State Consumer Disputes Redressal Commission
Sri Samaresh Kuila vs Dr. Madhu Maity C/O, New Mother Teresa ... on 14 July, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/338/2015 ( Date of Filing : 04 Sep 2015 ) 1. Sri Samaresh Kuila S/o, Shasanka Kulia, Vill - Narayan Pakuria, Kolaghat, P.S - Purba Medinipur, Pin - 721 134. ...........Complainant(s) Versus 1. Dr. Madhu Maity C/o, New Mother Teresa Nurshing Home Vill - Dakshin Mechagram, P.O - Uttar Mechagram, P.S - Panskura, Dist - Purba Medinipur, Pin - 721 139. 2. Dr. Sabyasachi Santra C/o, New Mothe Teresa Nursing Home Vill - Dakshin Mechagram, P.O - Uttar Mechagram, P.S - Panskura, Dist - Purba Medinipur, Pin - 721 139. 3. Tapas Rana, Owner The New Mother Teresa Nursing Home Vill - Dakshin Mechagram, P.O - Uttar Mechagram, P.S - Panskura, Dist - Purba Medinipur, Pin - 721 139. 4. Sri Manoranjan Kulia S/O Late Shyampada Kuila,Village - Narayanpakuria, P.O - Namalbarh, P.S - Kolaghat, Dist - Purba Medinipur, Pin - 721 151. 5. Sri Srikanta Maity Vill - Paschim Naranda(Word No.3), P.O & P.S - Panskura, Dist - Purba Medinipur, Pin - 721 139. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER PRESENT: Ms. Bratati Chakraborty , Mr. Subir Banerjee, Advocate for the Complainant 1 None appears ......for the Opp. Party Dated : 14 Jul 2022 Final Order / Judgement
HON'BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT By this complaint case, the complainant Samaresh Kuila who is the father of late Shubham Kuila who died on 25/05/2015 in the operation table of the nursing home namely 'New Mother Teresa Nursing Home' claiming compensation of Rs.99,81,000/- (Rupees ninety nine lakh and eighty one thousand) only for negligence and deficiency in service of the opposite parties thereby resulting in death of his son, Shubham Kuila.
The brief facts of the case are that on 25th day of May, 2015 at about 6.00 a.m. the left forearm of Shubham Kuila, aged 3 years and 10 months, the only son of the complainant, had been broken and as such immediately Shubham Kuila was brought to 'New Mother Teresa Nursing Home' as referred by the opposite parties No. 4 & 5 who are agent of the 'New Mother Teresa Nursing Home'. It was told that the child to be admitted immediately for operation and for that a sum of Rs.15,000/- (Rupees fifteen thousand) only to be the operation charges besides other charges. It was insisted to admit for such operation of the child with the representation that the senior Doctor to be left nursing home for treatment to elsewhere. Upon such representation the child was admitted in the said nursing home with the hope for proper treatment. As per advice of Dr. Sabyasachi Santra, opposite party No. 2, orthopedic surgeon of 'New Mother Teresa Nursing Home', the said child was admitted in the said Nursing Home and some tests were done at the Diagnostic Centre of the said Nursing Home namely 'New Mother Teresa Nursing Home & Diagnostic Centre'. After admission in the said nursing home, the complainant and his relatives understood that the only son aged about 4 years died in operation table due to negligence of Doctor and his associates as well as authority of the Nursing Home.
Further case of the complainant is that the complainant then lodged a complaint to the Officer-in-charge, Panskura Police Station. Post mortem of Shubham Kuila was held at Purba Medinipur District Hospital, Tamluk under reference of Panskura Police Station. Due to the death of Shubham Kuila, the complainant lodged a complaint before the Superintendent of Police, Tamluk, Purba Medinipur, alleging negligence and carelessness of the Doctors and 'New Mother Teresa Nursing Home' vide letter dated 25th May, 2015. The complainant also lodged a complaint before the Officer-in-charge of Police Station on 26/05/2015 against the opposite parties who were responsible for the death of the child of the complainant. The Police started a case on the basis of the complaint lodged by the complainant.
Further case of the complainant is that the death of the deceased Shubham Kuila was reported in 'Bartaman' newspaper on 26th May, 2015.
On 31st July, 2015, the complainant requested the concerned authority of the said Nursing Home to issue a death certificate in respect of his son and the said letter was sent by registered post. The authority of the said Nursing Home has ignored the letter dated 31st July, 2015 submitted by the complainant. Further case of the complainant is that after filing of the present case, the complainant got post mortem examination report and the said report was accepted by this Commission vide order dated 04/09/2019. Further case of the complainant is that the Medical Officer of Purba Medinipur District Hospital, Tamluk has opined that the case of death was some sorts of medical misadventure and is responsible for causing the death of the child patient.
Being aggrieved by the death due to alleged negligence of the Nursing Home and treating Doctors, the complainant filed this consumer complaint before this Commission praying for Rs.99,81,000/- (Rupees ninety nine lakh and eighty one thousand) only.
Dr. Madhusudan Maity hereinafter referred to as the opposite party No. 1 entered appearance in this case and is contesting the case by filing written version wherein he has denied the material allegations against him. The specific case of the opposite party No. 1 is that the complaint does not come within the purview of the Consumer Protection Act, 1986, there is no cause of action against the opposite party No. 1. There is no deficiency in service or there is no allegation of any unfair trade practices in respect of the goods and services by the opposite party No. 1. The complaint is frivolous and this Commission ought to reject the same in limini. The complainant is not entitled to get any reliefs as prayed for.
Dr. Sabyasachi Santra (hereinafter referred to as the 'Opposite Party No. 2') was Doctor of the said Nursing Home who filed written version that the complaint is not maintainable in law and is liable to be dismissed. The medical issues involving in this case are so complicated in nature and without any evidence of medical experts of specialized field it cannot be possible for the Commission to decide the matter and further voluminous evidence has to be recorded. This Commission being created for summary trial the present case should be dismissed. The complaint does not disclose any cause of action against the opposite party No. 2, as such it is liable to be dismissed. The complainant did not specifically disclose about the negligence which was committed by this opposite party. The complainant has filed this complaint only to malign the reputation of the opposite parties. The medical negligence during treatment was denied.
The opposite parties No. 3 to 5 filed its written version and denied all the allegations. They stated that the complainant has filed the instant case by suppressing the material facts with the intention to malign the reputation of the Nursing Home run by the opposite party No.3 and the Doctors and tried to make money by instituting a false case against the opposite parties. The specific case of the opposite parties No. 3 to 5 is that on 25/05/2015, the 4 years old son of the complainant was brought to the Nursing Home with fractured wrist joint. When the deceased son of the complainant was brought to the Nursing Home he was hemorrhaging badly and was almost in a condition where the recovery of the patient was beyond control. The deceased son of the complainant was immediately attended by Dr. Sabyasachi Santra (opposite party No.2) at the Nursing Home without any delay and with utmost care. The concerned Doctor considering the urgency in the matter advised the patient party for his immediate admission in the Nursing Home without delay and the prognosis was explained to the patient party. The blood sample was taken without any delay and sent for examination. After getting blood examination report the concerned Doctor decided to do surgery of the wrist joint of the patient. Before the concerned Doctor who started surgery after applying anesthesia the patient breathed his last and his life could not be survived / saved although there was utmost care and due diligence of the team of the attending Doctors. There was no delay and / or negligence on the part of either of the Nursing Home or the Doctors concerned. The further case of the opposite parties No. 3 to 5 is that before taking admission in the said Nursing Home the patient party has already delayed in bringing the patient in the Nursing Home which causes death of the patient.
Being satisfied with the facilities available in the Nursing Home the complainant chose to get his son admitted in the Nursing Home. The deceased Shuvham Kuila was under supervision of opposite party No.2, a renowned Doctor of the locality who has sufficient experiences and well competent in dealing with orthopedic surgery having MS degree in orthopedic. Since the situation of the patient was so critical, the complainant requested the opposite party No. 2 Dr. Sabyasachi Santra and gave consent for conducting surgery. Hence the opposite parties No. 3 to 5 have prayed for dismissal of the complaint case.
On behalf of the complainant, complainant himself has filed evidence through affidavit. He has also given reply against the questionnaire set forth by the opposite party. The opposite parties have also tendered evidence through affidavit. They have also given reply against the questionnaire put forward by the complainant. Apart from oral evidence the parties have relied upon some documentary evidence also. The parties have also filed brief notes of arguments in support of their case.
Upon hearing both sides and on perusal of the pleadings of both sides the following issues were framed for proper adjudication of the case.
I S S U E S i) Is the complainant a consumer ?
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 Issue No. 1 This issue is taken up first for consideration.
It is the case of the complainant that the Nursing Home authority claimed Rs.15,000/- in all for the operation of Shubham Kuila, aged 4 years and the complainant paid Rs.1,000/- on spot and assured to pay the rest amount of Rs.14,000/- after operation and no receipt of advance payment of Rs.1,000/- was issued. In his evidence the complainant has also stated so. The opposite parties have not denied the same on oath. So, the case of the complainant on this count remained unchallenged.
Moreover, in the judgment rendered in Medical Association Vs. V P Santha reported in (1995) 6 SCC 651 the Court choose to assume a narrow approach for cases pertinent to 'free medical care'. It differentiated between the following circumstances :-
i) Services which are rendered free of cost to everyone availing them;
ii) Services which must be availed by payment by everyone availing them;
iii) Services which are availed usually by payment, however, are made available free of cost to the persons who cannot afford to pay for them.
The Apex court in this landmark judgment found that services rendered by Doctors and hospitals which fall in the second and third category will be covered within the ambit and definition of a 'service' as defined in section 2(1)(0) of the Consumer Protection Act, 1986. Therefore, persons who avail free service are beneficiaries and as such are covered within the ambit of definition of 'consumer' under section 2(i)(d) of the Act. The Hon'ble Apex Court thus has held that complaint under Consumer Protection Act is maintainable against the hospitals and Nursing Homes / Health Centres mentioned against serial nos. 2 & 3 as above. In this case it is not the case of the opposite parties that they are rendered services free of cost to everyone availing them.
Coming to the facts of the instant case it is found that the Nursing Home i.e. the opposite party No. 3 is a private nursing home and it rendered services to the patient entirely on payment basis. The opposite party No. 3 nursing home has not stated on oath in their evidence that patient Shubham Kuila was admitted to the New Mother Teresa Nursing Home on 25/05/2015 without paying any money to them. Under this facts and circumstances and on consideration of the evidence and materials on record we are of the view that the instant complaint is therefore, maintainable against the nursing home and also against the Doctors of the said Nursing Home.
This issue is thus decided against the opposite parties and in favour of the complainant.
Issues No. 2 & 3These two issues are taken up together for consideration for the sake of the gravity and their interrelatedness.
Learned Advocates appearing for the opposite parties have argued that the complainant has totally failed to prove the case. They have further argued that there is no expert opinion with regard to the death of the deceased Shubham Kuila. They have further argued that misadventure is not negligence. They have further argued that the complaint case is not maintainable, so, the complaint case should be dismissed.
On the other hand, Learned Advocates appearing for the complainant have argued that the complaint case is quite maintainable and complainant has been able to prove the case, so, the complaint case should be allowed.
Upon hearing Learned Advocates of the respective parties and on perusal of the materials on record we find that it is an admitted position that Shubham Kuila sustained fractured injury on his left forearm. It is also admitted that Shubham Kuila, son of the complainant aged 4 years was admitted in the opposite party No.3 nursing home on 25/05/2015 at about 6 a.m. for operation. It is also admitted position that opposite party No. 1 Dr. Madhusudan Maity was the anesthetist and opposite party No. 2 Dr. Sabyasachi Santra were the orthopedic surgeon who saw Shubham Kuila and decided to perform operation on Shubham Kuila. It is also admitted position that Shubham Kuila was taken to the operation theatre of opposite party No. 3 nursing home where the opposite party No. 1 and opposite party No. 2 were present. It is also an admitted position that Shubham Kuila aged 4 years, son of the complainant died in the operation table of the opposite party No. 3 nursing home.
Learned Lawyer appearing for the complainant has submitted that the case is quite maintainable and there are contradictions in the evidence of the opposite parties, so, the case of the opposite parties cannot be considered as true. We find that there are substance in the submissions as made by the Learned Lawyer appearing for the complainant. Opposite party No. 2 Dr. Sabyasachi Santra has answered in his reply that no operation could be performed on Shubham Kuila. The patient was admitted under him. Closed reduction under anesthesia (MUA) was done ( if failed then K wire fixation) MUA could not be done as the patient was deteriorated after induction of anesthesia by the anesthetist and the patient expired in spite of severe resuscitation. Whereas the opposite party No. 2 in his reply clearly and categorically stated that surgery was done after application of anesthesia. This apart, opposite party No. 2 in his reply has stated that no operation was done on Shubham Kuila, only anesthesia was applied by the anesthetist. Whereas the opposite party No. 1 Dr. Madhusudan Maity has replied that surgery was done after anesthesia. This apart, opposite party No. 2 in his reply has deposed that condition of the patient was deteriorated after induction of anesthesia by the anesthetist whereas anesthetist Dr. i.e. Dr. Madhusudan Maity has replied that patient was stable after anesthesia was applied. The opposite party No. 2 has replied in his reply that condition of the patient was recorded in the OT Note but no OT Note is produced by the opposite parties who are the custodians of the operation theatre note. This apart, opposite party No. 2 has stated in his reply that operation could not be performed whereas the opposite party No. 1 Dr. has stated that surgery was conducted by Dr. Sabyasachi Santra, opposite party No. 2. Therefore, it appears to us that no corroboration nexus is found in the reply made by the opposite party No. 1 and opposite party No. 2 as referred to above. As there are noticeable discrepancy in the replies made by the opposite party No. 1 and opposite party No. 2 we are reluctant to place any reliance on the version of opposite party No. 1 and opposite party No. 2.
Complainant has filed post mortem examination report of Shubham Kuila. The post mortem examination report discloses that the stomach content is the sign of feeding of child patient causing aspiration. From the above it is clear that before applying anesthesia no investigation has been done by the opposite parties No. 1,2 & 3 whether the patient was in empty stomach or not which was necessary to enquire before applying anesthesia. Hence it is proved beyond doubt that opposite party No. 1 and opposite party No. 2 have not taken all reasonable care to their patient. There was gross negligence on the part of the Doctors causing death of Shubham Kuila, son of the complainant.
It is in evidence that Shubham Kuila died in the morning of 25/05/2015 in the operation theatre room of opposite party No. 3 nursing home. ECG report issued by the opposite party No. 3 nursing home. It appears that ECG of the patient was done on 25/05/2015 at 23=30=22 i.e. late night of 25/05/2015. Post mortem examination report of Shubham Kuila discloses that dead body of deceased Shubham Kuila was brought to the dead house of the Purba Medinipur District Hospital at 4.20 p.m. We fail to understand as to how it is possible that ECG of the patient was done at late night while the dead body of the patient was brought to the hospital at 4.20 p.m. on 25/05/2015. This aspect of the case clearly established that there was negligence on the part of the nursing home in the discharge of its duty.
Post mortem report filed by the complainant goes to show that medical officer of Purba Medinipur District Hospital, Tamluk, conducted post mortem examination over the dead body of Shubham Kuila aged about 4 years. Medical officer, Purba Medinipur District Hospital has opined that some sort of medical misadventure is responsible for causing death of the child patient. So, the post mortem examination report clearly proves that there was medical negligence on the part of the Doctors who were present at the operation theatre room of the opposite party No. 3 nursing home. So, it is proved beyond reasonable doubt that opposite party No. 1 and opposite party No. 2 providing treatment to Shubham Kuila were negligent in service. Medical evidence i.e. Post Mortem Report is available before this Commission. Post Mortem Report is clear and there is nothing on record to disbelieve it.
In our view, the post mortem report spelling out categorically the cause of death has to be given precedence over the expert report which is prepared only on the basis of records and other materials produced by the parties. There is nothing on the post mortem examination report to say that the post mortem report submitted by the medical officer is created one, so, the submission of the opposite parties that no expert report was called for, cannot be accepted at all. In the given facts and circumstances of the case particularly from the post mortem report of Purba Medinipur District Hospital, Tamluk which clearly proves the cause of death was due to some sort of medical misadventure is responsible for causing death of the child patient, therefore, it is a clear case of negligence of the Doctors in the operation theatre room during conducting surgery. Therefore, it can be said that the opposite party No. 3 and opposite party No. 1 and opposite party No. 2 are guilty of medical negligence. The facts and circumstances of the present case and facts and circumstances of the unreported judgment passed by the Hon'ble Apex Court in connection with civil appeal No. 6168 of 2008, civil Appeal No. 3971 of 2011, civil Appeal No. 7380 of 2009 and civil appeal No. 1658 of 2020 are not same and the above noted rulings don't directly apply in the present case.
Under this facts and circumstances we are of the view that the opposite parties No. 1,2 & 3 are liable for the acts of omission.
In the medical negligence cases the quantum of compensation is highly subjective in nature as the human life is most precious.
In the instant case, the Opposite Party Nos. 1,2 and 3 are liable for the acts of omission. The Opposite parties No. 4 and 5 are not found guilty of medical negligence. So, the case against Opposite parties No. 4 and 5 is dismissed.
In the medical negligence cases the quantum of Compensation is highly subjective in nature as the human life is most precious. The Hon'ble Supreme Court laid down different methods to determine 'just and adequate compensation'. However, further cautioned the tribunals, saying the amount of compensation awarded was not expected to be a windfall or bonanza, nor should it be niggardly or a pittance. It was always a mixed question of fact and law, but a mere speculative possibility of benefit was not sufficient.
In this context, we would like to rely upon the judgment of Hon'ble Supreme Court in Sarla Verma & Ors. vs Delhi Transport Corp. & Anr. reported in (2009) 6 SCC 121 -which observed:
"Compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just...Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit..... Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions".
In the instant case the complainant claimed Rs.99,81,000/- (Rupees ninety nine lakh and eighty one thousand) only on the basis that the deceased was only 4 years old. The deceased was the only son of the complainant and death of Shubham Kuila was terrible one to their family. The complainant, father of the deceased lost consortium. Thus, we are of the considered view that the complainant in the ends of justice is entitled to get Rs.30,00,000/- (Rupees thirty lakh) only which is just and proper compensation.
On the basis of foregoing discussion the opposite party No. 3 nursing home and opposite party No. 1 & 2 Doctors are directed to pay a total sum of Rs.30,00,000/- (Rupees thirty lakh) only (Rupees 15 lakh by the opposite party No. 3 nursing home and rupees seven lakh fifty thousand each by opposite party No. 1 & 2).
The opposite party No. 1 to 3 shall pay the awarded amount within one month from the date of the receipt of this order. The delay beyond one month shall attract interest @ 8% per annum till its realization.
Let a copy of this order be given to the parties concerned at once.
This complaint case is thus disposed of accordingly.
[HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER