra in a road traffic accident dated 04-02-2007, admission of the patient at the Asansol Sub-divisional Hospital under the OP no. 1 Dr. Supriya Maity, shifting of the patient to the Nursing Home, the OP no. 3 for better management of the patient after being released on personal risk bond etc. are not disputed. It is also admitted that the patient breathed his last on the OT of the Asansol Medical Care Centre Pvt. Ltd. (the appellant no. 3 herein). Now we have to decide whether the doctors treating the patient at the Nursing Home (appellant no. 3) were negligent in treating the patient and whether there was deficiency in giving service to the patient or any sort of unfair trade practice on the part of the appellants herein.
Ld. Counsel for the appellants in course of his argument drew our attention to the course of treatment of the patient and tried to impress that Fat Embolism Syndrome (FES) resulting cardio respiratory failure was the cause of death of the patient, trauma victim. Drawing our attention to the literature on the subject he pointed out that swift diagnosis and treatment of fat embolism are paramount for ensuring the survival of a patient and to advance his argument he placed reliance on the experts report (Annexure-E), as asked for by Ld. DCDRF in CC/101/2010 and a relevant part of the observation of expert in determining the question in controversy is quoted below:- "At 8:20 p.m. patient's respiration became irregular with feeble pulse and BP was non-recordable. Patient put on moist oxygen inhalation with Inj. Lycortin 1amp. IV stat with another dose of lycortin at 8:40 p.m. when pulse was not palpable and non-recordable BP. At 8:45 pm. respiration also became feeble and patent was attempted resuscitation by Ambu bag ventilation with cardiac massage and condition of patient explained to party. At 8:55 p.m. patient's respiration became more feeble and failed to respond oxygen and ventilation, cardiac massage continued. At 9:15 & 9:20 p.m. on both occasions, all peripheral pulse were not palpable, pupils were fixed, dilated, non-reactive to light. Patient had been declared dead at 9:20 p.m. and party was informed.
In my opinion, the operative procedure chosen correctly for the injury as interlocking nailing considered the standard treatment for fracture in shaft of femur. The pre-operative investigations were properly advised with blood transfusion for hemodynamic stability prior to operative procedure undertaken. It may happen, in occasions cardio-pulmonary shock and embolism as complications to nailing procedures for fracture shaft femur per and postoperatively. The life saving resuscitation measure were done appropriately to save the patient. It may happen many times, even after a sincere and honest attempt taken by the doctor to save the patient from this type of post operative complication may turn futile. It seems Dr. Supriya Maiti was present throughout the postoperative period and the complication that happened was beyond his control but he with his team tried their best to save the patient. In spite of sincere effort of doctor; unfortunately the patient Mr. Abhra Maitra succumbed to death".
If the experts' opinion with regard to treatment of the patient is taken into consideration it can be concluded that the doctor/OP no. 1 and his team tried their best to save the patient who could not survive due to the reasons which were beyond the control of the medical team. In this context placing reliance on the decision of the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab and another (reported in (2005) 6 SCC 1) we feel it proper to hold that the standard of this medical practitioner was not below that of a reasonably competent practitioner, as noted in the expert's report and we do not raise any doubt about the sincerity of Dr. Supriya Maity, the appellant no. 1 in the surgical treatment of the victim and hold the appellants no. 1 and 2 not guilty of medical negligence.
So far as the deficiency in service and unfair trade practice are concerned Ld. DCDRF in its judgment dated 23-05-2017 held the following :- "Regarding unfair trade practice on the part of the OP no. 1, Doctor for shifting the patient from OP no. 5, Hospital to OP no. 3, Nursing Home, it is evident from the Enquiry Committee report submitted by OP No. 4, CMOH, Burdwan that OP No. 5, Hospital had the similar facility which is also in the OP no. 3, Nursing Home for treating the deceased patient i.e. OP no. 1, Doctor should have not provoked the complainants to shift their son in another Nursing Home, OP No. 3, which the complainants alleged that OP No. 1, Doctor had the intention of more monetary gain in treating the patient at OP No. 3, Nursing Home. It is also evident from the later treatment by the OP No. 1, Doctor when the patient was after operation in very serious condition from where it is seen that the patient was put into oxygen musk and made manual massage of the heart to regain the patient's consciousness which indicates that the OP No. 3, Nursing Home has no facility of ICCU or ventilation which the patient needed badly at that time. This is, advice by the OP No. 1, Doctor to shift the patient from OP No. 5, Hospital to OP No. 3, Nursing Home does not stand for any better treatment at OP No. 3, Nursing Home. It shows clearly that there is some malafide intention to gain more monetary profit by provoking patient party to shift their patient at OP No. 3, Nursing Home. It is clearly unfair trade practice".
Fact remains the patient was admitted to the Asansol Sub-divisional Hospital immediately after the accident and the appellant no. 1/Dr. Maity instigated the patient party to get him admitted at the appellant no. 3/Nursing Home in the name of proper treatment of the patient as it was not possible at the Hospital for lack of proper infrastructure. The DCDRF in its finding held that the CMOH, Burdwan in his report categorically claimed that the Asansol Sub-divisional Hospital was properly equipped with the infrastructure needed for this patient's treatment. It is brought to our notice that the appellant /OP no. 3 did not have ICU facility and other proper infrastructure for treating the patient at the said Nursing Home. When the patient was released from the Hospital on personal risk bond and was admitted at the Nursing Home under the same doctor who was treating the patient at the Hospital, we find reasons to believe unless the patient party was not instigataed by the appellant no. 1/Doctor, the patient would not have been released on personal risk bond and we find further reasons to hold that the appellants were in collusion with each other got the patient released from the Hospital for getting him admitted of the Nursing Home for unlawful gain without caring for proper treatment of the patient.
If we consider the observation of Ld. DCDRF in the given facts and circumstances of the case as noted above we are of firm opinion that Ld. DCDRF came to the legitimate conclusion of 'unfair trade practice' and we are unable to take a different view over this issue particularly when the report of the CMOH regarding the facilities available in the hospital was suppressed before us in this appeal and we further held that Ld. DCRF did not commit any mistake in allowing the petition of complaint accordingly. Hence, we dismiss the appeal, affirm the judgment with a finding that the appellants were guilty of 'deficiency in service' and 'unfair trade practice', affirm the order impugned and direct the appellants to comply with the order of Ld. DCDRF within 60 days from the date of this order i.d. to pay interest @ 10% p.a. from the date of this order till its realization. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER