State Consumer Disputes Redressal Commission
Sri Rabindra Nath Poddar vs Colombia Asia Hospital on 10 June, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/203/2016 ( Date of Filing : 06 May 2016 ) 1. Sri Rabindra Nath Poddar AA 7/5, Deshbandhu Nagar, Baguiati, P.S. Baguiati, Kolkata- 700 059. 2. Smt. Anulekha Poddar(Tiwari) AA 7/5, Deshbandhu Nagar, Baguiati, P.S. Baguiati, Kolkata- 700 059. ...........Complainant(s) Versus 1. Colombia Asia Hospital Salt Lake, Kolkata, 1B - 193, Sector-III, Salt Lake, Kolkata - 700 091. 2. Sunaya Ghosh 1B - 193, Sector-III, Salt Lake, Kolkata - 700 091. 3. Oenindri Dutta 1B - 193, Sector-III, Salt Lake, Kolkata - 700 091. 4. Another name not Known 1B - 193, Sector-III, Salt Lake, Kolkata - 700 091.(Stands deleted as per order No-8, dt. 06/02/2018) ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER PRESENT: Dated : 10 Jun 2022 Final Order / Judgement SAMISKHA BHATTACHARYA, MEMBER
The instant complaint case has been filed by the complainants against the OPs alleging medical negligence and deficiency in service on the Part of the OPs.
The facts of the case in brief are that the complainants are husband and wife and Tanvi Poddar is their minor daughter aged about 6 months at the time of filing this case. The OP No. 1 / private hospital and OPs No. 2, 3 are the nurses attached to OP N. 2 hospital and they have been working in the hospital for the monetary gain. The OP No. 4 is also a nurse and unknown to the complainants. The complainants prayed for expunging the name of OP No. 4 and the prayer was allowed vide order no. 8, dated 06.02.2018. On 28.02.2016 at about 11:54 P.M. Tanvi Poddar, five months daughter of the complainants, was admitted in OP NO. 1/ hospital as an indoor patient in Bed No. 502A for severe cold and cough with breathing problem against monetary consideration under Dr. Soumitra Dutta. Dr. Dutta examined the patient and prescribed medicine for Tanvi Poddar. The complainants have annexed the prescription as Annexure - A with the petition of complaint. Smt. Kanika Poddar, grandmother of the child/patient stayed all along beside the bed of the Tanvi Poddar with the permission of the hospital authority. The Op Nos. 2 and 3 were on duty as nurses of the hospital for Tanvi and other patients. At late night the OP No. 2 administered Grilinctus Syrup to Tanvi Poddar who cried out and started vomiting after that. Then Smt. Kanika Poddar called OP No. 3 who after query accused OP No. 2 for administering wrong medicine to Tanvi Poddar as the said medicine was prescribed for Smt. Prasanti, a patient of the next bed. The Syrup, being Batch Number K15087 and the date of manufacture December, 2015, was seized by the South Bidhannagar Police Station. Later on Smt. Kanika Poddar verbally complained to the hospital authority and reported her daughter-in-law (complainant no. 2) over phone. The hospital authority ascertained from Dr. Soumitra Dutta that he did not prescribe the alleged syrup i.e. Grilinctus Syrup for Tanvi Poddar. The OP No. 1 pumped out the medicine, administer wrongly by OP No. 2 carelessly and negligently. Thereafter, Tanvi was in very much distressed condition. On getting information of the incident the media came to the hospital/OP No. 1 at about midnight of 28/29 February, 2016 and recorded the conversation of OP NO. 1 and took snap of the patient. The incident was broadcasted in two channels on 29.02.2016. On 01.03.2016 the complainant no. 2 lodged the F.I.R. at South Bidhannagar Police Station against OP No. 1 and the case was registered being no. 40/16, under section 337/34 of IPC and. Reportedly, the Grilinctus Syrup was seized by the Police. On 02.03.2016 the patient was discharged by OP No. 1. The complainant no. 1 paid Rs. 1,000/- through his credit card and also paid Rs. 10,000/- by cash for the purpose of admission of his child daughter. The OP NO. 1 realized Rs. 32,712/- as the medical expenses for Tanvi Poddar from the complainants' insurer, the New India Assurance Company. The complainants had alleged that OP No. 1 is guilty for deficiency in service for negligence of the duty nurse/OP No. 2. The complainants were subjected to harassment and mental agony for the negligence on the part of OP Nos. 1 and 2. Hence the application praying for direction upon OPs to pay compensation of Rs. 25,00,000/- and litigation cost of Rs. 1,00,000/- to the complainants for causing physical harassment and mental agony.
OP No. 1 appeared before this Commission and filed their written version. In their written version firstly they have mentioned that the complaint is not maintainable in law and is liable to be dismissed summarily for the reason that the Hon'ble Supreme Court has specifically let down in the judgement in 2009 (1) CPJ 32 (SC) that before admitting a complaint, the complaint ought to have been referred for opinion of medical expert of specialized field before further proceeding in the matter particularly in the instant case which deals with onchology and is still a subject under research. The complainants have not filed any expert opinion in this matter. The medical issues involved in this case is of complicated nature and therefore without any evidence of medical expert of specialized filed it would not be possible for the State Commission to decide the matter and further voluminous evidence is to be recorded. Since the Consumer Forum, being created for summary trial, the present case is liable to be dismissed. The complainants have not disclosed any cause of action and this case has been filed only to malign the reputation of OP No. 1 hospital. Since the case is of very highly technical nature, the State Commission ought not to exercise the jurisdiction in the matter and relegate the complaint to civil court. The case involves complicated question of facts and the expert evidence is to be adduced. The present complaint is absolutely bad and liable to be dismissed in limini for non joinder of parties as the patient was treated by consultant doctors. The hospital of its own can never recommend any medicine, test or treatment protocol. Therefore, the case is liable to be dismissed with cost for not making the consultant doctors as parties.
In their written version OP No. 1 has also stated that on 28.02.2016 at around 11:54 P.M. the patient was admitted with complaints of cough and cold for one week with bout of severe coughing. Immediately the patient was examined in the emergency roomand was admitted under Dr. Soumitra Dutta. The parent of the patient was allowed to stay with the patient being minor. The standard treatment as advised by the consultant was followed. Injection Augmentin , Paracetamol, Nebulisation and other supported therapy was provided. On 28.02.2016 the attending nurse due to human error had given 3 ml. syrup Grilinctus to the patient which was realized immediately after administration. The consultants were informed for this error and as advised immediately stomach wash was performed to the patient and the entire contents of the stomach was removed and a sterile wash was given. The patient was observed closely after the stomach wash and no abnormality was detected. The condition with regard to cough and cold was improved satisfactorily and accordingly the patient was discharged on 02.03.2016 in an absolute stable condition. Other allegations were denied by the OP No. 1. Hence, the OP No. 1 has prayed for dismissal of the complaint with cost since the complaint is harrasing in nature and it is filed only to malign the reputation of OP No. 1.
Notices were served upon OPs No. 2 & 3 by way of paper publication. But none appeared on behalf of OPs NO. 2 & 3 nor filed any written version. Therefore, the case was proceeded exparte against OPs No. 2 & 3.
Ld. Counsel for the complainant has submitted that the complainants' daughter (hereinafter referred to as 'patient') aged about 5 months (at the time of admission) has been suffered with cold and cough with breathing problem. There is no dispute that OP No. 2, being the nurse of OP No. 1, administered Grilinctus syrup to the patient instead of giving the syrup to the patient of the next bed. The patient started vomiting and it was informed by the grandmother of the patient to the hospital authority and the hospital authority washed the stomach of the baby followed by sterile wash and the patient was in stable condition after that stomach wash. Ld. Counsel for complainant has submitted that for administering the wrong medicine the patient suffered and it could be fatal for an infant. From the conduct of the OP No.1 it is evident that OPs are deficient in service and hence, the petition of complaint filed by the complainants.
Ld. Counsel for the OP No. 1 with all fairness submitted before us that there is no dispute that the Grilinctus syrup was administered to the baby and after noticing it with all care OP No. 1/hospital authorities took the necessary measure and washed the stomach of the baby and sterile wash was given thereafter. The OP No. 1 has admitted that it is not mentioned in the prescription to administer the Grilinctus syrup by the treating doctor. The incident took place due to human error and the attending nurse was given 3 ml syrup only. The Ld. Counsel for the OP No. 1 also stated that the Grilinctus syrup is a combination medicine that helps to loosen thick mucus, making it easier to cough out. This makes it easier for air to move in and out. It will also relieves allergy symptoms like watery eyes, sneezing, running nose or throat irritation and help you carry out your daily activities more easily. This medicine is safe and effective. It usually starts to work within a few minutes and the effects can last up to several hours. The patient never suffered adversely during her stay in the hospital or subsequently after the release of the patient from the hospital. So, it is clear that for the human error of the attending nurse there is no physical suffering. The Grilinctus syrup is a combination medicine used to treat cough and it thins mucus of the nose, wind pipe and lungs making it easier to cough out. It also provides relief from running nose, watery eyes and throat irritation. As the patient was suffering from cough and cold for one week with bout of severe coughing intermittently the administration of the same may not cause any complication to the patient but may have benefitted the patient.
Ld. Counsel for the OP No. 1 has cited the judgement passed by Hon'ble Supreme Court in Ravneet Singh Bagga Vs KLM where the Hon'ble Apex Court had upheld the observation of the Hon'ble NCDRC where it held that :
" On perusal of the whole record we are of the opinion that the respondents could not be held guilty of deficiency of service entitling the complainant for compensation as claimed by him. It is true that for unforeseen reasons and suspicious circumstances not attributable to the complainant he had been subjected to great harassment and mental torture but it is equally true that for those circumstances none of the respondent was guilty. Despite holding a belief that they were not responsible for any deficiency in service respondent had already tendered unconditional apology to the complainant and paid him token compensation."
Upon submission of both the parities and on perusal of the record , it is admitted fact that the complainants' daughter was admitted to the OP 1 hospital on 28.02.2016 at 11.54 p.m. with complaints of cough and cold for one week with bout of severe coughing intermittently.
There is no denial that the patient was initially examine in the emergency room by the emergency medical officer and thereafter the patient was admitted under Doctor Soumitra Dutta. Since the paiti9ent was minor, one of the parent was allowed to stay with the patient.
The standard treatment as advised by the consultant was followed. Accordingly injection Augmentin, paracetamol, nebulizer and other supportive therapy were provided.
It is also admitted fact that on 28.02.2016, the attending nurse of the OP 1 hospital had given 3 ml Grilinctus syrup to the patient which was immediately realized after administration.
On realization of the wrong administration of the Grilinctus Syrup the consultants were informed and as advised immediately the stomach wash was performed to the patient by which entire content of the stomach was removed and the sterile wash was given. The patient was observed closely after the stomach washand no abnormality was detected.
The condition with regard to the cough and cold was improved satisfactorily and accordingly the patient was discharged on 02.03.2016 and the patient was in stable condition.
From the above noted facts, it is admitted fact that 3 ml Grillinctus syrup was given to the patient wrongly by the nurse of the OP 1 hospital and the hospital authority washed the stomach of the baby immediately thereafter. From the documents it is evident that no Grillinctus was prescribed by the consultant doctor for the patient. Moreover, in the discharge summary dated 02.03.2016 issued by the OP hospital it is noted in the column Course in the hospital in following manner :
"Course in the hospital :
Patient was admitted and was started with IV fluids, INJ Augmentin, Paracetamol and other supportive therapy, nebulisations given with Levolin and Ipravent Respules.
Blood sent for relevant investigations.
Baby was reportedly given Syr Grillinctus Approx. 3 ml by mistake. She was given a stomach wash immediately, was monitored closely. No Abnormalities found in the vitals. Baby gradually improved. Became afebrile, active, started taking feeds well.
She was discharged in the stable and afebrile condition"
It is not denied by the OP No. 1 that the Grilinctus syrup has several side effects. The argument on behalf of the OP No. 1 is that since there was no physical suffering of the patient the case is not tenable in the eye of law. But we are of the view that if it is so, the hospital authority would not perform stomach wash and sterile wash to the patient. Therefore, there may be chance of fatal side effects otherwise the hospital authority only kept the patient under observation. No necessary measures would have been conducted by the hospital authority. The OP No. 1 has not denied that the syrup was administered wrongly due to human error. But it cannot be expected from any hospital moreover not from a big hospital like Columbia Asia Hospital. When complainants' parents were informed about the wrong administration of Grilinctus syrup to their infant daughter we can imagine what was their mental condition and how much trauma was suffered by them. Though the necessary measure was stomach wash was conducted by hospital authority it can be assumed easily that at that time the parents of the baby were passing through a critical and unimaginable condition. And the whole episode was started due to wrong doing of the hospital authority. Anyone goes to the hospital with a hope to recover from his or her illness. In the instant case due to wrong doing of the hospital staff the condition of the patient would be fatal. Since the patient was released in stable condition, it would not prove that there is no deficiency in service on the part of the hospital. Therefore, there is gross negligence and deficiency of service on the part of the OP hospital for which the complainants are entitle for compensation.
The Ld. Counsel for the complainants has argued that this is a clear case of medical negligence because the wrong medicine has been administered to the patient.
In this connection, we can refer the judgment of the Hon'ble Supreme Court in Spring Meadows Hospital & anr. Vs. Harjol Ahluwalia & anr. (1998) 4 SCC 39, wherein it has been observed :-
"9.....Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned.....
10. Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitor can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing his duties properly."
We find that here, the mistake has taken place in administering the wrong medicine to the patient and therefore it is a case of negligence and cannot be called bona fide. The attending nurse has failed in her duty but she was appointed by the Hospital Authority / OP No. 1. Therefore, the hospital has vicarious liability for any treatment given in the hospital and therefore, the liability for the negligence has to be attributed to the OP hospital. In this connection we can cite the case of Maharaja Agrasen Hospital and Ors. Vs. Master Rishabh Sharma and Ors., 2019 SCC OnLine SC 1658 wherein the following has been observed. :-
"11.4.17. it is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. It is common experience that when a patient goes to a hospital, he / she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis it is the hospital which has to justify the acts of commission or omission on behalf of their doctors."
Now the question is, what would be the amount of compensation. In the instant case as per complainants' version their baby was suffered and started vomiting due to administration of wrong medicine Grilinctus. The Ld. Counsel for the O.P. No. 1 admitted that wrong medicine was administered but he did not admit any complaint of vomiting by the baby. However, the hospital authority took action immediately and washed the baby's stomach and sterile wash was also given by the hospital authority. OP also argued that no injury took place in the patient's health. It is true that the complainants have not prayed for any expert opinion which can prove that what damages could be happened to the patient for administration of wrong medicine. Since the hospital authority has admitted their wrong and from the discharge certificate it is evident that due to administration of wrong medicine some measures were taken by the hospital authority, therefore, it is a case of res ipsa loquitor to some extent. We know that in all cases the expert opinion is not necessary. In this connection we can cite the judgment passed by Hon'ble Apex Court in V Kishan Rao Vs. Nikhil Super Speciality Hospital. Since fortunately no injury happened in baby's/patient's health we can assess the amount of compensation on the basis of trauma and mental agony suffered by the baby's parents, relatives and well wishers.
It is important to note that the management of a hospital not only involves providing services of doctors and other staff and also to ensure that proper treatment is provided to the patient. In the present case the OP 1 Hospital has not disclosed whether the nurse was a trained or not and the incident took place definitely amounts to deficiency on the part of the hospital. The incident took place because of administration of wrong drug, therefore, the whole system of prescribing, providing and administering the drug comes into question. Here the duty nurse did not administer the medicine as per the prescription of the consulting doctor. System of checks and balances was not there to prevent such an incident. The Hon'ble Supreme Court in Smt. Savita Garg Vs. The Director, National Heart Institute, IV (2004) CPJ 40 SC has held the following.
"Once an allegation was made that the patient was admitted in a hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis, or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibility."
Thus the hospital cannot escape its liability for the medical negligence by stepping that it is a case of "human error'. Thus we are of the view that the hospital is required to compensate for the medical negligence that has happened in the hospital.
Since the nurses OP No. 2 and 3 were associated with the OP No. 1/hospital, we direct the hospital alone to pay the compensation for the medial negligence. OP No. 1 has failed to give any whereabouts of OP No. 2 and 3 who were employed by OP No. 1 at the time of the incident.
Based on the above discussion, we find negligence and deficiency in service on the part of O.P No. 1 Hospital in the present case. Keeping all the factors in view we think a compensation of Rs. 100,000/- should be awarded to the complainants by O.P. No. 1 Hospital. Since OP. No. 2 & 3 are engaged by the hospital authority we direct the hospital only to pay the compensation on behalf of all the OPs.
As a result, the complaint case succeeds.
Hence, Ordered That the complaint case being No. CC/203/2016 be and same is allowed on contest against O.P. No. 1 with cost and dismissed ex parte against OPs No. 2 & 3.
The O.P. No. 1 is directed to pay an amount of Rs. 1,00,000/- (Rupees one lakh) as compensation to the complainants within a period of 60 days from the date of this order.
The O.P. No. 1 is also directed to pay litigation cost of Rs.10,000/- (rupees ten thousand) to the complainants within the aforementioned stipulated period.
If the O.P. no. 1 fails to pay the above mentioned amount to the complainants within the stipulated period of time the amount will attract interest @ 6% p.a. from the date of this order till actual payment.
The complaint case is disposed of accordingly.
[HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER