State Consumer Disputes Redressal Commission
Dr. Sanjida Banu. vs Mr. Firoz Kaji. on 24 April, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/57/2011 1. Dr. Sanjida Banu. W/o Dr. Abdul Motin Molla, Abul Fazal Enclave, Jamia Nagar, Okhla, New Delhi-110 025 & Permanent Residence- Vill. & P.O. Alipur, P.S. Shyampur, Dist. Howrah - 711 315. ...........Complainant(s) Versus 1. Mr. Firoz Kaji. Proprietor of M/s. Life Care Hospital & Clinic, Bazarpara, Uluberia, Dist. Howrah. 2. Calcutta Heart Clinic & Hospital Block - HC, Sector - III, Salt Lake City, Bidhannagar, Kolkata - 700 016. 3. AMRI Hospitals Salt Lake, Block - JC, Nos. 16 & 17, Salt Lake City, Kolkata - 700 098. 4. Rotary Narayana Nethralaya CN - 5, Sector - V, Salt Lake City, Kolkata - 700 091. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MRS. MRIDULA ROY MEMBER HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Complainant: Mr. Uma Sankar Bannerjee., Advocate For the Opp. Party: Mr. Goutam Lahiri, Advocate ORDER
24/04/15 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This is a complaint case on medical negligence wherein it has been alleged by the Complainant that she is a doctor in Homoeopathic Medicine and Surgery. She became pregnant in 2009 and had started residing with her husband at her place of work in New Delhi. As a routine check up of the health condition the Complainant used to attend the chamber of Dr. Asha Jain, a Gynaecologist in Allopathic Medicine and Surgery and attached to M/s Nehru Homoeopathic Medical College and Hospital under the Directorate of Indian System of Medicine and Homoeopathy in New Delhi. The Complainant had also undergone pathological tests. The husband of the Complainant decided to shift the Complainant to her native place at Howrah during her pre-delivery period and, accordingly, in the month of June 2009 the Complainant had shifted to her in-laws place in the district of Howrah. At Howrah the Complainant had been checked up by Dr. Malabika Mishra (Das), Consultant Gynaecologist and also by Dr. K. K. Guha, Gynaecologist and Obstetrician at M/s Apex Nursing Home, Uluberia. Complainant had also done ultrasonography of her pregnancy profile and also the routine blood tests. On 26/10/09 the Complainant had developed labour pain in the evening and, accordingly, her husband along with the assistance of his brother had admitted the Complainant at the Nursing Home, namely, M/s Life Care Hospital and Clinic at Bazarpara, Uluberia owned by OP No.1 Mr. Firoz Kaji, proprietor. Mr. Firoz Kaji was a non-medical person and in spite of being fully aware of his infirmity and/or deficiency in the wisdom of medical science had initially tried for normal delivery after applying some intravenous injections along with intravenous fluid (saline). Around 1.00 a.m. OP No.1 had told the Complainant's husband that labour pain had not been progressive any more, it was better to go in for caesarean delivery. The husband of the Complainant had given his consent for caesarean delivery as suggested by OP No.1. The OP No.1 had then called in one Anesthetist and Dr. Bappaditya Maity, MBBS, DMCH, that is, Maternity and Child Care Trained Doctor, but not a Gynaecologist and/or Obstetrician. Being suggested by the OP No.1 Dr. Maity with the assistance of OP No.1, Mr. Ashique, the Anesthetist, one nurse and another staff of the said Hospital and Clinic had caused the delivery of the baby by caesarean section at about 2.45 a.m. On 27/10/09 at about 11 a.m. the Complainant had started severe uterine bleeding which the Complainant had reported to her husband as he had been present in front of her at that point of time. The husband of the Complainant brought it to the notice of the concerned Hospital Authority who had instructed the attendant, namely, Gita, to take care of the Complainant and the attendant had cleaned off the inside portion of the uterine manually which is normally called uterine toileting. The attendant had not taken recourse to any antiseptic measure while performing her said work of uterine toileting. Mr. Ashique, one of the ward boys of the said Hospital and Clinic had given one injection immediately and advised the husband of the Complainant to bring from outside one bottle of Haemacel for the purpose of transfusing the same to the Complainant afterwards. From 30/10/09 the Complainant had developed fever with oedema at her feet and face (that is, the place of her feet and the face had swollen) which ultimately had spread at different parts of the body. The Complainant was advised not to worry about the development of oedema and fever. Four bottles of blood brought by the Complainant's husband had been transfused.
It has further been alleged that on 31/10/09 the Complainant felt pain in her anterior abdominal wall in and around the places where the caesarean incision had been made. It was brought to the notice of Dr. Maity who expressed the need of her getting fresh dressing at the place of incision. From 01/11/09 the abdomen of the Complainant was fairly swollen and the pre-existing oedema had extended to the whole body followed by respiratory problem. On 02/11/09 in the morning the wound site had been opened by Mr. Ashique and he observed that three stitches had been removed. Dr. Maity examined the Complainant and told that infection had grown at the wound site and the same would be managed by dressing and antibiotic treatment. The OP No.1 on being repeatedly requested by the husband of the Complainant called in a doctor named Dr. S. Sarkar who after examining the patient suggested some investigations. On 03/11/09 in the morning the Complainant had complained of severe respiratory discomfort and oedema and pain in abdominal wall. Being puzzled the husband of the Complainant requested Mr. Firoz Kaji to refer the Complainant to any other well equipped reputed Hospital/Nursing Home where the Complainant could get some better care and treatment, but he declined to comply with the said request. The husband of the Complainant had decided to transfer the Complainant to a Hospital having better infrastructure and on 03/11/09 at about 1.30 p.m. the husband of the Complainant on submitting risk bond got the release of the Complainant and admitted her to Calcutta Heart Clinic and Hospital at Salt Lake, that is, OP No.2. As no appreciable improvement of the Complainant had been noticed and her high fever continued in spite of the treatment the husband of the Complainant had shifted the Complainant to Amri Hospital, that is, OP No.3. After treatment at OP No.3 the Complainant was released and the discharge certificate dated 06/01/10 was issued by Amri Hospital. On 06/02/10 Complainant had experienced severe pain of her lower abdomen and she was admitted at OP No.3 on 07/02/10 at 12.43 a.m. During laparotomy, the concerned surgeon had made the following findings:
Existence of multiple band adhesions causing strangulation of gut;
Gangrenous gut, existing along 6 feet length in the intestinal tract mainly in the Jejunum portion;
Accumulation of free fluid seen in abdomen, which had been sent for culture and sensitivity test (C/S).
The Complainant was shifted to HDU (High Dependency Unit) of the said Amri Hospital and on 09/02/10 she was shifted to general ward. Complainant was discharged from the said Hospital on 17/02/10. Doctors of Rotary Narayana Nethralaya at Salt Lake City on examination found no visual power in the right eye and in the left eye the visual acuity of the Complainant had been found to be 6/18. The Complainant was discharged from the said Hospital on 18/03/10. During the period of routine check up at Rotary Narayana Nethralaya at Salt Lake City the Complainant had been declared as physically disabled person of visual type to the extent of 50% by the Medical Board of Uluberia Sub-Divisional Hospital on 09/06/10. Under such circumstances, the complaint has been filed praying for direction upon the OPs, particularly the OP No.1, at whose instance the subsequent sufferings of the Complainant had originated, to pay the amount of Rs.30,11,460/- towards reimbursement of the expenses of the treatment of the Complainant and a further sum of Rs.22 lakh as compensation.
OP No.1 has filed written objection denying the material allegations raised in the complaint and contending, inter alia, that the complaint is liable to be dismissed for non-joinder and mis-joinder of necessary parties. The Complainant was admitted in the OP No.1 and the entire services had been provided by OP no.1 without any charges. The Complainant failed to produce documentary evidence as to whether or not the partial disablement of the right eye or other ailments had developed due to the treatment made by the concerned doctors engaged in OP No.1. Without any such document the allegation of deficiency in service on the part of OP No.1 is not maintainable. The Nursing Home is under the proprietorship of OP No.1 and he not being a doctor had no knowledge of treatment etc. and the Nursing Home has been running by the specialized doctors who made the treatment. The treating doctors were casually engaged in the Nursing Home of OP No.1 and they were not the permanent employees or permanent doctors of OP No.1. They are the private practitioners and they are engaged by OP no.1 Nursing Home as and when required. The OP No.1 denied that he ever assisted the concerned doctors for making caesarean section and the allegation is baseless. OP No.1 has filed written argument.
OP No.2 has filed W.V. contending, inter alia, that the complaint suffers from non-joinder of necessary parties. There is no specific allegation in the complaint as against OP No.2. The OP No.2 has denied that any service was rendered by it to the Complainant and averred that the Complainant has no cause of action as against OP No.2. Dr. D. K. Roy, a surgeon of Amri Hospital, Salt Lake was called in to check the Complainant with the consent of the family members of the Complainant. The Complainant has no bonafide claim against OP No.2.
The Learned Counsel for the Complainant has submitted that the allegation of the Complainant is mainly against OP No.1. It is contended that the Complainant was admitted in OP No.1 Hospital for delivery and there were serious laches on the part of the doctors in OP No.1 Hospital. It is submitted that uterus was not cleaned up after delivery and, as a result, the infection started and subsequent complications could not be managed by the doctors at OP No.1 signifying serious deficiency in service on the part of OP No.1. It is submitted that the infection started when the Complainant remained admitted in OP No.1 and, subsequently, treatment was made at OP Nos.2 and 3 and other Institutions and ultimately the Complainant had to suffer loss of vision. It is submitted that due care and caution were not taken by the doctors and medical staff at OP No.1. The Learned Counsel for the Complainant has submitted list of decisions reported in AIR 2002 Rajasthan 104 (CDJ 2001 Raj HC 055) [R. P. Sharma vs. State of Rajasthan]; 2000 II CPJ 262 (CDJ 1999 U.T. SCDRC) [Jaswinder Singh vs. Dr. J.S. Saini]; 2002 II CPJ 243 (CDJ 2000 WBSCDRC 022) [Sourindra Mohan Ghosh vs. Dr. D. V. Pahwa]; 2002 I CPJ 28 (CDJ 2001 Delhi SCDRC 011) Dr. J. P. Goel vs. Smt. Pushpa Verma]; 2007 III CPJ 179 (CDJ 2007 (Cons.) Case No.046 [Sarwat Ali Khan vs. Prof. (Dr.) R. Gogi]; 2007 IV CPJ 239 (CDJ 2007 (Cons.) Case No.372) [Bassi Hospital Pvt. Ltd. vs. Pankaj Gupta]; 2004 IV CPJ 40 (CDJ 2004 SC 1142) [Savita Garg vs. Director, National Health Institute]; 2007 II CPJ 9 (CDJ 2007 (Cons.) Case No.011) [Sushma Sharma vs. Bombay Hospital]; 2002 II CPJ 363 (CDJ 2002 Ker HC 438) [Leela Bai vs. Sebastion]; CDJ 2014 APSCDRC 361 [S. Anil Kumar vs. The Managing Director, Care Hospital & Ors.].
The Learned Counsel for the OP No.1 has submitted that specialized doctors in OP No.1 treated the Complainant and the caesarean section was done without any complication. It is submitted that the Complainant came with some people and had given threat to the OP No.1 for release and shifting the patient. It is submitted that the Complainant is a homoeopathic doctor.
We have heard the submission made by both sides and perused the papers on record. It is the contention of OP no.1 that the Complainant did not pay the medical bills and the services were rendered by OP no.1 without charges. It appears from the letter of the Complainant's husband dated 13/05/10 that request was made for supply of the medical bills covering the total payment and expenditure for the purpose of reimbursement of the medical expenses from his employer. It appears from pages 68 to 71 of annexure 'C' that different tests were done at OP No.1. The husband of the Complainant wrote a letter to the Manager of OP No.1 on 11/04/10 for the issuance of bill in connection with the treatment of the Complainant. The Complainant has also filed series of papers including invoice issued by OP Nos.2, 3 and 4 showing payment of charges regarding the treatment done at those Hospitals. Under such circumstances, we are unable to accept the contention of the Learned Counsel for OP No.1 as to the non-payment of necessary charges. The Complainant is a consumer within the meaning of section 2(1)(d) of the C. P. Act, 1986.
It is the specific contention of the Complainant that on the night of 26/10/09 she had developed labour pain and was admitted on that date at 00.30 a.m., that is, 27/10/09. It has been stated by the Complainant in evidence-in-chief that the OP No.1 who was a non-medical person had initially tried for normal delivery after applying intravenous injections and ultimately called in Dr. Bappaditya Maity, MBBS, DMCH, a Maternity and Child Care Trained Doctor and with the assistance of the Hospital staff had done the caesarean section. On this point it has been stated by OP No.1 in his evidence-in-chief at paragraph 11 as follows:
"Moreover, it is an admitted position that the Complainant was admitted at late night when it was not possible to search for a gynaecologist."
From such evidence of OP No.1 it is evident that gynaecologist was not available at that point of time when caesarean section was made. Moreover, it appears from the annexure 'B' (treatment sheet) to the written argument of OP No.1 that on 27/10/09 at 12.27 a.m. some medicines were prescribed and advice was given to consult gynaecologist/obstetrician urgently for proper management. From the treatment sheet written by Dr. B. Maity on 27/10/09 (annexure 'C') it appears that on examination "oedema all over body (+)" was noted. From annexure 'D' it appears that the baby was born at 2.46 a.m. On 28/10/09 it was noted that patient was complaining of pain and transfusion of blood was advised. Dressing was also done as noted in the treatment sheet dated 28/10/09. Oedema was also noted in the treatment sheet dated 28/10/09. From the evidence as appearing on record it is clear that at the time of admission till the delivery of the baby by way of caesarean section the services of any gynaecologist could not be rendered by OP No.1. Admittedly, Dr. B. Maity was not a gynaecologist/obstetrician. It is the specific contention as made in paragraph 7 of the complaint that Dr. B. Maity, MBBS, DMCH was a Maternity and Child Care Trained Doctor, but not a gynaecologist/obstetrician. Against this averment there is no specific denial by the OP No.1. On the other hand, it has been stated in paragraph 12 of the evidence-in-chief of the OP No.1 that since the situation of the Complainant went critical, the husband of the Complainant made a request to Dr. B. Maity and had given consent in writing for caesarean section. The contention that the husband of the Complainant requested Dr. Maity for caesarean section is not acceptable. The contention of the Complainant that Dr. Maity was not a gynaecologist/obstetrician and did the caesarean section being non-traversed by specific denial by OP No.1, becomes an admitted fact. It shows serious deficiency in service on the part of OP No.1 about performing caesarean section without the services of a qualified gynaecologist.
After getting release of the Complainant from OP No.1 she was shifted to OP No.2 on 03/11/09 where, as it appears from the evidence, she developed sepsis, (ARDS), necrotising fascitis and debridement was done on 18/11/09 after which the patient desaturated and was intubated and ventilated. Thereafter as it appears from the materials on record that the patient was admitted to OP No.3 Amri Hospital, Salt Lake and she remained there from 18/11/09 to 06/01/10 for further management. At Amri Hospital as it appears from the discharge summary appearing at page 111 being annexure to the complaint that she was taken up for debridement of abdominal wall wound and the diagnosis was "spreading necrotizing fasciitis of anterior abdominal wall". It further appears from the papers being annexure 'G' appearing at page 153 to the complaint and 155 to the complaint that the Complainant was treated in Rotary Narayana Nethralaya OP No.4 wherein on examination it was found "her best corrected visual acuity was perception of light in the right eye and 6/18, N8 in the left eye". It appears from annexure appearing at page 155 to the petition of complaint that Uluberia Sub-Divisional Hospital issued disability certificate as to the loss of vision in the eye to the extent of 50%. The Complainant was also treated at AIIMS, New Delhi. From the evidence and the materials appearing on record it is clear that when the Complainant remained admitted in OP No.1 there was infection and as a result there was oedema all over body as noted in the treatment sheet and subsequent complications could not be managed by the doctors working in OP No.1. As a consequence thereof the Complainant had to be admitted in OP Nos.2, 3 and 4 for further management of the post delivery complications. All the sufferings originated at OP No.1 due to the failure of the doctors to manage the post delivery complications. The maxim of res ipsa loquitur is squarely applicable in the circumstances of the instant case. Having regard to the submissions made by both sides and considering the materials on record, we are of the view that there was serious deficiency in service on the part of the OP No.1 and OP No.1 alone was responsible for the sufferings of the Complainant. The other OPs tried their best as per standard medical practice and procedure for management of the complications that had arisen and in this regard we are of the view that there was no deficiency on the part of the OP Nos.2, 3 and 4. Moreover, there was no specific allegation against OP Nos.2 to 4. The OP No.1, therefore, is liable to pay compensation to the Complainant. As regards the quantum of compensation it is on record that the Complainant is a medical practitioner in homoeopathic medicine and at the time of admission in OP No.1 she was 30 years old. The Complainant has submitted series of bills showing payment of necessary charges for the treatment and also the disability certificate towards loss of vision to the extent of 50%. Having regard to the totality of the circumstances, we are of the view that the Complainant is entitled to get compensation of Rs.10 lakh and Rs.3 lakh towards cost of treatment and Rs.25,000/- as litigation cost.
The complaint is allowed on contest against OP No.1 and dismissed against rest. The OP No.1 is directed to pay compensation of Rs.10 lakh towards mental agony and sufferings, Rs.3 lakh towards cost of treatment and Rs.25,000/- as litigation cost to the Complainant within 45 days from the date of passing this order failing which interest @ 9% p.a. shall accrue on the entire amount from the date of default till realisation. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MRS. MRIDULA ROY] MEMBER [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER