National Consumer Disputes Redressal
Dr. Sunil Thakur vs Gorachand Goswami & Ors. on 29 January, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 175 OF 2006 (Against the order dated 28.02.2006 in S.C. Case No. 61/O/2001 of the W.B. State Consumer Disputes Redressal Commission, Kolkata) Dr. Sunil Thakur Avenue Nursing Home 3A, Madan Street Kolkata-700072 Residing at 34, Bagmari Road Plot No. D/4, Kolkata-700054 Appellant Versus 1. Gorachand Goswami S/o Late Manick Lal Goswami Residing at Dakshini Housing Estate Phase-II, House No. C-1/19 P.S. Metiabruz, Kolkata-700018 2. M/s Avenue Nursing Home 3A, Madan Street Kolkata-700072 Jointly owned by (i) Fatima Khatoon (ii) Hasma Khatoon (iii)Mahasur Rahaman 3. Lions District 322 B Blood Bank 27/8A, Waterloo Street Kolkata-700069 Respondents BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER For Appellant : Mr. Suchit Mohanty, Advocate For Respondents : Ms. Meenakshi Midha, Advocate for R-1 NEMO for R-2 R-3 already ex-parte Pronounced on 29th January, 2013 ORDER
PER VINEETA RAI, MEMBER
1. This first appeal has been filed by Dr. Sunil Thakur, Appellant herein and Opposite Party before the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the State Commission) which had allowed the complaint of medical negligence filed against him by Gorachand Goswami, Respondent No.1 and others herein and Complainant before the State Commission.
FACTS :
2. Manick Lal Goswami (hereinafter referred to as the Patient) fell down from his bicycle while returning home from his office on 14.11.2000 and sustained injuries, which included a fracture in the neck of the femur. Respondent No.1, who was Patients son, contacted Appellant-Dr. Sunil Thakur, who was a Consultant Orthopedic Surgeon attached to M/s Avenue Nursing Home on telephone the same night and who advised him to bring the Patient for medical examination the next day i.e. on 15.11.2000, where after an x-ray was taken confirming the fracture, patient was admitted in the Avenue Nursing Home and operated upon by the Appellant on 17.11.2000. Prior to the surgery, the Appellant advised that one bottle of blood would be required, which would be provided by the Avenue Nursing Home. Blood was accordingly supplied and transfused and the operation completed by 5.00 p.m. However, blood transfusion continued even after the surgery. Soon after the blood transfusion, the Patient started frothing from the mouth and complained of difficulty in breathing and shivering. The next day, he could not urinate and his eyes were found to be deep yellow in colour. Subsequently, a Nephrologist after examining the Patient advised that since he might need Dialysis and this facility was not available in the Avenue Nursing Home, the Patient be shifted to Calcutta Medical Research Institute (CMRI), which was done. On request of CMRI to the Blood Bank attached to it, one bottle of blood of A+ group (being the blood group of the Patient) was supplied for the Patients Dialysis.
However, the condition of the Patient continued to deteriorate and despite being put on a ventilator he passed away on 01.12.2000. As per the death certificate issued by CMRI, one of causes of death was attributed to the history of mismatched blood transfusion. It was contended that while the blood group of the Patient was A+, the blood which was transfused to him at the Avenue Nursing Home on 17.11.2000 was of B+ group as per the report of the Blood Bank which supplied the blood based on an enclosed blood specimen sent with the requisition slip. It was also stated that the Patients condition actually deteriorated following the transfusion of B+ blood while the Patient was under the treatment and care of the Appellant, which clearly reveals gross medical negligence as also deficiency in the treatment of the Patient on the part of the Appellant as also the Nursing Home. Being aggrieved by the loss of his father, who was the sole earning member of the family, Respondent No.1 filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that the Appellant and Avenue Nursing Home be directed to jointly and severally pay Rs.6 Lakhs as compensation.
3. Appellant on being served filed a written rejoinder disputing the allegations made in the complaint. It was stated that as an Orthopedic Surgeon he operated successfully on the Patient and no complaint regarding the surgery was made by Respondent No.1. So far as the arrangement for transfusion of blood was concerned, it was submitted that this was arranged by the Patients relatives directly from the Lions District 322B Blood Bank at Waterloo Street, Kolkata and it was the duty of the Blood Bank to correctly identify the blood group of the Patient and thereafter supply the blood after matching it with the Patients blood group. Further, as per the usual practice, it is for the doctors and para-medical staff present in the operation theater of the Nursing Home to carefully verify the name and blood group of the Patient before transfusion and for this the responsibility cannot be fixed on the Orthopedic Surgeon. It was further stated that the Patient subsequently developed other complications like urination problems etc., which were not due to any medical negligence or deficiency in service in operating the Patient and, therefore, the allegations of medical negligence and deficiency in service are without basis.
4. The State Commission after hearing the parties allowed the complaint and held the Appellant guilty of deficiency in service and medical negligence. The operative part of the State Commissions observations is reproduced:
27. we are inclined to say O.P. No.-2* is evidently responsible for deficiency in service in terms of Sec.2(g) of the C.P. Act, 1986 on the following counts:-
(i) O.P. No.-2 failed to ascertain the blood Group of the deceased before sending the sample to the Blood Bank despite the fact that there was a reliable document with the complainants relatives in respect of Blood Group of the deceased though the Complainant had drawn attention of O.P. No.-2 to the said document.
(ii) O.P. No.-2 failed to mention the blood group of the deceased while sending sample to the blood Bank with a requisition which is otherwise mandatory.
(iii) O.P. No.-2 committed gross negligence by accepting and transfusing a blood group other than A+ve which was the deceaseds confirmed blood group.
*(i.e. the Appellant before the National Commission)
(iv) O.P. No.-2 failed to follow instructions contained in the Issue Document of Blood Bank where caution is printed on the Poly Bag containing Blood that in case of any reaction, the Surgeon/Physician must send sample of patients blood, a small sample of the blood transfused, patients symptoms evident on transfusion.
5. The State Commission, therefore, directed the Appellant to pay a compensation of Rs.5,28,000/- and Rs.10,000/- as costs to Respondent No.1. The Avenue Nursing Home (Opposite Party No.1 before the State Commission) was also directed to pay Rs.10,000/- as compensation for their act of negligence and deficiency in service for failing to carry the correct blood sample of the Patient to the Blood Bank. The State Commission, however, concluded that no case of negligence against the Blood Bank was established. Appellant as well as the Avenue Nursing Home were directed to pay the above amount within 30 days from the date of communication of the order, failing which it was to carry interest @ 12% per annum till the amounts were paid.
6. Aggrieved by this order, only the Appellant (i.e. Opposite Party No.2 before the State Commission) filed this first appeal.
7. Learned counsel for both parties made oral submissions.
8. Learned counsel for the Appellant reiterated that the State Commission gave an erroneous finding of medical negligence against Appellant since his responsibility was only that of an Orthopedic Surgeon and admittedly the surgery was successfully conducted by him without any complications. So far as provision of blood is concerned, the responsibility is that of the concerned Nursing Home as also the Blood Bank to cross check the blood group with the blood required and clearly state these requirements in the requisition slip sent to the Blood Bank. In case of any deficiency in doing so, including not giving the full details, it is the Nursing Home (i.e. Opposite Party No.1 before the State Commission) and the Blood Bank, which are solely responsible and not the operating surgeon i.e. the Appellant in the instant case. It was further stated that the CMRI to whom the Patient was referred issued a death certificate without careful consideration of the facts and, therefore, gave multiple reasons for the cause of death but nowhere did it say that it was because of the faulty surgery. Further, Respondent No. 1 did not produce any expert medical evidence or person to prove his case. The Appellant was only a consulting doctor who had been called to the Avenue Nursing Home to conduct the surgery and was not a regular member of its staff.
Therefore, in respect of any negligence committed by the Nursing Home and its staff in not verifying the blood group before sending it to the Blood Bank, the Appellant cannot be held responsible.
9. Learned counsel for Respondent No.1 on the other hand stated that the Appellant cannot take the plea that the blood was arranged for the Patient by his relatives and it was the responsibility of the relatives, the concerned hospital and the blood bank to ensure that a correct requisition slip was sent because there is evidence on record that the requisition slip dated 16.11.2000 to the blood bank was signed by Dr. Sunil Thakur (i.e. the Appellant) stating that one unit of blood for the Patient was required and a specimen blood sample attached.
The requisition slip did not mention the blood group of the Patient. The blood sample was cross-checked in the blood bank and found to be of B+ group and accordingly blood of B+ group was sent for transfusion for the Patient.
It is clear from this that the Appellant had signed the requisition slip without verifying whether the correct blood specimen had been sent and whether any blood group was mentioned. In view of these facts and the death certificate, which confirmed that one of the causes of death was mismatched blood transfusion, the same was rightly attributed by the State Commission to the Appellants medical negligence.
10. We have considered the submissions made by learned Counsel for both parties and have carefully gone through the evidence on record. The fact that the Patient was admitted in the Avenue Nursing Home for a surgery by the Appellant following fracture of the femur neck is not in dispute.
It is further a fact that a requisition slip was sent to the Blood Bank for blood transfusion required during and after the surgery and that the blood specimen attached to it was not of the Patient but of some other person and, therefore, the blood sent by the Blood Bank did not match with the Patients blood group leading to serious complications, which contributed to his death. Appellants contention that he was not responsible for arranging the blood is not acceptable in view of the fact that he had admittedly signed the requisition slip sent to the Blood Bank enclosing with it a wrong specimen of blood. Because of this serious lapse, the Patient developed other complications following the blood transfusion relating to his liver and kidney functions because as per medical literature there is a nexus between transfusion of mismatched blood and renal urinary and liver problems*.
[*Source :
(i) Medical Dictionary FARLEX
(ii) Complications of Blood Transfusion (Maxwell & Wilson Oxford Journal)]
11. Counsel for Appellants contention that Respondent had been unable to produce any medical evidence in support of their case is also not tenable because in the instant case the principle of ipsa res loquitur is clearly applicable.
12. Further, Counsel for Respondent No.1 has brought to our notice judgments of the National Commission in Dr. Kam Inder Nath Sharma & Ors. V. Satish Kumar & Ors. [II (2005) CPJ 75 (NC)] and Dr. K. Vidhyullatha v. R. Bhagawathy [I (2006) CPJ 136 (NC)] as also of the Honble Supreme Court in Post Graduate Institute of Medical Education & Research v. Jaspal Singh & Ors. [II (2009) CPJ 92 (SC)] in support of the contention, wherein it has been concluded that wrong blood transfusion is an error, which no doctor/hospital exercising ordinary skill would have made, and such an error is a sure instance of medical negligence. Keeping in view the facts in this case, as discussed above, and respectfully following the judgment of the Honble Supreme Court as also of this Commission, which are relevant in the instant case, we agree with the finding of the State Commission that the Appellant was guilty of medical negligence and uphold the same.
12. This first appeal having no merit is dismissed. Appellant is directed to comply with the order passed by the State Commission and pay the awarded amount of Rs.5,38,000/- (i.e. Rs.5,28,000/- as compensation and Rs.10,000/- as cost) to Respondent No.1. No costs.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Mukesh