State Consumer Disputes Redressal Commission
Sri Debmalya Kundu vs Dr. Madan Mohan Kapas on 29 November, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/140/2015 ( Date of Filing : 21 Apr 2015 ) 1. Sri Debmalya Kundu S/o Sri Bashudeb Kundu, 16A, Ruby Park East, P.O.- Haltu, Kolkata- 700 078. ...........Complainant(s) Versus 1. Dr. Madan Mohan Kapas Consultant Gynaecologist, Premier Nursing Home Surgical Centre, 14B, Anil Roy Road, Kolkata-700 029. O.P NO.01 is deleted vide order no.38 dated. 07/09/2022 2. Dr. Debabrata Bhattacharya Consultant Anaesthetist, Premier Nursing Home Surgical Centre, 14B, Anil Roy Road, Kolkata-700 029. 3. Dr. Saktiroop Sen Consultant Cardiologist, Premier Nursing Home Surgical Centre, 14B, Anil Roy Road, Kolkata-700 029. 4. Premier Nursing Home Surgical Centre 14B, Anil Roy Road, Kolkata-700 029. 5. Dr. B.K. Manocha Consultant Paediatrician, Premier Nursing Home Surgical Centre, 14B, Anil Roy Road, Kolkata-700 029. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER PRESENT: Ms. Binota Roy , Advocate for the Complainant 1 Mr. Soumen Mondal, Advocate for the Opp. Party 1 Mr. Abhik Kr. Das, Advocate for the Opp. Party 1 Dated : 29 Nov 2022 Final Order / Judgement
HON'BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT By this complaint case the complainant Debmalya Kundu, who is the husband of Late Debalina Kundu who died on 20/11/2013 in the Premier Nursing Home Surgical Centre, claiming the following reliefs : -
"i) To direct the OP No. 4 i.e. Premier Nursing Home Surgical Centre to furnish the original relevant treatment records and /or sheets of the complainant's wife so provided to the complainant;
ii) To direct the OPs to pay a total compensation to the tune of Rs.25,82,000/- for the irreversible loss and damage suffered by the complainant and his family AND
iii) To pass such further order or orders as Your Lordship deems fit and proper."
The brief facts of the case are that the complainant was blessed with a happy family comprising of his parents and newly wed wife. The complainant's wife Debalina Kundu conceived in the month of March, 2013. The complainant along with his wife had visited the chamber of Dr. Madan Mohan Kapas for the first time on 09/06/2013 wherein the said Dr. Madan Mohan Kapas had advised the complainant's wife to undergo certain blood tests and Ultrasonography and follow-up in the first week of July, 2013. Accordingly, the complainant along with his wife had visited the chamber of the said doctor in the month of July, 2013 and thereafter as and when advised for such follow-ups. The due date for delivery was scheduled tentatively in the month of December, 2013.
Further case of the complainant is that on 14/11/2013 the wife of the complainant, Debalina Kundu was taken to opposite party No. 1 doctor for her scheduled follow-up. The opposite party No. 1 doctor had advised her for admission at Premier Nursing Home Surgical Centre, opposite party No. 4 herein for lower segment caesarian section (LSCS) on 20/11/2013 at 10.00 a.m. Accordingly, on 18/11/2013 opposite party No. 1 doctor had handed over a note to the complainant addressing the opposite party No. 4 to admit the complainant's wife at the said Nursing Home. Debalina Kundu, since deceased, thereafter was admitted to opposite party No. 4 Nursing Home on 19/11/2013 and on 20/11/2013 at 10.20 a.m. she had an LSCS under general anesthesia and delivered a male child weighing around 4 kgs 200 gms. The operation was done by opposite party No. 1 doctor aided by anesthetist, opposite party No. 2 doctor and pediatrician, proforma opposite party No. 5 doctor.
On 20/11/2013 at 11.00 a.m. the complainant was asked to bring baby food for the child which he had brought and handed over the same to the concerned staff. No information regarding the complainant's wife was given till then to the complainant and his relatives who were waiting outside the operation theatre at the waiting area of the Nursing Home. On 20/11/2013 at about 12.00 noon, the complainant and his relatives got restless and were curious to know about the health of the mother of the child. At about 12.30 p.m. the concerned staff from operation theatre had informed for the first time to the complainant that there was a sudden deterioration of the health of the complainant's wife. On requesting for her transfer to another hospital or nursing home, the complainant was told that her condition being precarious, she could not be transferred to any other hospital or nursing home with better infrastructural facilities.
Further case of the complainant is that the complainant and his relatives were in a complete state of shock and wanted to enquire the further details from the opposite parties. The opposite party Nos. 2,3 doctors and opposite party No. 5 doctor had left the operation theatre by then. Finally, it was disclosed to the complainant and his relatives at about 1.15 p.m. on 20/11/2013 that complainant's wife, Debalina Kundu passed away on the operation table. The said news of death came down as a huge shock to the complainant and his relatives.
Further case of the complainants is that the complainant had to experience fatherhood at the cost of losing his wife, a child had to come to this world at the cost of losing his mother's life and live a life thereafter sans motherly love, care and protection and all due to the latches and negligence on the part of the treating doctors. After demise of the complainant's wife, the complainant had shifted the child to B.K. Hospital.
Further case of the complainant is that on 18/11/2013 at the request of the opposite party No. 1 doctor, the complainant paid Rs.28,000/- to opposite party No. 1 doctor for admission of his wife to opposite party No. 4 nursing home.
Further case of the complainant is that after the demise of the complainant's wife i.e. on 20/11/2013 opposite party No. 1 doctor Dr. Madan Mohan Kapas had written a note on the letterhead to opposite party No. 4 nursing home stating that a sum of Rs.12,000/- only will be paid to Mr. N.K. Pal, brother-in-law of the complainant on 23/11/2013 along with all money receipts given by the nursing home and doctors regarding operation of Debalina Kundu, wife of Debmalya Kundu.
Further case of the complainant is that sudden disappearance of the doctors from the operation theatre led the complainant to suspect a foul play. The complainant had requested the opposite party No. 4 nursing home to provide him with treatment and / medical records of his wife Debalina Kundu, since deceased, along with the BED HEAD TICKET and operation theatre note with the intent to know the exact circumstances under which he had to lose his wife at the operation theatre. The opposite party No. 4 nursing home took nearly three months' time to provide copy of the same as requested for. Finally, along with the letter dated 01/09/2014, the opposite party No. 4 nursing home had provided with some documents claiming them to be medical records, BED HEAD TICKET and operation note of the patient Debalina Kundu, since deceased.
On careful perusal of the said documents, so provided by the opposite party No. 4 nursing home with utter surprise the complainant found facts which he was never made aware of on the date i.e. 20/11/2013 along with several anomalies which undoubtedly raised suspicion in the mind of a prudent man.
Further case of the complainant is that careful perusal of the documents claimed to be the BED HEAD TICKET and operation note would reveal clear manipulation in the sense that the same does not bear the name and address of the clinical establishment printed along with other details of the patient. On the contrary, the same is in the form of a blank paper, stamped on the top of the page bearing the name of the patient along with the name of treating doctor which is usually not the case. Nowhere in the four corners of the said documents the term of treatment sheet "or such other similar phrase referring to the same as mentioned from which it would be evident the same is the BED HEAD TICKET.
Further case of the complainant is that the consent form for admission and operation at opposite party No. 4 nursing home is one and the same. Careful perusal of the same would reveal that the complainant's consent had been taken for operating his wife while the patient signed below on the right hand side and the complainant again as a witness signed on the left hand side. It is a product of confusion worst confounded. It is not clear as to why such consent had been taken with no utterance of the nature of the surgery involved, kind of anesthesia given to the patient etc. The consent so taken by the opposite party No. 4 nursing home was not informed consent in the true sense of the term.
Further case of the complainant is that on close scrutiny of the operation note so provided by each and every attending doctor would reveal the lackadaisical approach in treating the patient. In the notes so provided by the opposite party No. 1 vide Annexure 12, a statement as vague as "all necessary drugs were used" has been made by him completely overlooking the very purpose and importance of an operation note in a surgery. The opposite party No. 1 did not think it proper to mention the necessary drugs used. There is no mention of time either when such note had been written by the opposite party No. 1. The notes so provided by the opposite party No. 2 doctor is also a product of confusion worst confounded. It further raises suspicion in the sense that the second note so written by the opposite party No. 2 apparently seems to be a afterthought and written as a much later stage. It looks like that the two notes have been written using two different pens.
Further case of the complainant is that despite being a case of death on operation theatre no post mortem or histopathological tests were conducted to find out the actual cause of death. On the contrary, the opposite party No. 2 doctor thought it proper to note in writing that the death of the complainant's wife was anticipated to have been due to amniotic fluid embolism. The opposite parties on the basis of his own anticipation stated the cause of death of the patient ruling out any other possible cause of death which again is a clear indication of a very casual approach by the opposite parties in the instant case.
Further case of the complainant is that for the first time through letter dated 01/09/2014 issued by the opposite party No. 4 nursing home and its documents, the complainant came to know that opposite party No. 3 doctor was called for at the operation theatre whose assistance was sought for.
Further case of the complainant is that due to the latches and negligence on the part of the opposite parties, the complainant had to lose his wife, a son had to lose his mother before even he could realise what he lost. The loss that the complainant, his son and his family had suffered due to untimely death of a young lady of 27 years is insurmountable and cannot be quantified and compensated in monetary terms. Hence, this case.
The opposite party No. 1 Dr. Madan Mohan Kapas entered appearance in this case and was contesting the case by filing written version denying the material allegations of the petition of complaint. His specific case is that on 04/06/2013 Debalina Kundu aged 27 years, since deceased, attended the chamber of opposite party no. 1 for the first time. This opposite party No. 1 checked her as a gynecologist. The said Debalina Kundu had amenorrhea (pregnant) since 18/03/2013 or could have before and her uterus was bigger than that of 14 weeks. Debalina Kundu was given routine and antenatal advice along with one USG report to be brought after four weeks when she would come for next visit. She was suffering from hypothyroidism for which she was treated under Dr. Professor U.S. Arora, Ex- Professor of Surgery, N.R.S. Medical College & Hospital and used to take Thyronorm tablet of 25 mg. daily.
Further case of the opposite party No. 1 is that in her next visit in January, 2013 the opposite party No. 1 observed that USG showed single foetus, period of gestation of 14 to 15 weeks. She was also developed high rise of blood pressure > 140/90 for which necessary treatment was advised and rest, salt poor diet etc. In each visit the opposite party No. 1 issued prescriptions with necessary advice to take medicine, testing etc. and the prescriptions have been annexed in the complaint.
Further case of the opposite party No. 1 is that Debalina Kundu, since deceased, altogether gave six antenatal visits and last visit was on 14/11/2013. It was found that the baby was much bigger along with a good amount of liquor amnii as well as blood pressure was more than 140/90. As such, she was advised for admission on 19/11/2013 in opposite party No. 4 nursing home. Accordingly, on 19/11/2013 at 10.30 a.m. she was admitted at opposite party No. 4 nursing home. After admission, opposite party no. 1 examined her and her blood pressure was more than 140/95. Uterus term size, vertex low down and found operation was immediately needed and accordingly, opposite party No. 1 gave the pre operative advice along with a request for the advice of the anesthetist i.e. opposite party No. 2 Dr. Debkumar Bhattacharya, who immediately examined and after his examination, opposite party No. 2 stated that it was okay. The patient would be taken for surgery on the next day i.e. on 20/11/2013.
Further case of the opposite party No. 1 is that on 20/11/2013 at 9.45 a.m. the patient Debalina Kundu, since deceased, was taken to the operation theatre. General anesthesia was given and operation was started at 10.05 a.m. The opposite party No. 1 performed the operation. Pfannenstiel incision was given in lower abdomen. Lower uterine caesarian section was made in usual way. A big male baby was delivered on that day at 10.20 a.m. and the said baby was handed over to the senior pediatrician Dr. Manacha who did necessary steps and showed the baby to the patient party. The weight of the baby was 4.200 kgs. The opposite party No. 1 completed the operation in usual way. Placenta expelled spontaneously. Uterus became hard. 3 layers of uterine sutures were given. Abdomen closed in layers after proper counting the instruments and mops as well as peritoneal toileting. Vagina was dry. The surgical team i.e. opposite party No. 1 and his two assistants came out of operation theatre and changed dresses and waited for the anesthetist opposite party No. 2 to come out of the operation theatre so that opposite party No. 1 would be able to show the patient alright to the party, but the anesthetist Mr. Bhattacharya was not coming out and opposite party no. 1 was worried. The opposite party No. 1 thereafter again changed dresses and entered into the operation theatre and saw that opposite party No. 2 was having lots of trouble to bring the patient back from anesthesia. In the meantime, the opposite party No. 2 called on a cardiologist i.e. opposite party No. 3 doctor being a son of renowned cardiologist Late Dr. Sunil Sen and the grandson of Late Professor Sailendra Nath Sen. The opposite parties including the opposite party No. 1 endeavoured their best efforts to revive the patient and put suitable injections and cardiac massage but no fruitful effect came out and finally the patient Debalina Kundu declared dead at 1.10 p.m. suspecting amniotic fluid embolism. The opposite party No. 2 gave the patient party the suggestion of post mortem but they did not give consent.
Further case of the opposite party No. 1 is that the child was taken full care and there was no complaint in respect of the child.
Further case of the opposite party No. 1 is that time to time necessary information regarding the patient and the child both were given to the patient party. There was no question of transferring the patient to another hospital in as much as the patient could not be able to back from anesthesia. Ultimately, the said patient was declared dead. There was no suggestion or claim to transfer the patient to any other hospital on the part of the patient party during the said short span of time.
Further case of the opposite party No. 1 is that after declaration of death of the patient, the complainant and his associates as assembled in the opposite party No. 4 nursing home started hue and cry and created breach of peace and tranquility by using filthy languages and till 7.00 p.m. on the same day they besieged opposite party No. 1 and his wife Dr. (Mrs.) Mira Kapas like prisoners in the nursing home. The complainant and his associates gave plenty of remarks and abused in filthy languages.
The opposite party No. 1 and his wife were humiliated in such a way and they might die in the nursing home in their senior ages and ultimately in the night they were allowed to go home after the dead body of the patient Debalina Kundu was taken away by the party from the nursing home.
Further case of the opposite party No. 1 is that the opposite party No. 1 knew the parents of the Debalina Kundu namely Mrs. & Mr. Bijan Kundu since 1982-1983 while the opposite party No. 1 was a Reader / Associate Professor in the Department of Gynecology in R.G. Kar Medical College & Hospital. Mrs. Kundu was admitted as an emergency patient under opposite party No. 1. This opposite party No. 1 treated medically the mother of the deceased Debalina Kundu on several occasions.
Further case of the opposite party No. 1 is that the opposite party No. 1 was posted in different government hospitals and he worked there with extremely goodwill and fame and there was no blame or objection in his entire career of life. He is a qualified gynecologist and he obtained higher education in London.
Further case of the opposite party No. 1 is that before operation the patient party gave Rs.28,000/- as initial payment but the said whole amount of money was taken up by Mr. Uttam Pal, one of the relative of the patient Debalina Kundu by issuing accountable receipts from the opposite party No. 1. The opposite party No. 1 from their pocket paid the nursing home charges as well as the cost of medicines and the charges of anesthetist. The opposite party No. 1 had full sympathy and soft corner for the patient Debalina Kundu and all the family members of her considering long terms cordial relation and thick and thin with them as prevailing all along.
Further case of the opposite party No. 1 is that the BED HEAD TICKET contained all necessary details same as in any other cases as used by the nursing home in medical cares in their day to day routine and the same was not in the form of blank paper stamp. The consent form has been filled up by the nursing home and signatures of the patient and her husband was taken as usual in the right place therein. The reference letter of opposite party No. 1 dated 18/11/2013 addressed to the nursing home for admission has been clearly indicated to nature of operation / surgery to be made to the patient. There was no necessity for the nursing home to mention in the consent form of this details in as much as the patient was referred by the opposite party No. 1 and the patient and the patient party were well acquainted about the case of surgery involved in this particular case. There was no vague or ambiguous operation note. The Annexure I & II of the petition of complaint are clearly visible and the opposite parties gave notes and their remarks in every stage with the suggestions of medicine and treatment to be applied to the patient. There is no anomaly in prescribing / observing and giving suggestions in the operation note.
Further case of the opposite party No. 1 is that the patient party did not agree to any post mortem or histopathological test of the patient and gladly on understanding all aspects took delivery of the body of the patient without any grievance. The opinions of the doctors were correct and there was every reason to believe that the patient died in anticipation of amniotic fluid embolism which is a very rare case. The anticipation of the cause of death of the patient was logical and carried cogent reason in medical science and nobody can deny.
Further case of the opposite party No. 1 is that the opposite party No. 1 was equally sorry in the unfortunate death of Debalina Kundu. As such, this opposite party No. 1 is not liable to pay or bear any expenses for medical treatment. So, the opposite party No. 1 has prayed that the complainant is not entitled to get any order or direction from this Commission.
The Opposite party No. 2 is Dr. Debabrata Bhattacharya who is contesting the case by filing written version. His specific case is that the patient Debalina Kundu was admitted on 19/11/2013 in the opposite party No. 4 Nursing Home under the supervision of opposite party No. 1. The opposite party No. 1 contacted the opposite party No. 2 for gynecological and obstetrician for the case of Elective caesarian section of Mrs. Debalina Kundu to be held tentatively on 20/11/2013. On the day of operation i.e. on 20/11/2013, opposite party No. 2 reached at the opposite party No. 4 Nursing Home at about 9.00 a.m. and discussed with the opposite party No. 1 regarding physical condition of Mrs. Debalina Kundu. The opposite party No. 2 made a pre-operative assessment of the said patient by physical examination and laboratory reports, the result were satisfied and decided to take up the patient for surgery i.e. caesarian section. Considering all aspects and the surgeon's liking, the opposite party No. 2 decided to give general anesthesia to the patient. He inducted the patient to anesthesia at 10.00 a.m. with injection Thiopentone Sodium - 250 mg. plus injection Atracurium Bromide 30 mg. The patient delivered a male child at 10.20 a.m. The anesthetic procedure were continued with muscle relaxed, analgesic and IPPV ( Intermittent Positive Pressure ventilation ).
Further case of the opposite party No. 2 is that the operation lasted for about one hour. During the last phase of surgery the opposite party was getting ready with reversal drugs. When the surgeon was applying stitches to the skin, spasm was seen while ventilating the patient which was very unusual. Anyway, the patient was given 100% oxygen and ventilated for some time. When the spasm subsided, reversal drugs were given. The patient became conscious and started to speak out. She was administered 100% oxygen all through. Suddenly, the patient started having respiratory difficulty and oxygen saturation started to fall, so far as it was maintained at the level of 97 to 100%. Anticipating impending pulmonary embolism due to amniotic fluid embolism, the patient was reinsulated and ventilated. The requisite drugs were administered. At that time, the opposite party No. 2 called the opposite party No. 3 Dr. Shaktirup Sen, Cardiologist and ITU physician to help in resuscitating of the patient. The opposite party No. 2 and other doctors tried level best, but in spite of all endeavours, the patient died.
Further case of the opposite party No. 2 is that the team of doctors informed the patient party about the situation and personally told the patient party that this was a very rare complication (amniotic fluid embolism).
Further case of the opposite party No. 2 is that the opposite party No. 2 told them the proper cause of death in this particular case can only be ascertained by autopsy. The opposite party advised to take the necessary steps to carry on an autopsy, but they did not listen to the advice and took the body and cremated.
Further case of the opposite party No. 2 is that the patient and the patient party gave consent for operation and anesthesia. Before operation all anesthesia check up was done by the opposite party No. 2.
There was no scope to transfer the patient to any other Nursing Home or set up for better management. The opposite party No. 4 Nursing Home has better management and ITU facility. So, the opposite party No. 2 has prayed for dismissal of the complaint case with cost.
The opposite party No. 3 is Dr. Shaktirup Sen who is contesting the case by filing written version denying the material allegations of the petition of complaint. The specific case of the opposite party No. 3 is that he is associated as a consultant physician for opposite party No. 1. His field of specialization is general medicine.
Further case of the opposite party No. 3 is that the proceeding before this Commission being summary in nature and the issues involved in this case being complicated particularly when the allegations involved are medical negligence of very highly technical in nature, this Hon'ble Commission would be pleased not to exercise jurisdiction in this matter and direct the complainant to approach Civil Court or appropriate forum for appropriate reliefs.
Further case of the opposite party No. 3 is that the complainant had filed the present case knowing fully well that the patient had suffered complications over which no treating doctor had any control whatsoever.
Further case of the opposite party No. 3 is that the opposite party No. 3 was not a treating doctor of the patient nor had any information or knowledge as to the treatment, admission in the Nursing Home or the surgery the patient was undergoing. On 20/11/2013 at about 11.30 a.m. he received a phone call from the opposite party No. 4 Nursing Home and stated to him that Dr. Debabrata Bhattacharya, Senior Consultant anesthetist had requested him to attend the opposite party urgently as there was an emergency situation. He reached the Nursing Home operation theatre by 11.50 a.m. and found the operation was in progress, the patient was intubated, ventilated. The cardiac monitor was not showing any cardiac cycle complexes. It was a straight line. Oxygen saturation was 69%, steadily decreasing. When he tried to measure the BP, faint sound was heard at 60 mm/Hearing and on chest auscultation fine crepitation was heard at both lung places / bases. Then and there, he started cardiac pulmonary resuscitation with cardiac massage, continued ventilation with 100% oxygen, Chronotropic drugs.
Further case of the opposite party No. 3 is that the details of the medical management and drugs administered along with the mention of dose were recorded in the treatment sheet of the patient. In spite of best efforts, the patient did not respond to any emergency treatment measures adopted and was declared dead at 1.10 p.m. on 20/11/2013.
Further case of the opposite party No. 3 is that, opposite party No. 3 had provided the best possible treatment to the patient as per well accepted medical norms. So, the opposite party No. 3 has prayed for dismissal of the complaint case with compensatory / exemplary cost.
The opposite party No. 4 is Premier Nursing Home Surgical Centre who is contesting the case by filing written version denying material allegations as stated in the petition of complaint. The specific case of the opposite party No. 4 is that the opposite party No. 4 Nursing Home is a well equipped Nursing Home under the West Bengal Clinical Establishment Act, 1950 and the treating doctors of Late Debalina Kundu are all visiting doctors to the said Nursing Home. Mrs. Debalina Kundu, since deceased, was admitted in the Nursing Home on 19/11/2013 at around 10.30 a.m. after compliance of all necessary formalities as per advice of and under her treating doctor i.e. opposite party No. 1.
44. Further case of the opposite party No. 4 is that opposite party No. 4 obtained consent form duly signed by the patient herself upon explaining in detail the nature of the operation, its purport and effort thereon. During her stay in the Nursing Home for a small period on 27 hours only, the instructions prescribed by the treating doctors were meticulously followed i.e. provided services to the satisfaction of the patient and her family members. On 20/11/2013 as per instructions of the treating doctors, the patient was taken to the operation theatre. The opposite party No. 1 and opposite party No. 2, both operated the patient.
45. Further case of the opposite party No. 4 is that there was no delay in delivery of documents. From the Annexures annexed with the petition of complaint, it is evident that opposite party No. 4 had duly handed over the papers to the complainant as per settled rules and practices. Sudden disappearance of the doctors from the operation theatre as alleged by the complainant is totally fabricated incident without any iota of truth.
46. Further case of the opposite party No. 4 is that as per available records, letters dated 29/08/2014 and 28/10/2014 addressed to the opposite party No. 4 annexed to the complaint with the petition of complaint were never acknowledged by the office of the opposite party No. 4.
47. Further case of the opposite party No. 4 Nursing Home is that in spite of advice from the doctor, the complainant / patient party never agreed for autopsy of the deceased in the guise of domestic sentiments of family members and took away the dead body of Debalina Kundu from the Nursing Home for cremation. There are no latches or negligence on the part of the opposite party No. 4 for untimely death of Debalina Kundu. As such, the opposite party No. 4 has prayed for dismissal of the complaint case.
48. The opposite party No. 5 is Dr. B.K. Manacha who is contesting the case by filing written version denying the material averments of the petition of complaint. His specific case is that the complainant has filed this complaint case which is fully meritless, so, no order can be passed in favour of the complainant. As consultant pediatrician opposite party No. 5 was there at the time of the operation of the wife of the complainant to examine the new born child. After birth of the child and after his proper check up and on being satisfied with the condition of the child, he left the operation theatre as nothing further was left for him to be done.
49. Further case of the opposite party No. 5 is that, there was no latches or negligence on his part. At the request of the complainant , the new born baby was shifted to another hospital and accordingly, he issued a transfer certificate for the same. Thus, the opposite party No. 5 has prayed to expunge his name from the cause title of the petition of complaint.
50. On behalf of the complainant, the complainant himself has filed evidence on affidavit. He has also given reply against the questionnaire set forth by the opposite parties. Both the contested opposite parties have also tendered evidence through affidavit.
51. During the pendency of this case, opposite party No. 1 doctor M.M. Kapas passed away. As such, the name of the opposite party No. 1 was deleted from the cause title of the petition of complaint.
52. The complainant and the opposite party No. 2 have filed BNA in support of their respective cases.
53. Upon hearing both sides and on perusal of the pleadings of both sides, the following issues were framed for proper adjudication of the case.
ISSUES
i) Is the consumer case maintainable ?
ii) Are the opposite parties guilty of deficiency in service as alleged by the complainant ?
iii) Is the complainant entitled to get any relief and / or reliefs as prayed for ?
Decisions with reasons 54. Issue No. 1 This issue is taken up first for consideration.
This issue has not been pressed by the Learned Lawyers appearing for the parties at the time of hearing arguments. So, this issue is decided in favour of the complainant and against the opposite parties.
55. Issue Nos. 2 & 3These two issues are taken up together for consideration for the sake of brevity and their inter-relatedness.
Learned Advocate appearing for the complainant has urged that the opposite party No. 4 took nearly three months' time to supply the copy of BED HEAD TICKET as requested instead of three days and the opposite party No. 4 had tampered with the BED HEAD TICKET and the operation note.
56. She has further urged that despite being a case of sudden death at operation table, the opposite parties never advised for Post Mortem examination upon the dead body of deceased Debalina Kundu to ascertain the actual cause of death. She has further urged that issuance of death certificate by the opposite party Nursing Home is in contradiction of BED HEAD TICKET and no proper informed consent was taken by the opposite parties. She has further urged that the opposite party No. 3 was appointed but the appointment of opposite party No. 3 has not been informed to the complainant. She has further urged that due to latches and negligence by the opposite parties, Debalina Kundu passed away untimely. So, the complaint case should be allowed and complainant is entitled to get compensation as prayed for.
57. On the other hand, Learned Lawyer appearing for the opposite party No. 2 has urged that the patient was admitted on 19/11/2013 in the opposite party No. 4 Nursing Home under supervision of Dr. M.M. Kapas and said Dr. M.M. Kapas contacted the opposite party no. 2 for gynecologist and obstetrician for case of elective caesarian section of Mrs. Debalina Kundu to be held on 20/11/2013. On 20/11/2013, the opposite party no. 3 reached at Premier Nursing Home Surgical Centre and discussed with Dr. M.M. Kapas ( opposite party No. 1, since deceased) regarding physical condition of Mrs. Debalina Kundu. He has further urged that opposite party No. 3 induced the patient to anesthesia and anesthetic procedure was continued. He has further urged that the operation lasted for one hour. The patient delivered a male child at 10.20 a.m. He has further urged that when the surgeon was applying stitches to the skin spasm was seen while ventilating the patient which was very unusual. Suddenly, the patient started having respiratory difficulty and the oxygen saturation started to fall. At that time, the opposite party No. 3 called Dr. Shaktirup Sen, Cardiologist to help in resuscitation of the patient. The opposite party No. 3 and other doctors tried their level best but in spite of all endeavours the patient died. He has further urged that the patient party was informed about the situation and the opposite party No. 2 also personally told them that this was a very rare complication (amniotic fluid embolism). He has further urged that the opposite party No. 2 told them the proper cause of death and in this particular case it can only be ascertained by an autopsy and advised to take the necessary steps to carry on autopsy but the patient party did not listen to the advice and took the body and cremated the body. He has further urged that the patient and the patient party gave consent for operation and also given anesthesia. Before operation, all anesthesia check up was done by the opposite party No. 2. He has further urged that this Nursing Home had better management and ITU facility. The opposite party No. 2 and other doctors tried their level best but in spite of all the endeavour the patient passed away. Learned Advocate appearing for the opposite party No. 2 have urged that there is no deficiency in service on the part of the opposite party No. 2. The opposite party No. 2 gave best services to the said patient as per medical protocol. So, the complaint case should be dismissed.
58. Learned Advocate appearing for the opposite party No. 3 has urged that opposite party No. 3 was not the treating doctor of the patient nor had any information or knowledge as to the treatment, admission in the Nursing Home or surgery of the patient was undergoing. He has further urged that on 20/11/2013 at about 11.30 a.m. opposite party No. 3 received a phone call from Premier Surgical Nursing Home. On receiving the phone call he went there and found the operation was in progress and the patient was intubated, ventilated. He has further urged that cardiac monitor of the patient was not showing any cardiac cycle, complex, it was a straight line. Oxygen saturation was decreasing. He has further urged that opposite party No. 3 tried to measure the blood pressure, faint sound was heard. Immediately thereafter, opposite party No. 3 started cardiac pulmonary resuscitation with cardiac massage, in spite of best efforts of opposite party No. 3, the patient did not respond to any emergency treatment measure adopted. The patient was declared dead at 1.10 a.m. on 20/01/2013. He has further urged that the opposite party No. 3 was called by the Nursing Home authorities as an emergency life saving procedure and the opposite party No. 3 had reached the Nursing Home within the short possible time. He has further urged that there was no time at that emergency situation to inform the relatives of the patient regarding the call which was given to the opposite party No. 3 to save the life of the patient at the operation theatre. He has further urged that the complainant is not entitled to get any relief against the opposite party No. 3 who has treated the patient to the best of his skill, ability and experience and following the standard medical norms. But the treatment had not achieved the desired result at that emergency situation. So, the complaint case should be dismissed.
59. Having heard the Learned Advocate appearing for the both sides and on perusal of the record, it appears to us that it is an admitted position that the deceased Debalina Kundu was the wife of the complainant and Debalina Kundu conceived in the month of March, 2013.
60. It is also an admitted position that the complainant along with his wife had visited the chamber of the opposite party No. 1 Dr. M.M. Kapas, since deceased for the first time on 09/06/2013 wherein the said opposite party No. 1 had advised the complainant's wife to undergo certain blood tests and USG and follow-up in the first week of July, 2013 and, accordingly, the complainant and his wife had visited the chamber of the opposite party No. 1 Doctor in the month of July, 2013. It also an admitted position that due date for delivery was scheduled tentatively in December, 2013. It is also an admitted position that on 14/11/2013 Debalina Kundu, since deceased, was taken to the chamber of opposite party No. 1 and after examination, opposite party No. 1 advised her for admission at the opposite party No. 4 Nursing Home for lower segment, caesarian section on 20/11/2013. It is also an admitted position that on 18/11/2013, the opposite party No. 1 doctor handed over a note to the complainant addressing the opposite party No. 4 to admit the complainant's wife at the said Nursing Home. It is also an admitted position that on 19/11/2013, complainant's wife Debalina Kundu, since deceased, was admitted to the opposite party No. 4 Nursing Home. It is also an admitted position that on 20/11/2013 at 10.20 a.m. said Debalina Kundu, since deceased, had a lower segment caesarian section under general anesthesia and delivered a male child weighing about 4 kg. 200 gms. It is also an admitted position that the operation was done by the opposite party No. 1 aided by anesthetist, the opposite party No. 2 doctor and obstetrician, with proforma opposite party No. 5 doctor. It is also an admitted position that on 20/11/2013 at about 11.50 a.m., the opposite party No. 3 doctor reached at the opposite party No. 4 Nursing Home on call. It is also an admitted position that on 20/11/2013 at 1.10 p.m. Debalina Kundu was declared dead at the operation table at the opposite party No. 4 Nursing Home.
61. Now, we shall have to consider as to whether there was any deficiency in service on the part of the opposite parties and whether the opposite party No. 4 had tampered with the BED HEAD TICKET and operation note and whether due to latches and negligence by the opposite parties, Debalina Kundu, since deceased, had an untimely death.
62. It is the case of the complainant that BED HEAD TICKET and operation note would reveal a clear manipulation in the sense that the same does not bear the name and address of the clinical establishment printed along with other details of the patient.
63. It is also the further case of the complainant that the BED HEAD TICKET and operation note is in the form of blank paper, stamped on top of the page bearing the name of the patient along with the name of the treating doctor which is usually not the case.
64. It is also the further case of the complainants that the said document does not contain the term "treatment sheet".
65. It is also the further case of the complainant that there is no whisper in the BED HEAD TICKET or treatment sheet about the drugs used during delivery of the baby and while the patient was on the operation table. So, the complaint case should be allowed and there is negligence on the part of the opposite party doctors.
66. We have gone through the documents filed by the complainant before this Commission. Annexure 13 is the said BED HEAD TICKET cum operation note. The said Annexure 13 to the petition of complaint discloses that after delivery of the child, the patient was alright and talked and the patient was comfortable. Suddenly, oxygen saturation started to fall. The said document also discloses that the patient developed respiratory distress and auscultation and had creps all over and the patient was immediately reintubated with 30 size ETT and ventilation started after thorough TB toilet. The said BED HEAD TICKET cum operation note also discloses that gradually the patient had a down line the course and died at 1.10 p.m. It also appears from the said Annexure 13 of the petition of complaint that the said above noted observations were given on the operation note which contains the stamp of the hospital and name of the Nursing Home as well as name of the patient and the doctor. Moreover, from the said document it also appears that name of the drugs namely injection Atropin 2 amps. followed by 2 amps. given once bradycardia sets in. The said BED HEAD TICKET cum operation note also discloses that the patient was reintubated with 7.0 size ETT. From the above discussion, it can be said that the BED HEAD TICKET cum operation note was not on a blank paper, rather it was stamped on the top of the page bearing the name of the patient along with the name of the treating doctor and the name of the Nursing Home. It also discloses that the names of the medicines were disclosed which were given to the patient at the operation table. So, the case of the complainant cannot be accepted and believable.
67. Learned Lawyer appearing for the complainant has further urged that despite being a case of sudden death on the operation table, the opposite party never advised for post mortem to ascertain the actual cause of death. We fail to accept such submission as made by the Learned Lawyer appearing for the complainant.
68. On careful perusal of the Annexure 13 to the petition of complaint ( page 37) it appears to us that the opposite party No. 2 doctor has clearly and categorically mentioned in the said BED HEAD TICKET cum operation note to the effect that anticipating the patient died due to amniotic fluid embolism, the patient's relative were advised to have an autopsy done to arrive at a final diagnosis. Therefore, it can be said that opposite party No. 2 doctor advised the patient party to have an autopsy to ascertain the actual cause of death of the patient on the operation table.
69. Learned Lawyer appearing for the complainant has further urged that the opposite party No. 4 had tampered with the BED HEAD TICKET and the operation note. So, the BED HEAD TICKET and the operation note cannot be accepted as true. The said submission of the Learned Advocate appearing for the complainant cannot be accepted as because the said Annexure 13 to the petition of complaint goes to show that it was prepared by the opposite party 1 and the opposite party No. 2 doctor. After immediate death of the patient Debalina Kundu, the opposite party No. 2 have noted on 20/11/2013 at 1.30 p.m. that anticipating the patient died due to amniotic fluid embolism, the patient's relatives were advised to have an autopsy to arrive at a diagnosis. From the above, it is clear that the opposite party No. 2 doctor had advised the patient party that the proper cause of death in this particular case can only be ascertained by an autopsy. But the patient party did not listen to the said advice, rather they took the dead body of the patient from the Nursing Home and cremated it. It was the duty of the patient party to inform the local police station about the death of the patient to find out the actual cause of the death. Record goes to show that the death certificate was issued by the opposite party Nursing Home and the patient party collected the death certificate from the Nursing Home and they took the dead body of the patient from the Nursing Home and subsequently cremated the body. Under this facts and circumstances and on perusal of the materials on record, we have the reason to believe that the opposite party No. 2 advised to take the necessary steps to carry on an autopsy but the patient party did not listen to his advice and they took the dead body of the patient and cremated it.
70. Learned Lawyer appearing for the complainant has further urged that the opposite party Nursing Home did not inform to the complainant about the appointment of opposite party No. 3 Dr. Shaktirup Sen. So, there is negligence on the part of the opposite parties. It is in evidence that suddenly the patient started having respiratory difficulty and her oxygen saturation started to fall, so far it was maintained at the level of 97 - 100%. It is also in evidence that anticipating impending pulmonary embolism due to amniotic fluid, the patient was reinsulated and ventilated. The requisite drugs were administered. It is also in evidence that the opposite party No. 2 called the opposite party No. 3 Dr. Shaktirup Sen, Cardiologist and ITU physician to help in resuscitation to the patient. The opposite party and other doctors tried level best but in spite of all endeavours the patient died.
71. Under this facts and circumstances, we are of the considered view that since the condition of the patient was very critical and the oxygen saturation started to fall, the opposite party No. 2 was not in a position to inform the patient party about the call of opposite party No. 3 doctor and since the opposite party No. 3 was called by the opposite party No. 2, the opposite party No. 3 came in the Nursing Home and treated the patient, but the patient died in spite of the doctor tried his level best.
72. Learned Lawyer appearing for the complainant has further urged that no proper informed consent was taken by the opposite parties. The alleged consent so taken by the opposite party No. 4 Nursing Home was not informed consent in the true sense of the term. Annexure 'C' to the petition of complaint is the application for admission and consent form which discloses that the patient Debalina Kundu was admitted on 19/11/2013 in the opposite party No. 4 Nursing Home under the supervision of Dr. M.M. Kapas, since deceased. The said document also discloses that the patient and the patient party gave consent for operation and also gave for anesthesia. In an emergency situation, for example, intestinal perforation, a doctor may have to operate even in the absence of consent to save the life of a patient. It is possible that even with such an intervention, the patient may not survive. Assuming that the doctor is competent and has exercised due care and diligence a doctor cannot be held responsible for patient's death as he has acted in good faith and in the best interest of the patient. In this particular case, we find that the patient was suffering from respiratory distress and oxygen saturation started to fall. In such critical condition, the opposite party No. 2 doctor tried his best to save the life of the patient and he has acted in good faith and in the best interest of the patient. Under this facts and circumstances, we are of the view that consent at the time of admission of the patient for operation and anesthesia, was taken from the patient party and the patient. But informed consent has not been obtained since the condition of the patient was very grave and to save the life of the patient in absence of such informed consent, the opposite party doctors tried to save the life of the patient and the doctors exercised due care and diligence and they had acted in good faith and in the best interest of the patient.
73. Record goes to show that the opposite party No. 2 entered appearance in this case and contesting the case by filing written version and during pendency of this case, the opposite party No. 2 Dr. Debabrata Bhattacharya filed an application before this Commission for appointment of an expert in this case who had best knowledge of general anesthesia.
74. Record also goes to show that this Commission was pleased to pass an order for appointment of an expert in this case and the Expert Committee after examination had filed their report. It transpires from the said report dated 17/12/2019 that the treatment outline and documented by the attending physicians / obstetricians, anesthetist and cardiologist were as per usual protocol in such a collapsing patient but unfortunately the patient could not be revived.
75. It further transpires from the said report that without autopsy they cannot give any opinion about the cause of death. On consideration of the said expert committee report, we are of the view that the treatment of the patient was done as per usual protocol in such a collapsing patient but the patient could not be revived. We have already decided in our foregoing paras that post mortem examination of the patient could not be held since the patient party took the dead body of the patient from the Nursing Home and cremated.
76. In the instant case, in our view, the opposite parties have performed their duties to their best of ability with due care and caution and diligence. The complainants did not allege about the ability and skill of the doctors.
77. The Learned Counsel for the complainant in support of their allegation regarding negligence against the treating doctors and the opposite party Nursing Home has relied on the following five judgments namely i) 2017 (1) CPR 807 NC; ii) 2017 (2) CPR 609 NC, iii) 2017 (1) CPR 553 NC, iv) 2013 (1) CPR 244 NC & v) 2015(2) CPR 425 NC. However, reliance of this five judgments in the adjudication of this complaint, facts being at variance, would be misplaced.
78. In Des Raj Singla and ors. V. Dayanand Medical College and Hospital and Ors. reported in 2022(1) CPR 45 (NC) the Hon'ble National Commission observed that :-
" Onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence.
A mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of complaint can be said to be proved. It is the obligation of the complainant to provide hard evidence to prove the case of medical negligence against the Doctors / Hospitals."
The Hon'ble Apex Court has pronounced in a case reported in 2022(1) CPR 443(SC) (Dr. Harish Kumar Khurana V Jaginder Singh and ors.) that :-
"In every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent".
80. We appreciate the pain of the complainant, but then that by itself cannot be a cause for awarding compensation for passing away of his wife. We have sympathy for the complainant, but sympathy cannot translate into legal remedy.
81. Having regard to the discussion done and legal position explained, we are of the considered view that negligence as alleged against the treating doctors or the opposite party Nursing Home cannot be substantiated and thus the complaint cannot be allowed.
82. In the result, the complaint case be and the same is dismissed.
83. There will be no order as to costs.
84. The complaint case is thus disposed of accordingly. [HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER