State Consumer Disputes Redressal Commission
Smt. Soma Barman Nee Datta vs Mr. Sunil Chandra Podder on 14 November, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/471/2016 ( Date of Filing : 26 Oct 2016 ) 1. Smt. Soma Barman nee Datta W/o Sri Chandan Datta, Vill. Jhaljhali, P.O.- Deocharai, P.S. - Tufanganj, Dist. Cooch Behar, W.B., Pin-736 156. ...........Complainant(s) Versus 1. Mr. Sunil Chandra Podder Director, Poddar Seva Sadan Pvt. Ltd., Sunity Road, P.O. Cooch Behar, P.S.- Cooch Behar Sadar, Dist. Cooch Behar, Pin-736 101. 2. Chairman, Cooch Behar Municipality Blood Bank Municipality Building, Gr. Floor, Sagar Dighi Par, P.O. Cooch Behar, P.S.- Cooch Behar Sadar, Dist. Cooch Behar, Pin-736 101. 3. Dr. Dipankar Datta, M.D (G & O), Gynaecologist & Obstetrician Hitendra Narayan Road, P.O. Cooch Behar, P.S.- Cooch Behar Sadar, Dist. Cooch Behar, Pin-736 101. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Kripasindhu Panja, Advocate For the Opp. Party: Hillol Saha Podder, Ms.Suman Sehanabis ( Mondal), Advocate Dated : 14 Nov 2019 Final Order / Judgement PER: MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint Under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the behest of a victim of alleged medical negligence against the Director of a Private Nursing Home (Opposite Party No. 1), Chairman, Coochbehar Municipality Blood Bank (Opposite Party No.2) and the Doctor attached to OP No. 1 Nursing Home (Opposite Party No. 3) with a prayer for compensation of Rs. 1 crore.
Succinctly put, complainant's case is that on account of suffering from gynaecological and menstrual problem on 14.03.2016 she visited to OP No. 3 for her medical treatment. After clinical examination, OP No. 3 prescribed some medicine and also advised for blood test at Dr. Pompi Bhattacharya's Lab and advised for USG report. On 16.03.2016 the complainant went to the said laboratory for her blood test and also went to Devi Diagnostic Centre for USG report where her blood test and USG were done. On that evening the complainant met OP No. 3 alongwith the blood test report and USG report. The OP No. 3 told her that she has been suffering from deficiency of blood and advised her for transfusion of 3 units of blood and also advised to consult with general physician. Accordingly, the complainant went to meet Dr. P. Das, General Physician who only, changed power of medicine prescribed by OP No. 3. On the following day according to the instruction of OP No. 3 the complainant was admitted at OP No. 1 private Nursing Home for her blood transfusion where OP No. 3 was the consulting doctor. The complainant's husband Sri Chandan Dutta collected the blood sample issued by OP No. 1 Nursing Home and went to OP No. 2 blood bank to collect 3 units of blood. The OP No. 2 blood bank collected two outside blood donor from whom they collected two units of blood without checking blood sample and cross matching report. When the husband of the complainant insisted the OP No. 2 for cross matching, the OP No. 2 Bank told him that there is no reason for any anxiety. The husband of the complainant donated one unit blood to OP No. 2. The husband of the complainant collected three units of blood being unit No. 5746, 5747 and 5748 after payment of Rs. 900/- from him. The said blood unit No. 5746 was from the husband of the complainant and the unit Nos. 5747 and 5748 were from outside donor. Thereafter, the husband of the complainant deposited the said three unit blood to the OP No. 1 Nursing Home and thereafter, the said three units blood transfusion were done in the body of the complainant under the supervision/treatment of OP No. 3. The said blood transfusion was started on 17.03.2016 at 9.30 P.M and finished on 18.03.2016 at 5 P.M. The complainant has stated that when the blood transfusion of other two units were started and on going on she felt illness and fever and loose motion were started. When the complainant requested OP No. 3 to stop the blood transfusion, the OP No. 3 neglected her request and told her that the said symptom is normal at the time of blood transfusion. On 19.03.2016 OP No. 3 discharged the complainant from OP No. 1 Nursing Home in spite of her fever, illness and loose motion. After coming from OP No. 1 nursing home, the complainant feeling illness met Dr. S.K. Paul for her remedy on 24.03.2016, 25.03.2016 and 26.03.2016. Dr Paul prescribed some medicine and advised for USG report and on examination it was found bulky uterus and multiple small stone in Gall Bladder were detected in the USG report. In spite of treatment of Dr. S.K Paul the illness of complainant were increasing continuously for which the complainant was taken to North DumDum Municipal Hospital on 29.03.2016 where her blood test was done. On 30.03.2016 on the advice of the Doctor of the said hospital, the complainant was taken to 'Suraksha' for her HIV test and on examination HIV-1 Reactive was detected. On 01.04.2016 the complainant was taken to Carmichael Hospital for Tropical deceases, Government of West Bengal where the complainant was advised for blood test of ICTV-Virology and on the said test HIV-Reactive was detected. The complainant has stated that her husband or her daughter are not HIV patients. The complainant has submitted that she has been living with her husband since their marriage on 20.12.2007 but after detection of HIV test she has been living freely with her husband and her daughter has also segregated her. The complainant has alleged that without checking blood sample and cross matching report the blood transfusion was done by OP nos. 1 to 3 which was wrongful and negligence and also deficiency in services.
The Opposite Party No. 1 i.e. the Poddar Seva Sadan Private Limited by filing written version has stated that after seeing the result of bio-chemical examination of the complainant from Dr. Pompi Bhattacharya's pathology laboratory, the OP No. 3 noticed that the complainant was suffering from very low range of T.S.H. and Haemoglobin as well. Accordingly, OP No. 3 has rightly advised for blood transfusion which was duly affirmed by another Doctor i.e. Dr. P. Das. The OP No. 1 has stated that the patient party i.e. the husband of the patient brought the blood from OP No. 2 and handed it over to them and the same was accordingly transfused. The OP No. 1 has denied the fact that in spite of patient's fever, and loose motion, the OP No. 3 or they had discharged the patient and has specifically stated that the husband of the patient on his own sweet will took discharge of the wife. The OP No. 1has further stated that the first HIV test of the complainant was done at least 6 months back from the date when her HIV antibodies was found positive. Therefore, according to OP No. 1 the complaint should be dismissed with costs.
The Opposite Party No. 2 entered appearance but failed to submit written version within the stipulated period of limitation. Therefore, in view of the decision of Three- Judge Bench of the Hon'ble Supreme Court reported in 2016 (1) Supreme 319 (New India Assurance Company Limited -vs- Hilli Multi-purpose Cold Storage Private Limited) ,by order No. 06 dated 01.09.2017 the OP No. 2 was prevented from filing written version and it was observed that the complaint will proceed against OP No. 2 ex parte. Challenging the aforesaid order, OP No. 2 did not move in any higher forum and allowed to proceed the case ex parte.
The Opposite Party No.3 by filing a separate written version has stated that after seeing the result of bio-chemical examination of the patient from Dr. Pompi Bhattacharya's pathology lab, he noticed that the patient had been suffering from low range of T.S.H and haemoglobin. Accordingly, he advised for blood-transfusion which was duly affirmed by another doctor i.e. Dr. P. Das. The OP No. 3 has stated that he along with other doctor suggested for blood-transfusion and accordingly issued blood sample of the patient and the patient party i.e. the husband of the patient himself collected the blood from the Cooch Behar Municipality Blood Bank (OP No. 2). The OP No. 3 has further stated that he or the OP No. 1 neither referred the patient party to collect the blood from said blood bank nor had any interference in it. He has submitted that he has performed his duty with utter sincerity and there was no deficiency or negligence on the part of him or OP No. 1. Therefore, the complaint should be dismissed.
In support of her case, complainant has tendered evidence through affidavit. She has also give reply against the questionnaire set forth by the Opposite Party Nos. 1 and 3.
On behalf of Opposite Party No. 1, Sri Sunil Chandra Poddar, Director of Poddar Seva Sadan Private Limited has adduced evidence through affidavit. OP No. 3 Dr. Dipankar Datta, MD (Gynaecology and Obstetrician) has also tendered evidence through affidavit. However, reply has been given by OP No. 3 on behalf of OP Nos. 1 and 3 against the questionnaire set forth by complainant.
Both the parties have relied upon several documents in support of their respective cases. At the time of final hearing, on behalf of complainant brief notes of argument has been filed. Though OP Nos. 1 and 3 were under obligation to file BNA in accordance with 13 (2) of Consumer Protection Regulations, 2005 as they were represented through the Ld. Advocates yet they choose not to file the same. However, at the time of final hearing both the complainant and Opposite Party Nos. 1 and 3 were represented through their respective Ld. Advocates.
The overwhelming evidence on record make it abundantly clear that the complainant, who was a married woman of 34 years of age, being a resident of village- Jhaljhali P.O.- Deocharai, P.S.- Tufangang, Dist- Cooch Behar on account of suffering from gynaecological problem visited OP No. 3 at his chamber for treatment on 14.03.2016. After clinical examination the doctor advised the complainant for blood test including Haemoglobin, Platelet Count and USG of lower abdomen.
The evidence on record further goes to show that on 16.03.2018 the test was done at Dr. Pompi Bhattacharya's Pathology Lab at Cooch Behar and on examination Haemoglobin Count was found 6.6 gm. The complainant's/patient's blood group was found O+. Immediately after collecting the report the patient party consulted OP No. 3 with the test reports. OP No. 3 prescribed 'Eltroxin 100 mg' and to advise to take admission for blood transfusion of 3 units as HB was very low and the complainant was also advised to consult one physician. On the self-same day the patient party visited one Dr. P. Das, General Physician, who change the power of medicine Eltroxin from 100 mg to 50 mg.
It also remains undisputed that on 17.03.2016 the complainant, patient was admitted in Poddar Seva Sadan Private Limited, Cooch Behar (OP No.1) for transfusion of blood as prescribed by OP No. 3. The complainant's husband, Sri Chandan Datta had collected 3 units of blood from Cooch Behar Municipality Blood Bank (OP No. 2). On the self-same day, the husband of the patient party handed over three units of blood to OP No. 1 nursing home. Accordingly, the blood transfusion was started on 17.03.2016 at 9.30 P.M under the supervision of OP No. 3. On 19.07.2016 after blood transfusion of three units the complainant/ patient was discharged from OP No. 1 nursing home. It is specifically alleged by the complainant that the number of three units of blood were 5746, 5747 and 5748 out of which the husband of the patient donated one unit of blood and two units of blood were purchased from OP No. 2 on payment of Rs. 900/-. It is also specifically alleged by the complainant that during blood transfusion from unit No. 5747 the patient had developed fever and loose motion and complaint the same to OP No. 3 but OP No. 3 ignored the same and told that symptom was normal during blood transfusion and not worry about the same.
The complainant has categorically stated that she was discharged with fever and loose motion on 19.03.2016 after three units of blood being transfused under the supervision and care of OP 3. In this regard, the questionnaire filed on behalf of the Opposite Parties appears to be noteworthy. In a question as to whether the OP No. 1 referred the patient party to collect the blood from the said particular blood bank to which it has been replied - " .... Opposite Party No. 1 referred me namely the patient to collect blood from the particular Blood Bank." In another question as to whether during transfusion the patient asked the Opposite Party No. 3 or the Opposite Party No. 1 to stop transfusion since she was not feeling well to which the complainant/patient replied- "..... I say that during transfusion I asked the Opposite Party No. 3 and Opposite Party No. 1 to stop transfusion since I was not feeling well, at that time"
It may be pertinent to record that the OP No. 1 or OP No. 3 in their written version took a plea that HIV test of the complainant was done at least 6 months back from the date when her HIV-1 antibodies was found positive. However, either OP No. 1 or OP No. 3 has failed to advance any evidence to that effect. On the contrary, in question No. 10 on behalf of the OPs a question put to the complainant/patient-
"10. Whether the first HIV test of the patient was done at least 6 months back from the date when her HIV-1 antibodies was found positive? To which it was replied- "...... I say that my HIV test was done on 07.01.2015 long before 6 months of detecting HIV but at that point of time that is on 7th January, 2015 no positive result was found to such test but negative was found to the HIV test, by Narayana Super Speciality Hospital in Margassa Road at Bangalore."
The said report of the Narayana Diagnostic Centre, Bangalore is available with the record where from it appears that on 07.01.2015 the patient was examined and on examination her Haemoglobin was 9.8 mg and HIV (Rapid) was found negative. Therefore, it becomes crystal clear that prior to visiting OP No. 3 on 14.03.2016 or prior to admission of patient in OP No. 1 nursing home on 17.03.2016 there is no evidence whatsoever to show that the complainant/patient had been detected with HIV positive. Therefore, it is quite apparent that in order to absolve their responsibility somehow, the OP No. 1 and OP No. 3 have made a bald statement that about 6 months prior to the date of transfusion of blood HIV test of the complainant/patient was done when her HIV antibodies was found positive.
Be that as it may, after discharge from OP No. 1 nursing home, the complainant/patient being felt fever and loose motion came to Kolkata and visited one Dr. S.K. Paul on consecutive three dates i.e. 24.03.2016, 25.03.2016 and 26.03.2016. Dr. Paul prescribed medicines and advised for USG abdomen. After examination of USG report it was found that uterus was bulky and multiple calculis in the gall bladder. Despite such treatment the condition of the complainant was not improved, which compelled the complainant was admitted to North DumDum Municipal Hospital for treatment on 29.03.2016 and ultimately, the blood test was done on 30.03.2016 at Suraksha Hospital where HIV positive was detected.
The evidence on record speaks that Sri Chandan Datta, husband of the complainant/ victim was advised by OP Nos. 1 and 3 to purchase blood for which Sri Datta had been to OP No. 2 blood bank to collect the blood. The husband of the victim collected the blood from OP No. 2 blood bank on payment of Rs. 900/-. The OP No. 2 blood bank issued one cross-matching report dated 17.03.2016 against the blood O+. Though the said document speaks 'Cross Matching Report' but essentially the report does not appear to be a cross matching report. In fact, OP No. 2 Blood Bank did not cross match the blood. In the column for 'indication for transfusion' is blank and no remark has been given regarding transfusion.
Surprisingly enough, OP No. 3 also did not cross match before transfusion of blood in order to determine whether the donor's blood is compatible with the blood of the patient. Needless to say, there are several hazards of blood transfusion. Therefore, to prevent complications, physicians must always asked for blood either from the hospital blood bank or from well recognised blood banks, like the red cross blood bank. It must be ensured that the blood has been cross matched and tested for AIDS, Hepatitis, Venereal Deceases etc. Admittedly, the OP No. 3 being a responsible Doctor did not cross match the blood obtained by the husband from OP No. 2 blood bank. The OP No. 2 blood bank is equally responsible for handing over the blood to the husband of the victim without cross match. In fact, the certificate of cross matching report issued by OP No. 2 blood bank has given a note that a cross matching report and the bottle of the blood supplied must be verified before giving transfusion. However, OP No. 1 nursing home or OP No. 3 doctor did not follow the same.
In a decision reported in (1996) 4 SCC 332 (Poonam Verma -vs- Ashwin Patel and Ors.), the Hon'ble Supreme Court observed as under :
"40. Negligence has many manifestations- it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence per se."
In another case reported in (1998) 4 SCC 39 ( Spring Meadows Hospital and another -vs- Harjol Ahluwalia through K.S. Ahluwalia and another ), the Hon'ble Supreme Court has further observed :
"Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."
The above observation implies that where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable. In the case of Kusum Sharma and others -vs- Batra Hospital and Medical Research Centre and Others reported in 2010 (1) CPR 167 the Hon'ble Apex Court has held that as long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence.
Blood transfusion is an important part of day to day clinical practice and provide unique and life saving therapy benefit to the patient. The major concern from point of view of both user( recipient) and provider (clinician) is for safe, effective and quality blood to be available when required. Keeping in view the above guidelines and the authorities referred above it can be safely hold that the Opposite Party No. 3 being a skilled doctor should not have committed that kind of negligence in cross matching of the blood of the donor with the blood of the patient before transfusion of the blood to determine whether the blood of the donors is compatible with the blood of the patient. Therefore, OP No. 3 did not comply with standard practice for blood transfusion and due to such negligence of the Opposite Parties, the complainant contacted HIV.
The evidence on record speaks that on account of suffering from Cholethiasis with Appendicitis the husband of the complainant underwent operation at PD Hinduja Sindhi Hospital at Bangalore and on 17.10.2015 he underwent a Serology Test and at that time it was found that HIV test was detected as non-reactive. It is equally important to record that Namrata, Daughter of complainant who was then 8 years old underwent blood test on 13.04.2016 at West Bengal AIDS Prevention and Control Society at Madhyamgram where her HIV test report was shown as NR i.e. Non- reactive.
Therefore, it is palpably clear for negligence and want of due care on the part of the Opposite Parties, the complainant/ victim has become a HIV affected person. In that perspective, needless to say, the life of the complainant/victim has become a nightmare and as such owing to deficiency of services as per provisions of Section 2(1)(g) read with Section 2 (1) (o) of the Act, complainant is entitled to compensation. For determining the compensation to be awarded, it would be profitable to reproduce the provisions of Section 14 (1) (d) of the Act which reproduces below-
"14. Finding of the District Forum.- (1) if, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods, complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the Opposite party directing him to do one or more of the following things, namely:
................
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the Opposite Party".
The sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of the Opposite Party. Once the said conditions are satisfied, the Consumer Forum would have to decide the quantum of compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable and commensurate to the loss or injury. There is a duty cast on a Forum constituted under the Act to take into account all the relevant factors for arriving at the compensation to be paid. Therefore, the assessment of compensation depend upon the facts and circumstances of the particular case.
Evidently, the family of the complainant/ victim consists of herself, her husband and her daughter who is now 11 years old and prosecuting her studies. After coming into contact with HIV after blood transfusion the complainant has been completely isolated from the society and cannot mix with anyone. The complainant being victim cannot freely live with her husband and even she cannot give birth of another child at this stage when she was 34 years old. The complainant is unable to look after her daughter's education, day to day care including food and health or any other activity for the upbringing of her daughter. This kind of deprivation from the society and even from the family members is a really unfortunate and the same cannot be compensated by any amount of money.
The complainant/victim being a house wife used to render services to her husband and children. Therefore, while estimating, the 'services' of the house wife, a narrow meaning should not be given to the meaning of the word 'services' but it should be construed broadly and one has to take into account the loss of 'personal care and attention' by the victim to her children, as a mother and to her husband, as a wife. The loss of companionship, care and protection etc, the spouse is entitled to get has to be compensated appropriately.
On evaluation of materials on record and having regard to the circumstance of the complainant/victim including her age, the deprivation she had to suffer, the loss of companionship , care and protection which the family members of the complainant are entitled and the pain and sufferings undergone by the complainant and his family members and the suffering of the complainant/victim till the last breathe of her life, we are of the considered opinion that a compensation of Rs. 10,00,000/- each to be paid by each of the Opposite Parties aggregating Rs. 30,00,000/- in the facts and circumstances would subserve the object of justice. Under compelling circumstances, complainant being a resident of a remote place of North Bengal has to come to a long way at Kolkata to seek justice against the reckless medical negligence of the Opposite Parties and as such entitled to litigation costs which we quantify at Rs. 15,000/- to be paid by each of the Opposite Parties at Rs. 5000/- each.
In view of the above discussion, complaint is allowed on contest against Opposite Party Nos. 1 and 3 and ex parte against Opposite Party No. 2 with the following directions:
(i) the Opposite Party Nos. 1 to 3 are directed to pay Rs. 10,00,000/- each totalling Rs. 30,00,000/- (Thirty Lakhs) only to the complainant as compensation to be paid within 90 days from date, in default the amount shall carry interest @ 8% p.a. from the date till its realisation;
(ii) the Opposite Party Nos. 1 to 3 are directed to pay Rs. 5000/- each aggregating Rs. 15,000/- (Fifteen Thousand) only to the complainant as costs of litigation.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER