State Consumer Disputes Redressal Commission
Sri Apup Kumar Bera vs Sri Subrata Maity on 3 February, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/629/2016 ( Date of Filing : 18 Jul 2016 ) (Arisen out of Order Dated 15/06/2016 in Case No. Complaint Case No. CC/65/2014 of District Purba Midnapur) 1. Sri Apup Kumar Bera S/o Lt. Anukul Bera, Prop., Bimala Nursing Home, Vill.- Bahargram, P.O.- Panskura R.S., P.S. -Panskura, Dist. Purba Medinipur. 2. Dr. K.C. Mondal Attached to Bimala Nursing Home, Vill.- Bahargram, P.O.- Panskura R.S., P.S. -Panskura, Dist. Purba Medinipur. ...........Appellant(s) Versus 1. Sri Subrata Maity S/o Narayan Maity, Vill.- Bahargram, P.O.- Panskura R.S., P.S. -Panskura, Dist. Purba Medinipur. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER PRESENT: Prasanta Banerjee, Advocate for the Appellant 1 Prasanta Banerjee, Advocate for the Appellant 2 Mrs. Sephali Roy,Krisanu Dixhit, Advocate for the Respondent 2 Dated : 03 Feb 2023 Final Order / Judgement
SAMIKSHA BHATTACHARYA, MEMBER The instant appeal has been directedby the appellants against the final order dated 15.06.16 passed by Ld. District Consumer Disputes RedressalCommission (DCDRC), Purba Medinipur in CC/65/2014.
The facts of the case, in brief, are that Smt.Rupali Maity, the wife of the respondent/complainant (hereinafter referred to as 'complainant') was admitted at the nursing home of appellant No. 1/OP No. 1 (hereinafter referred to as 'OP No. 1') for delivery of her child and since it was not possible for the nursing authority and the doctor for normal delivery, the caesarean operation was performed for delivery of the child and for such operationPrimy LUCS procedure was observed and the same was done on 24.03.14 and it revealed from the documents supplied by the nursing home authority as well as in the discharge certificate. At the time of admission, the OP No. 1 assured the complainant that he would take all the responsibilities and precautionary measures as required for operation and OP No. 1 opined that the operation would be performed by an eminent Gynecologist. The complainant's wife was discharged on 30.03.14 though the patient was not cured. Due to negligence on the part of the OPs, abdominal would was developed which was due toPrimyLUCS. The complainant's wife was readmitted on 19.04.2014 for her abdominal would infection at Calcutta Medical Research Institute (CMRI) for operation and she was discharged on 29.04.2014. For the negligence on the part of the OPs, the complainant had to spend huge amount of money for treating his wife at different nursing homes including CMRI, Kolkata. From the discharge certificate issued by OP No. 1 nursing home it appears that the patient was admitted under Dr.K.C.Mondal, appellant No. 2/OP No. 2 (hereinafter referred to as 'OP No. 2'). The complainant went to the OP No. 1 nursing home on 09.04.2014 and one doctor visited her and gave a prescription with short signature of the doctor which is illegible. On 21.06.2014, the complainant came to know the name if the doctor who treated his wife. OP No. 1 made a complaint to the Panskura Police Station on false allegation against the complainant. Due to the negligence of OP No. 1, and the doctor/doctors, the complainant had to spend Rs.4,00,000/- for recovery of his wife and for further operation. Due to the acts of the OPs the complainant and his wife had suffered mental agony and pain. The complainant sent a legal notice dated 19.07.14 to OP No. 1 which was received by the OP No. 1 but the OP No. 1 did not disclose the doctor's name. Hence the petition of complaint filed before the District Commission, praying for compensation of Rs.6,00,000/- to the complainant for medical negligence, Rs.1,00,000/- for mental agony and pain suffered by the complainant and his wife and litigation cost of Rs.20,000/-.
Both the OP No. 1 and OP No. 2 filed separate written version. Though OP No. 1 and OP No. 2 filed two separate written version both of them have stated the same version.
In their written version, both the OPs denied all material allegations inter alia stated that the instant case is based upon vague, concocted and misconceived storied which is liable to be dismissed. The complainant has initiated this case against the OPs only to squeeze money by hook or by crook. The complainant's wife namely RupaliMaity, then aged 21 years,was admitted under Dr. KC Mondal/OPNo. 2 in the nursing home of OP No. 1 with pregnancy and labour pain on 24.03.14 at her own volition and the same is duly registered in the Admission Register of the Nursing Home. Observing her complications, and general condition, the OP No. 2, after duly consulting with the patient party took, the decision of the caesarean section for delivery of the child. The OP no. 1 with the help and assistance of highly experienced and qualified medical staff and trained nurses, as per the direction of OP no. 2, has arranged for best ever possible measure for such operation and the Primy LUCS was done in due care and caution on 24.03.14 following internationally accepted medical rules and ethics. The operation and whole treatment of the patient during the stay in the nursing home was uneventful and after delivering a healthy baby, the patient was recovered in due course of time gradually. The patient was duly discharged on specific advice by OP No. 2 doctor on 30.03.14 and a valid discharge certificate was issued. The patient came to the nursing home on 09.04.14 and 13.04.14 beforethe OP No. 2 on routine check-up and till then she was quite cured and there was no complication in her vital sign and there was no sign of wound infection or any other infection in the body of the patient which can be seen from the USG report dated 07.04.14.
Subsequently, both the OPs got informed from the record that the patient had developed wound infection at the stitching part and for which she was taken to a private hospital in Kolkata where secondary suture was done, not any further operation. It is to be noted that the wound infection and the formation of pus etc. are very common complication suffered by maximum operated patient depending upon their lifestyle, care and caution taken at home and it is not at all fatal or serious. In the instant case, the patient party did not bother to take the patient to either of the OPs after 09.04.14. Moreover, they had preferred a costly private intuition over Government hospital for such minor and utmost common complication which was not at all occurred due to any short of negligence/deficiency in service by either of the OPs. Both the OP No. 1 and OP No. 2 havestrongly denied the averment that the complainant had to spend Rs.4,00,000/- for performing secondary suture and have submitted in their written version that no hospital and institute in India can never charge Rs.4,00,000/- for performing secondary suture after any operation. On 22.06.2014 the complainant along with some associate attacked the nursing home and started absurd demand from the OPs and on being refused they started to destroying the nursing home property by threatening the OPs and staff of the nursing home with dire consequences. Accordingly, OP No. 1 lodged an FIR before the Panskura Police Station, vide Panskurra P.S. Case No. 294/14 dated 22.06.14 under Section 448/323/427/506/34 IPC and Section 4 of West Bengal Medical Service Persons & Medicare Institution Prevention Violation and Damage to Property Act, 2009. There is no specific averment or allegation of any medical negligence or deficiency in rendering service and there is no supportive documents in support of evidence and hence the case be dismissed against the OP No. 1 and OP No. 2 in limine.
The Ld. DCDRC, PurbaMedinipur allowed the complaint which is reproduced as under:
"That C.C No. 65/2014 be and the same is allowed on contest against the Ops. Ops are directed to pay, in equal share, a sum of Rs.4,00,000/- as compensation and another sum of Rs.10,000/- as litigation cost to the complainant, within 40 days hence, i.d., complainant would beat liberty to execute this order in accordance with law. In that case, the defaulting OP/Ops would be under obligation to pay interest @ 8% p.a. over the proportionate share of compensation amount from this day till full and final payment is made."
Being aggrieved by and dissatisfied with the above order, the OPs No. 1 & 2 filed the instant appeal.
Ld. Counsel for the appellants/OPs has stated in their memo of appeal that the Ld. District Commission has failed to appreciate the exact merit of the case and the pleadings, exhibited documents, opinion and the expert's deposition of witness of both sides and has committed an error in passing the said judgment and final order dated 15.06.2016. The Ld. District Commission has miserably failed to appreciate the landmark case laws and medical rules and version laid down in various journals submitted by the OPs. The Ld. District Commission has deliberately avoided the opinion of medical experts vide report of CMOH, Purba Medinipur, dated 08.01.2015 and report IPGME&R and SSKM Hospital dated 10.09.2015 without any discussion or specific reason for that. Ld. District Commission has also failed to consider that the stitch line infectionfor which the patient was suffered, is one of the most common complications following an LUCS and the Ld. District Commission has failed to label any specific allegation or cogent proof against the OP No. 1. Ld. Forum has acted beyond the settled principles of law and took the whole responsibility upon its shoulder to prove the case of the complainant by wild guessing, sympathetic and fictitious terms by assigning fictitious complications which merely had been suffered by the patient. The Ld. District Commission has committed a sheer mistake in not at all considering the deposition of witness of both sides, even the deposition made by the medical expert and did not bother to write a single line or mention in the whole judgment about such deposition. There is no specific averments against the OP No. 1. Therefore, the judgment/final order dated 15.06.2016 is liable to be set aside.
The Ld. Counsel for the appellants has submitted before this Commission that the decision of caesarean section for delivery of a child was taken as per advice of the OP No. 2 and after due consultation with the complainant. As such, the OP No. 1 had no decision making authority over the said issue. Other than providing infrastructure for the said operation, the Appellant No. 1 as a representative of the said nursing home has nothing else to do with the said operation other than to provide assistance of highly experienced and qualified medical staff, trained nurse and best technologies for the said operation. Therefore, the complainant in his petition of complaint has not made a single averment regarding deficiency in service with regard to the operation. Such patient, namely, Rupali Maity, the wife of the complainant was discharged from the said nursing home and the discharge certificate was duly issued by the nursing home. As per advice of OP No. 2, complainant came to meet OP No. 2/doctor for routine check up at the said nursing home/OP No. 1 on 09.04.2014 and also on 13.04.2014 when the OP No. 2 did not find any abnormality along with the stitch line. The allegation has been made falsely. The prescription dated 06.04.2014 clearly shows that the entire case has been made by the complainant with his intention to malign the reputation of the nursing home and the concerned doctor as the case may be.
The complainant has stated that after performing secondary suture, he had to spend a sum of Rs.4,00,000/- which is absolutely false and frivolous. Till on 13.04.2014 there was no sign of any wound infection at the stitching part in the body of the patient which can be seen from the USG report dated 07.04.2014. Wound infection or formation of PUS etc. are very common complications suffered by maximum operated patient depending upon their lifestyle with care and caution taken at home. The complainant did not bother to take the patient to either of the OPs after 09.04.2014. If there is any wound due to the medical negligence of the Ops, the complainant ought to have come before the OP No. 1 for treatment but instead of that he went to other medical institute. The Ld. District Commission did not consider the report dated 08.01.2015 submitted by CMOH, Purba Medinipur, also the report submitted by the IPGME&R and SSKM Hospital. The Ld. District Commission ought to have considered the both which clearly show that there is no definite medical negligence on the part of the OPs and in absence of conclusive proof of evidence, the OPs cannot be charged with medical negligence. There is no specific averments or allegations of medical negligence or deficiency in service on the part of the OPs.
Ld. Counsel for the complainant has submitted that the complainant's wife gave birth to a child at the nursing home ofthe appellant No. 1 through caesarean operation on 24.03.2014 and the operation was performed by the OP No. 2. Due to the negligence on the part of the OPs, the complainant's wife developed abdominal wound from which the patient had to be admitted in CMRI Hospital at 19.04.2014 and was released on 29.04.2014 and for that reason, the complainant had to incur huge expenditure. At the time of cross-examination of the PW-1, the defendants could not have proved their version as made in their written statement. In cross-examination, he showed his intelligence in giving answer of the questions put to him and he sharply denied the suggestions.
Major or minor operation whatever be the case needs proper direction, importance and care but in the instant case, no such direction or importance or care have been attributed to the patient at the pre/post operation stage. The judgment passed by the Ld. District Commission is a descriptive one and observation made by the Ld. District Commission is well reasoned. Therefore, the judgment passed by the Ld. District Commission is liable to be affirmed by setting aside the instant appeal.
Upon hearing and on perusal of the record, it appears to us that it is admitted fact that complainant's wife, namely, Rupali Maity, who admitted to OP No. 1 nursing home to give birth to a child through caesarean operation on 24.03.2014. It is also admitted fact that the patient was released from the said nursing home/OPNo. 1 on 30.03.2014. It is also admitted fact that the patient came to the nursing home again on 09.04.2014 and 13.04.2014 for routine check-up by OP No. 2 at the OP No. 1 nursing home. OPs have alleged that there was no sign of any wound or infection in the body of the patient which could be seen from the USG report dated 07.04.2014. Now, it is the fact that the complainant had to admit his wife/the patient before the CMRI Kolkata for her wound at the stitching part of her body. Accordingly, the complainant was admitted to CMRI on 19.04.2014 for her abdominal wound infection and was discharged on 29.04.2014. Now the question is whether there is any deficiency in service and medical negligence on the part of the OP No. 1 and OP No. 2 as alleged by the complainant. The evidence on both sides was taken on dock before the Ld. District Commission. From the evidence of both sides, it appears that the patient was not cured at the time of discharge from OP No. 1 nursing home and for that purpose, she was taken to CMRI Hospital where she was admitted for long 10 days after birth of her child.
One enquiry report has been filed before the Ld. District Commission by the Chief Medical Officer of Health, PurbaMedinipur, Tamluk, PurbaMedinipur. From the medical report, it appears that during admission, the patient party was informed about the condition of the patient and due consent was given by the patient party for LUCS. No complication was noted during the operation and after the operation. The patient was discharged on 30.03.2014 with advice. No abnormality was observed by the OP No. 2 during discharge of the patient. The patient again come on 09.04.2014 but OP No. 1 and OP No. 2 prescribed some medicine with advice to visit for follow up within 7 days. But this advice for follow up is not recorded in the prescription. The patient did not turn up for follow up next time. Thereafter, the patient came to Dr.Apurba Mondal, M.D. (Gynae& OBST), on 06.04.2014 at Shyam Shivam Nursing Home & Diagnostic Centre, Lowada, PaschimMediipur. From the prescription of Dr.ApurbaMondal, it is noted that the patient was discharged with diagnosis of "Abdominal wound following LUCS. There was induration below umbilicus along with and around the abdominal wound with bloody discharge from the wound." Untrasonography and other investigations were advised. USG report of Sri Aurobindo X-Ray Clinic on 07.04.2014 was normal. No record of further treatment by Dr.Apurba Mondal is available.
As per Enquiry Report, the patient was again admitted at Balaji Nursing Home, Tamluk under Dr.SudipGole, M.D. (Gynae) on 17.04.2014. As revealed from USG report dated 18.04.2014 from Sri Aurobindo X-Ray Clinic" USG report shows diffuse cellulitis at lower abdominal post - C.S scar with large subcutaneous inflammatory collection involving the Rectus sheath extending intra peritoneally with small pocket of collection at periuterine region along with moderate pyometra, POD collection and rights sided Oophoritis'. The patient was referred to any Medical College for better treatment.
The patient was admitted at CMRI on 19.04.2014 and discharged on 29.04.2014. No surgical interference was done immediately and she was treated medically. On 13.05.2014 the patient was followed up by Dr.Ajoy Mondal, MS DNB and stitches were removed. Subsequently the patient was treated with secondary suture on 06.06.2014 and secondary sutures were removed on 16.06.2014.
The patient suffered from the infection of the wound and stitches.
The patient was operated by Dr.K.C. Mondal on 24.03.2014 at Bimala Nursing Home and discharged on 30.04.2014. No abnormality was detected at the time of discharge. The patient was again attended by Dr. K.C. Mondal and advised to report for follow up within 7 days. There was infection of wound and stitches. It could notbe opined about the time of infection whether during operation or after discharge. Moreover, the patient did not turn up for follow up to Dr. K.C. Mondal after 09.04.2014 according to advice of Dr. K.C. Mondal.
The patient has thereafter been treated by many Gynaecologists in two Nursing Home and CMRI.
The stitch line infection is one of the common complications following LUCS and it is not possible to opine about the time ofinfection and whether thepatient had followed all advices of Dr. K.C. Mondal.
AS per Enquiry Report, Dr. K.C. Mondal cannot be held responsible forone of the common complications following LUCS and no definite medical negligence can be found on the basis of the statement of owner of Bimala Nursing Home and Dr. K.C. Mondal and documents of treatment of Smt. RupaliMaity.
From the Enquiry Report, it is evident that the patient was suffering after operation and she had to visit different doctors. If OP No. 2/Dr.K.C. Mondal would take proper care for the 'common complication' due to surgery, the patient would not suffer a lot. The Enquiery Report reveals that the patient suffered from the infection of the wound and stiches.
Be it mentioned here that the matter was initially referred to the CMOH, PurbaMedinipur and thereafter, to the SSKM Hospital, Kolkata for expert opinion and both of them submitted necessary reports for our evaluation. For better illustration, the relevant portions of both the reports are appended below:
CMOH, PurbaMedinipur Report dated 08.01.2015 So, Dr. K.C. Mondal cannot be held responsible for one of the common complications following LUCS and nodefinite medical negligence can be found on the basis of the statement of owner of Bimala Nursing Home and Dr.K.C. Mondal and documents of treatment of Smt. RupaliMaity."
IMGME&R and SSKM Hospital, Kolkata Report dated 10.09.2015 "Apparently, it is a case of Post-operative wound infection and may be associated with Rectus sheath hematoma.
Post-operative wound infection is not a veryuncommoncomplication following various forms of Surgery including Caesarean section. Various predisposing and other causative factors have been described. It may be the result of various factors not related to action of theDoctor or the quality of theNursing Home.Even in United States the incidence has been found to be 109% and 14-16% in two different multicentric studies. Though poor surgical practice and improper aseptic measures in the hospital may be held responsible insome cases, in manyothercases the causes are beyond the control of the surgical team or the Operation area set up.
Thepatient definitely suffered a lot, both physically and mentally and had to bear a heavyfinancial burden. She deserves full sympathy and support.
But, from the available documents, it cannotbe concluded with certainty that her sufferings were due to professional negligence of the concerned Doctor or Nursing Home, in absenceof conclusive evidence."
The discharge certificate issued by OP No. 1/Bimala Nursing Home is not proper and not beyond doubt. There is overwriting in the name of the patient as well as the age of the patient. We are astonishing that how this type of discharge certificate has been issued by the OP No. 1. Moreover, in the discharge certificate, there is no signature. Admittedly, there is a signature on the column of designation. The discharge certificate contains only some names of the medicine. No post-operative care has been advised in the discharge certificate. Issuing this type of discharge certificate clearly indicates the unfair trade practice on the part of OP No. 1/Bimala Nursing Homeand the medical negligence on the part of the Doctor/OP No.2.
From the record, it appears that the patient visited the OP No. 2/Doctor at the OP No. 1 nursing home on 09.04.2014 after discharge from the Nursing Home.
If the OP No. 2 would take proper care, the patient party would not admit the patient in the CMRI Hospital. Finding no other alternative, the complainant had to admit the patient in the CMRI Hospital. In the written version of OP No. 1 and 2 also we do not find any post-operative care was suggested by them to the patient. Moreover, the plea taken by the OPs that this type of complication may arise in the case of this type of surgery then we think that OPs should have taken the proper measure to cure the patient from her ailments.
Moreover, the expert committee report of the IPGME&R is also not conclusive. Therefore, the Ld. District Commission has rightly observed that the patient, as ill luck would have it, fellvictim of the other utter carelessness of the OPs. But we are not in the same observation that the Ld. District Commission has observed that the complainant had to incur morethan Rs.2,00,000/- for the SSI that developed in the stichline of his wife following caesarean section. Since no documentary evidence has been filedby the complainant we cannot ascertain what amount was incurred by the complainant to cure his wife. Therefore, in absence of any money receipts towards theexpenditure following the caesarean section of the patient we cannotascertain thatRs.3,00,000/- was incurred by the complainant. However, there is clear negligence on the part of the OPs and for that the patient had to suffer a lot. It is proved that what was done should not have been done and what was not done should have been done as per accepted medical practice and same be supported by the documents filed with the record.
Therefore, the complainant is entitled with relief since the complainant and his wife suffered mental agony and pain and the OPs have not showed any compassion for the patient in question.
In view of above, the order of the District Commission is modified to the following extent:
Appellants/OPs are directed to pay in equal share, a sum of Rs.1,00,000/- (One lakh rupees) only as compensation Rs.10,000/- (Ten thousanand rupees) only as litigation cost to the Respondent/Complainant within 45 days i.d.the amount shall carry simple interest @ 6% p.a. till its full realization over the proportionate share of the compensation amount.
As a result, the appeal is allowed in part on contest and disposed of accordingly.
Office is directed to send a copy of this order to the Ld. DCDRC, Purba Medinipur. [HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER