State Consumer Disputes Redressal Commission
Dr. Mangal Chand Jana vs Gourhari Das on 14 August, 2008
D R A F T State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : 150/A/2007 DATE OF FILING :16.05.2007 DATE OF FINAL ORDER: 14.08.2008 APPELLANTS DR. MANGAL JANA @ DR. MANGAL CHAND JANA S/o. Sri Sudhangshu Sekhar Jana Vill. Dhanyashree P.O. Srikrishnapur Dist. Purba Medinipur. RESPONDENTS/O.P.S Principal Respondent 1. Sri Gourhari Das S/o. Sri Sunil Kumar Das Vill. Gargram, P.O. Brajalalchak P.S. Chandipur, Dist. Purba Medinipur. Proforma Respondents 2. New Life Line Nursing Home Erashal, P.S. Chandipur Represented by partners 3. Sri Krishnendu Bhakta 4. Sri Kalipada Das 5. Sri Sibnath Chakraborty All of Vill. Erashal, P.O. Math Chandipur, P.S. Chandipur, Dist. Purba Medinipur. BEFORE : MEMBER : MR. S.N.BASU MEMBER : MR. P.K.CHATTOPADHYAY FOR THE PETITIONER / APPELLANT : Mr. G.P.Dey, Advocate FOR THE RESPONDENT / O.P. :Mr. D.K.Bhattacharjee, Advocate (Res. 1) Mrs. K.Mukhopadhyay, Advocate(Res.3,4&5) : O R D E R :
MR. S.N.BASU This is an Appeal directed against the judgement and order dt. 18.4.07 passed by the Purba Medinipur District Consumer Forum in its Consumer Case No. 11/2005 directing the Appellant/OP No. 1 to pay compensation of Rs. 50,000/- and Respondent No. 2/OP No. 2 to pay compensation of Rs. 5,000/- to the complainant. Complainant was also directed to pay Rs. 1,000/- to the OP No. 2(2). Being aggrieved by the said judgement and order the present Appeal has been preferred.
2. The facts of the case briefly are that the wife of the Respondent No. 1/Complainant was admitted to the OP No. 2/Nursing Home for delivery of a baby. She gave birth to a female child and was discharged from the nursing home on 8.11.04. She was in the nursing home from 7.11.04 to 8.11.04.
She was subsequently under treatment of the Appellant after being released by the nursing home. On 10.11.04 the baby became ill and she was treated by the Appellant. Subsequently, as per advice of the Appellant the baby was taken to Dr. S.Samanta, who was a qualified and senior doctor. Dr. Samanta advised for shifting the patient to Tamluk District Hospital. However, she was instead admitted to the Respondent No. 2/Nursing Home on 10.11.04 and she was discharged by the nursing home on 12.11.04. In the Discharge Certificate certain medicines and injections were prescribed.
It is alleged by Respondent No. 1 that the mother of the baby called on the Appellant Doctor who practised locally.
It is further alleged that the Appellant Doctor pushed an injection on the baby as per prescription dt. 12.11.04 of the Nursing Home and two injections on 13.11.04. However, when the second injection was pushed on the baby at about 3.30 P.M. the patient became seriously ill and spasm started and after some time she collapsed. It has been further alleged that on being questioned by the mother of the baby the Appellant Doctor refused to reply to her and also slapped her. However, on the pressure of the neighbours the Appellant Doctor took the baby to the Respondent No. 2, a local nursing home where she was pronounced dead. The said nursing home did not issue any death certificate. Being aggrieved by the gross negligence on the part of both the Appellants and the Respondent No. 2/nursing home, Respondent No. 1/Complainant filed a complaint before the Forum below praying for refund of the amount of Rs. 9,000/- paid to the nursing home towards treatment cost and also compensation of Rs. 1,00,000/- by the Ops.
3. The Ld. Forum below after hearing all the sides and on perusal of the documents filed passed the above judgement.
4. The Appellant stated that the mother of the baby was admitted to the Respondent No. 2/nursing home on 7.11.04 and was discharged by the nursing home on 8.11.04 after delivery of a female baby. The baby was brought to the Appellant by her mother in indisposed condition on 10.11.04 at around 12.30 P.M. The Appellant clinically examined her and prescribed certain medicines and referred the patient to Dr. S.Samanta, MBBS(Cal) and DCH(Cal) for better management as her condition was considered deteriorating very fast. The Appellant/doctor also contended that he was attending various chambers in different localities and he left for his other chamber after examining the patient. The baby was thereafter re-admitted to the Respondent No. 2/nursing home on the same date and was discharged on 12.11.04 with the observation of septicemia (expressing doubt?) and suggested administration of certain medicines including injections. He further contended that Dr. S.Samanta also prescribed more or less the same medicines as already suggested by him. He contended that it was surprising that the nursing home had simply discharged the patient even after diagnosing suspected septicemia which is considered to be a killer disease. He also contended that the Ld. Forum had observed that Appellant/doctor used to attend the Respondent No. 2/nursing home, but he strongly denied that he had ever attended the nursing home as a doctor. He further contended that the Respondent No. 2 had not filed the Bed-head Ticket regarding the treatment given in the Nursing Home before the Forum below. No evidence was also adduced before the Forum below or any witness was cross-examined during adjudication of the dispute. The Appellant also contended that the complainant filed two death certificates, one issued by Dr. S.K.Maity, a homeopath doctor and another by Dr. S.Samanta.
He challenged the certificate of Dr. S.K.Maity whose certificate was dated 15.11.04 when the patient died on 13.11.04. Moreover, Dr. Maity issued such certificate without ever examining the patient. He stated that the said certificate has been issued only to frame him in the matter of death of the baby. Regarding the allegation of the complainant against him that the baby expired after pushing second dose of Amikacin injection on 13.11.04 at about 3.00 P.M. instead of 8.00 P.M. against the advice by the nursing home in their discharge certificate, he denied that he had pushed any injection to the baby as per the said discharge certificate of the nursing home. He stated that the Ld. Forum directed him to pay compensation of Rs. 50,000/- for alleged deficiency in service without proper application of judicial mind. He has, therefore, come up with the prayer that the said order dt. 18.4.07 be set aside.
He also contended that though he prescribed more or less the same medicines as prescribed by the nursing home in their discharge certificate dt. 12.11.04, he was not satisfied that the complainant had actually purchased those medicines for administering on the patient as the complainant could not produce any purchase memo before the Forum below. He further stated that the certificate of one L.M.P. doctor dt. 21.7.05 stating that he had doubt that the death of the baby was not due to spasm is a post facto thinking on the part of the complainant after the death of the baby. He contended that the complainant though alleged that he had pushed the injection on 13.11.04, as a result of which the patient died, could not adduce any documentary evidence before the Forum below to prove such allegation. He also contended that as per decision of the Honble National Commission in 2003 (1) CPR (NC) at Page-238 the medical negligence has to be proved and not be presumed and the complainant has failed to prove any of the allegations against the Appellant Doctor. He further stated that though he denied that he had ever pushed the injection on 13.11.04 as alleged by the complainant, he referred to medical literature titled Pharmacological Basis of Therapeutics, Tenth Edition by Goodman & Gilman, Page-1224 and 1225 wherein it has been stated that even once-daily regiments are just as safe as or safer than multiple-dosing regiments and, therefore, such allegation hardly against the Appellant is only motivated. He relied on the decision in 2003 (1) CPR 238 (NC) and also 2002 (3) CPR 254 (NC) in support of his arguments.
5. The Respondent No. 1 in his written argument contended that his wife was admitted to the Respondent No. 2/nursing home on 7.11.04 where she delivered a female baby and was released by the nursing home on 8.11.04. The baby fell sick on 10.11.04 and was treated by the Appellant doctor who prescribed certain injections, medicines and advised to consult Dr. S.Samanta for expert advice. He also contended that the Appellant/doctor used to work in the nursing home as an attending physician from time to time but failed to adduce any documentary evidence.
However, the baby was finally admitted to the Respondent No. 2/nursing home on the same day and was released on 12.11.04. His wife then consulted the Appellant/doctor for pushing injection as prescribed by the nursing home.
He pushed the first dose of Amikasin injection on 12.11.04 and pushed another dose at about 8.30 A.M. on 13.11.04.
The Appellant/doctor again pushed another dose of injection at about 3.30 P.M. instead of the scheduled time of 8 P.M. as advised by the nursing home authority. Immediately after taking the second injection the baby became seriously ill and spasm started and her movement stopped. The Appellant doctor allegedly slapped his wife on being questioned when the baby became still after taking the second injection.
However, the Appellant doctor ultimately accompanied them to the nursing home on the pressure of the local people where the baby was pronounced dead. Death certificate was issued by Dr. S.Samanta and not by the Nursing Home. He alleged that the nursing home authority also failed to discharge their duties properly, as a result of which the baby developed lung infection. It was surprising that though the nursing home authority detected the case as septicemia at the time of discharging the baby on 12.11.04, they did not give any other advice for proper management of the dreaded disease Septicemia excepting prescribing certain medicines.
He also contended that the nursing home authority was extremely callous in management of the patient which is corroborated by the fact that it mentioned the baby as a Male child in the birth certificate while a female child was born. He paid Rs. 9,000/- towards payment to the nursing home authority for which he received no satisfactory service and the baby ultimately died because of wrong treatment by both the Appellant and Respondent No. 2. He also contended that though the baby was brought to the Appellant doctor and she developed spasm, the Appellant doctor did not prescribe any treatment nor did he give suitable advice, which is the foremost duty of any medical practitioner.
Resultantly, the patient died.
He contended that the Ld. Forum passed a reasoned order which does not call for any interference. He relied on the decision in I 2008 CPJ 191 (NC) in support of his argument.
6. We have perused the Memo of Appeal and the written arguments filed by both the sides and the impugned judgement passed by the Ld. Forum below. A female baby was born to Respondent No. 1 on 7.11.04 in the Respondent No. 2/nursing home and the mother and the baby was discharged on the following day on 8.11.04. Soon after discharge the baby developed infection and other complications for which she was taken to the Appellant/doctor, who after examining her prescribed certain medicines with the advice to consult Dr. S.Samanta for his expert opinion in view of deteriorating health condition of the baby.
Respondent No. 1 took the baby to Dr. Samanta for consultation who advised for hospitalization in the District Hospital at Tamluk. However, for unknown reason the baby was ultimately admitted to the Respondent No. 2/nursing home on 10.11.04. She was there upto 12.11.04 and at the time of discharge the nursing home authority suspected that the baby was suffering from septicemia. The nursing home authority simply prescribed certain medicines without giving any advice for proper management of the crisis. The baby was allegedly taken to the Appellant doctor for pushing the injection and as per the contention of Respondent No. 1 he pushed injection on 12.11.04 and also in the morning at 8.30 A.M. of 13.11.04 and another injection on the same day at about 3.30 P.M. in the afternoon.
Immediately after taking the second injection the baby almost collapsed and spasm started and finally his body became still. The Respondent No. 1 contended that due to pushing of the second injection before the scheduled time of 8.00 P.M., the crisis had arisen and the baby expired. The Appellant, however, strongly denied that he had pushed the injection on the baby either on 12.11.04 or on 13.11.04. He contended that while he had given her treatment on 10.11.04, on the second occasion, i.e. on 12.11.04 he did not give any treatment to the patient and as such, the allegation of the Respondent No. 1 is totally baseless and motivated. The Respondent No. 1, however, failed to adduce any documentary evidence in support of his contention that the Appellant had pushed the injection on 12.11.04 and 13.11.04 respectively. The Appellant doctor also did not give any prescription except the one which had been given on 10.11.04. The Ld. Forum observed that circumstantial evidences prove that the Appellant Doctor had pushed the injection on the baby.
7. It is not clear from the Discharge Certificate issued by Respondent No. 2 Nursing Home as to when the baby was actually born. But the mother and the baby were discharged on the next day evidently the baby was born some 24 hours less than the time of discharge. This is a very unusual mode of treatment since no Nursing Home or Hospital discharges a new born baby within such a short time span, which are likely to make both of them vulnerable to various complications subsequently.
In fact, we find that the baby fell sick and she had to be rushed to the Nursing Home which was one day after the date of discharge. The Nursing Home again discharged the baby after treatment on 12.11.04 with the diagnosis septicemia(doubtful?). It did not suggest for any emergency measure for management of the said serious killer disease from which the baby was suspected to have been suffering and simply prescribed some medicines. We are of the view that there was a serious negligence on the part of the Respondent No. 2 Nursing Home and they should have advised the patient for hospitalization to a superior hospital/nursing home as it was originally advised by Dr. S.Samanta. The complainant has, therefore, also come up with the prayer for compensation against the nursing home. This is a case of medical negligence and as per settled principle of law, no treating doctor can be held responsible for wrong treatment without the expert evidence. The Death Certificate dt. 15.11.04 issued by one Dr. S.K.Maity, a Homeopath, is evidently a post facto certificate issued vicariously. No document has been adduced as to whether he had ever had the opportunity to examine the patient. Moreover, the certificate is not on affidavit and thus it does not have any evidential value. This certificate is also misleading in the sense that one of his observations that Cause of death was unknown. Hence, we do not agree with the findings of the Ld. Forum below that the doctor had been found negligent and his deficiency had been proved in terms of Section 2(1)(g) of the C.P.Act, 1986 on the basis of circumstantial evidences. On the other hand, we find palpable instance of negligence on the part of the Respondent No. 2 Nursing Home firstly because they issued a Birth Certificate of a male child when a female child was born.
Secondly, the new born baby was released by the Nursing Home within 24 hours or less from the time of her birth.
We also find that when the baby was admitted for the second time, at that time also she was released on the second day with a detection of vicious disease like Septicemia, which calls for highest degree of medical management by the professionals. Such early release is against the established medical practice and is always fraught with great risks to a patient. We, however, find that when the baby was brought to the Appellant Doctor for the second time, though there is no evidence of any treatment by him or pushing the injection, he failed to perform his professional duties evidently not to refer the case to a senior and experienced professional even though the baby might be brought in a critical condition.
8. In view of the facts and circumstances contained in the foregoing paragraphs we are inclined to say that deficiency of service in terms of Section 2(1)(g) stands duly substantiated against the Respondent No. 2 and partly against the Appellant. It is accordingly directed that the Respondent No. 2 shall pay compensation of Rs. 50,000/- (Rupees fifty thousand only) and the Appellant shall pay Rs. 5,000/- (Rupees five thousand only) to the Respondent No. 1. Both the Appellant and the Respondent No. 2 shall also pay jointly litigation cost of Rs. 3,000/- (Rupees three thousand only) to the Respondent No. 1. The decretal amounts shall be paid by both the Appellant and the Respondent No. 2 within 30 (thirty) days from the date of communication of this order, failing which the amount shall carry interest @ 12% (twelve per cent) p.a. for the period of default. The order of the Forum below dt. 18.04.07 is affirmed with the above modifications. The Appeal is allowed in part on contest with cost.
MEMBER MEMBER (PKC) (SNB)