State Consumer Disputes Redressal Commission
Debashis Saha vs Sri Avoy Rej on 4 January, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/340/2014 ( Date of Filing : 18 Sep 2014 ) 1. Debashis Saha Kansari Para, P.O. & P.S. - Kalna, Dist. Burdwan, Pin-713 409. ...........Complainant(s) Versus 1. Sri Avoy Rej Prop., Menoka Nursing Home, Bhaduri Para, P.O. & P.S. -Kalna, Dist. Burdwan, Pin -713 409. 2. Sri Moloy Rej Prop., Menoka Nursing Home, Bhaduri Para, P.O. & P.S. -Kalna, Dist. Burdwan, Pin -713 409. 3. Dr. Tapas Ranjan Ghosh Siddheswari More, Bhaduri Para, P.O. & P.S. -Kalna, Dist. Burdwan, Pin -713 409. 4. The Asst. Chief Medical Officer of Health Kalna, P.O. Kalna, Dist. Burdwan, Pin-713 409. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER PRESENT: Swapan Kr. Karmakar, Advocate for the Complainant 1 Mr. Debdas Rudra, Advocate for the Opp. Party 1 Mr. Debdas Rudra, Advocate for the Opp. Party 1 Mr. Nadeem Sulaiman, Advocate for the Opp. Party 1 Dated : 04 Jan 2023 Final Order / Judgement SRI SHYAMAL KUMAR GHOSH, MEMBER
The instant consumer case has been filed by the complainant against the opposite parties namely Sri Avoy Rej, Sri Moloy Rej, both proprietors of Menoka Nursing Home, Dr. Tapas Ranjan Ghosh and Asst Chief Medical Officer of Health, Kalna, Dist-Burdwan praying for compensation, conveyance charges and litigation costs which are clearly enumerated in the petition of the complaint.
Succinctly put, the material facts giving rise to the filing of the present consumer case, as culled out from the complaint, are that the wife of the complainant viz. Snigdha Saha, since deceased was admitted at Menoka Nursing Home for delivery of her child on 30/09/2012 at about 6 AM. The LUCS was done on the same date ie on 30/09/2012 at about 8.14 AM and a male baby was born. Both the patient and the child were stable till 11 AM noted by Dr. T. R. Ghosh who operated the patient which was revealed from the bed head ticket of the said patient. At about 1.30 PM the said doctor noted that the patient was suddenly suffered from respiratory distress but the patient was conscious. The doctor applied for some medicines without detecting the actual cause of sudden deterioration of the condition of the patient causing fault on the part of OPs/ Drs./Nursing Home.
It is the case of the complainant that at about 2.50PM the doctor informed the patient party to arrange some bottle of blood and advised to transfer the patient to Kalna Sadar Hospital. After operation, the condition of the patient was serious due to excess bleeding.
It is the case of the complainant that from 1.30 PM to 2.55 PM neither any doctor nor any medical staffs was present to look after the patient at her acute deteriorating condition. While carrying the patient in ambulance for transfer to Kalna Sadar Hospital, no oxygen, IV fluid or adequate nutritional support was given in order to save the life of the patient. The nursing home authority did not also send any medical attendant with the patient while shifting the patient to Kalna Sadar Hospital. Immediately after reaching to the Sadar Hospital, the doctor attended the patient and remarked that the patient was almost in dying condition. However only after 30 minutes from the reaching to the Sadar Hospital, the patient died.
The cause of death of the patient has been mentioned in the death certificate issued by Dr. Krisanu Roy of Sadar Hospital on 30/09/2012 at about 3.50 PM. The death certificate also revealed that the patient died due to Amniotic fluid embolism with severe pallor.
It is the further case of the complainant that though the patient was suffering from deficiency in blood, the doctor never advised for arranging extra blood. After operation, no adequate medical attention or care was given to the patient. Actually the nursing home had no such adequate infrastructural facility in order to perform the operation of the patient.
The Addl Chief Medical Officer of Health, Kalna, Burdwan made a joint enquiry on 10/01/2013 in pursuance with the complaint lodged by the complainant. But no report was supplied to the complainant.
There is a clear gross negligence and deficiency in service on the part of the Ops and for getting proper relief or reliefs, the complainant knocked at the door of this Commission.
The Ops 1 and 2 contested this case by filing written version stating inter alia that the wife of the complainant was under supervision of Dr. Tapas Ranjan Ghosh, OP-3 herein and the said doctor decided to operate the patient on 30/09/2012 at about 7.14 AM and a male baby was born weighing about 3.5 Kg. The patient and baby both were stable at 11 AM noted by Dr. Ghosh. At about 1.30PM the said doctor noted that the condition of the patient was deteriorating and he suggested for arranging blood. The said doctor also advised for transferring the patient to the Sadar Hospital, Kalna. The ops 1 and 2 further stated that they are the owners of the nursing home. At the time of happening of the event they were not present at the said hospital. The manager of the said nursing home informed them about the said incident and the condition of the patient thereafter. It is false that when the patient was suffering from deficiency in blood and respiratory problem, the nursing home authority removed the saline and oxygen from the patient at her distress condition. Rather after hearing about the patient's condition, they rushed to the nursing home and instructed the staffs to co-operate with the patient and her relatives. The said ops further stated that the saline bottle was all through with the patient till she was shifted to the Government hospital, Kalna, within the jurisdiction of Burdwan. At the time of critical condition of the patient, the doctor, nursing staffs including them all were present.
It is the further case of the ops 1 and 2 that while carrying the patient towards Kalna, Burdwan, the doctor followed the ambulance in his private car and the manager of the nursing home accompanied with the said ambulance by his own motor cycle. The ambulance was arranged by the husband of the patient, ie the complainant herein and it was gross negligence on his part that the there was no such arrangement of oxygen and other required facilities. On seeing the said unhappy situation, the nursing home authority arranged for oxygen cylinder as it was very urgent for the patient.
It is the case of the ops 1 and 2 that the patient's relatives or her husband never asked for post mortem to know the exact cause of death of the patient or the patient party never allowed the doctors to do the post mortem of the patient, since deceased. It was very clear that the patient died due to amniotic fluid embolism with severe pallor.
The ops 1 and 2 further stated that the nursing home was established in the year2000 and since 12 years they used to provide service to the people. The nursing home authority has applied for renewal of their license for the year 2012 to 2015 and has also deposited the requisites fees for renewal but before getting the renewed license, this unfortunate event has been occurred and their nursing home has been closed for ever.
By filing the written version, ops 1 and 2 stated that they have not yet received the enquiry report dated 10/01/2013 held by Addl. Chief Medical Officer of Health, Kalna.
They also stated that due to closure of the nursing home they are now suffering from huge financial loss and they have sold out all equipments and instruments of the nursing home and provided the said nursing home to one Anup Kumar Das on lease at monthly rent of Rs.14,000/- and the amount of said rent has been divided equally by the ops 1 and 2/nursing home.
The instant case is false, frivolous and vexatious and the same is liable to be dismissed with costs.
The OP no-4 did not file any written version and as such the case has been fixed for ex-parte against the OP no-4.
The ld counsel appearing for the complainant stated more or less same arguments which are clearly enumerated in the petition of complaint.
The ld counsel appearing for the Ops no-1 and 2 also submitted more or less same views and statements which are elaborately stated in their written version.
We have heard the ld counsels for the complainant and ops no-1 and 2 at length and in full.
We have perused materials on record meticulously.
We have considered the submissions of the ld counsels.
We have carefully perused the discharge certificate issued by Menoka Nursing Home wherefrom it appears that the wife of the complainant viz. Snigdha Saha aged about 41 years was under the treatment in the aforesaid nursing home from 30/09/2012 at 6 AM to 30/09/2012 at 2.40 PM. At about 7.14 AM on the self same date Snigdha Saha gave birth a male child weighing of 3.5 KG in the said nursing home. But due to sudden post partum collapse of the patient viz. Snigdha Saha, the Menoka Nursing Home took an initiative to transfer her to Kalna Sadar Hospital as the said hospital was not well equipped with all amenities in order to provide the life support of the patient.
It is the main contention of the complainant that while carrying the patient from Menoka Nursing Home to Kalna Sadar Hospital, the ops 1 to 3 did not provide any proper treatment to the patient. It is also the case of the complainant that from 1.30 PM to 2.40 PM on 30/09/2012 the ops 1 to 3 failed to provide oxygen, IV fluid or adequate nutritional support in order to save the life of the patient. It is the settled principle of law, at this juncture, that the burden of proof lies upon the complainant in order to prove the actual fact of the case. But no strong/ supportive documentary evidence has been filed by the complainant in support of his plea. Rather in counter the ops stated that while carrying the patient, the doctor ie op no- 3 followed the ambulance in his private car and the manager of the nursing home also followed the said ambulance by riding of his own motor cycle. Under such circumstances we can safely rely upon the current decision filed by the ld counsel appearing for the opposite parties 1 to 3 which has been decided in DES RAJ SINGLA AND OTHERS VS DAYANAND MEDICAL COLLEGE AND HOSPITAL AND OTHERS reported in CPR 2022 (1) CPR 45 (NC) wherein the Hon'ble National Commission held that the onus to prove medical negligence lies largely on the complainant and the onus can be discharged by leading cogent evidence. In the instant case the consumer / complainant completely failed to provide any cogent evidence to prove the medical negligence on the part of the respondents/opposite parties.
There is no hesitation to state that it was the decision of the complainant to admit the patient in the said nursing home instead of Sadar Hospital, Kalna. At this juncture, it is our view that when the said nursing home was not well equipped with all supportive amenities, it should be just and proper to admit the patient, on the very early occasion, at the Sadar Hospital, Kalna, instead of aforesaid nursing home for the purpose of her LUCS.
At the time of final hearing the ld counsel appearing for the complainant submitted some medical journals wherefrom it appears to us that the postpartum haemorrhage is a severe bleeding after giving birth of a child. PPH usually occurs within 24 hours of child birth but it can happen up to 12 weeks. It is very serious and potentially fatal condition. It causes a sharp decline in blood pressure, which can restrict blood flow to our brain and other organs which is called shock and it can lead to death. At this stage it is our view that mere averment in the petition of complaint and submission of medical journal cannot be treated as an evidence in the field of medical negligence.
Regarding transfer of the patient, we seem that when the patient was gradually deteriorated due to proper medical support and also when the nursing home concerned understood and realized that the patient was undergoing life threatening condition for PPH, the concerned nursing home took the correct view to transfer the patient immediately to Sadar Hospital, Kalna in order to save the life of the patient. Be it mentioned here that the aforesaid nursing home was not well equipped with modern facilities in the field of medical treatment. So under such circumstances, we find no negligence/fault on the part of the ops/doctor/nursing home.
We have carefully perused the enquiry report dated 28/01/2013 issued by A.C.M.O.H, Kalna Burdwan and Dr. R.N. Mondal, Gynecologist, Katwa, S.D.Hospital, Burdwan wherefrom it appears to us that Dr. T.R.Ghosh, the OP no - 3 visited the case time to time and tried best to salvage the patient. This post partum collapse was due to amniotic fluid embolism. He asked for blood but the blood bank of the hospital was closed on that day ie 30/09/2012 Sunday. Ultimately he referred the patient to Kalna Sadar Hospital at 2.55 PM. The patient was admitted at 3.25 PM and expired at 3.50 PM at kalna Sadar Hospital. The said report also discloses that no post mortem was done so it is beyond their capability to declare the exact cause of death of the patient.
Due to closer of the blood bank the aforesaid ops/nursing home and doctor have failed to collect the blood which does not constitute the negligence or fault on the part of the Ops. In this regard we can safely rely upon a remarkable decisions of Hon'ble Supreme Court in Chanda Rani Akhouri vs M.S. Methusethupathi decided on 20th April 2022, wherein it was held that the simple lack of care, error of judgment or an accident, is not a proof of negligence on the part of a medical professional.
We have perused another independent expert opinion issued by IPGME&R, SSKM Hospital wherein the expert committee also opined that as post mortem examination was not done, it is beyond our capacity to conclude any negligence from the part of the treating doctor regarding the management of the diseased.
In pursuant to the aforementioned enquiry report, it is clear to us that without PM, the doctors of the enquiry committee were not in a position to state the exact cause of death of the patient. At this juncture we agree with the views of the aforesaid enquiry committee and hold that in absence of PM of the patient, it is very difficult to decide that whether there is any gross negligence or deficiency in service on the part of the Ops or not.
In this respect the patient party had an ample opportunity to take proper steps regarding arrangement of post mortem of the patient but without PM the patient party took the body from the Ops concerned which constituted a gross mistake on their part.
It is settled principle of law that without any cogent evidence, no blame should be given to the Ops/nursing home and doctor. Rather it is the bounded duty and obligation of the civil society to ensure that the medical professionals are not necessarily harassed or humiliated so that they can perform their professional duties without any fear and anxiety and to work for the welfare of the patients which is the paramount consideration for the medical professions.
Considering all aspects from all angles and keeping in the mind of the principles of law and also regard being had to the submissions of the ld counsel appearing for both the parties we firmly hold that the complainant fails to prove his case.
Accordingly the case fails and stands dismissed on contest against the Ops without any order as to costs.
The instant consumer case stands disposed of.
Note accordingly.
[HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER