National Consumer Disputes Redressal
Jitendra Nath Chowdhury vs Dr. Timir Bhattachrya on 7 March, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 85 OF 2009 (Against the Order dated 14/01/2009 in Complaint No. 42/2002 of the State Commission West Bengal) 1. JITENDRA NATH CHOWDHURY S/o Late Raghunath Chowdhury, R/o at 195, Mehedi Bagan, P.O. Burdwan Burdwan - 713 101 West Bengal ...........Appellant(s) Versus 1. DR. TIMIR BHATTACHRYA R/o. Ranisayer West, Khoshbagan, P.O. & P.S. Town Burdwan Burdwan West Bengal 2. THE NIRANJAN SMIRTI KALYAN KENDRA P LTD. Popularly Know as Priyabala Nursing Home At. ravisayer West. Khoshbagan P.O. P.S. Town and Distt, Burdwan 3. GAURI BHATTACHARYA DIRECTO. OF PRIYABALA NURSING HOME R/o. Ranisayer West, Khoshbagan, P.O. P.S. Town And Distt, Burdwan 4. DR, TARAK NATH BANERJEE S/O, ANil Kr. Banerjee, R/o, 5, J.N.Roy Road, P.O. P.S. Town And Distt, Burdwan 5. NIRANJAN SMIRTI KALYAN KENDRA (P) LTD. Popularly Known as Priyabala Nursing Home at Ranisayer West, Khoshbagan, P.O. & P.S. Town Burdwan Burdwan 6. GAURI BHATTACHARYA Director of Priyabala Nursing Home, R/o at Ranisayer West, Khoshbagan, P.O. & P.S. Town Burdwan Burdwan 7. DR. TARAK NATH BANERJEE S/o Anil Kr. Banerjee, R/o at 5, J.N. Roy Road, P.O. & P.S. Town Burdwan Burdwan 8. Mr. Kartik Kumar Bhattacharjee Counsel for the Respondent, Bar Association, Room No.7, High Court of Kolkata, Kolkata West Bengal. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : Mr. Kunal Chatterjee, Advocate For the Respondent : Mr. Ranjan Mukherjee, Advocate Along with Mr. Kartick Bhattarchary & Ms. Aprajita Mukherjee, Advocates Dated : 07 Mar 2017 ORDER M. SHREESHA, MEMBER
1. Aggrieved by the order of the State Consumer Disputes Redressal Commission at West Bengal (for short "the State Commission"), in SC Case No. 42/01/2002 dated 14.01.2009, the Complainant preferred this Appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"). By the impugned order, the State Commission has dismissed the Complaint on the ground that there was no negligence on behalf of the first Opposite Party (hereinafter referred to as the "treating doctor") in his treatment of the Complainant's wife (hereinafter referred to as the "patient").
2. For the sake of convenience, Opposite Parties 2, 3 & 4 are hereinafter referred to as the 'Nursing Home'. Succinctly put, facts material to the case are that the patient, a Graduate in the Commerce Stream, with six-months training in knitting, was registered at Employment Exchange, Burdwan and was awaiting employment. During this period, she was engaged as a Private Tutor, earning ₹800/- to ₹1,000/- per month. It was stated that after their marriage, on 04.12.1992, the couple was blessed with a baby boy, on 24.10.1994. The Patient, once again conceived in the year 1999, and the couple approached the treating doctor, Dr.Timir Bhattacharya, a Gynecologist, who confirmed the pregnancy, treated her at regular intervals and fixed the probable date of delivery of the baby in the first week of June, 2000.
3. On 04.05.2000, the treating doctor advised the patient to undergo ultrasonography which showed normal results. On 21.05.2000 at about 6.30PM the patient had unbearable pain and was taken to the treating doctor's Nursing Home and on his advice, was admitted on the same day at 7.30 p.m. and an advance of ₹5,000/- was paid towards the treatment. As the patient's condition was stable, at about 11.00 p.m., the Complainant was asked to return to his residence and come again, the next morning. On 22.05.2000, at about 4.45 a.m., the Complainant was informed by the staff of the Nursing Home that the patient had undergone Caesarean Section under general anesthesia, as the treating doctor suspected that the umbilical cord was twisted around the infant's neck.
4. It was pleaded that the treating doctor informed the Complainant that a healthy baby girl was born and had left to change his apparel, during which time, the Complainant had heard a 'thud' sound and curiously peeped inside the operation theatre and found that his wife had fallen on the floor of the theatre. The operation table was empty and the attendants were re-arranging the patient, trying to lift her and carry her to the bed in Cabin No. 5. It was averred by the Complainant that a stretcher was not used for transferring the patient, who was still under general anesthesia, but instead, the attendants, who were three in number, manually carried the patient to the bed, during which process, the patient sustained injuries on the head and on the side of the body. The Complainant repeatedly asked the attendants to call the treating doctor, but he was informed that the antibiotics had already been given and there was no need to call the doctor. It was specifically pleaded that the patient looked pale, exhausted and shocked and the Complainant consoled her and contacted the treating doctor who once again assured that the Patient was normal and advised him to return to his residence. Complainant left the nursing home at 2.00 p.m. and returned at 3.30 p.m. On his return, he observed that the Nursing Home staff were administering Haemaccel medicine as the patient was having low temperature. It was stated that the Haemacel is a polymer from degraded gelatin equivalent to nitrogen content of 6.82 g, electrolytes 3.5g (Na 145, K 5.1, Ca 6.25, C -115 ml) and sterile distilled water to 100 ml made isotonic with polypeptides, priced at Rs. 181/- and presented tin 500 ml bottle. The Complainant stated that this Haemaccel was administered in the absence of the treating doctor. It causes increase in interstitial fluid volume or haemo dilution which may cause heart failure, hyper-tension, esophageal varices, pulmonary oedema, Hemorrhagic diathesis, renal and post renal anuria. It was averred that the patients who have received, in the previous 7 days, a drug which releases histamine i.e. anesthetic agents, muscle relaxants, analgesics, ganglion blockers and anti-cholinergic drugs are susceptible to side effects of hypertension, tachycardia, bradicardia, dispnoea, an occasional rise in temperature and chills. Their side effects may enlarge in case of hyper-volemia and over-hydration. It was stated that between 3.30 p.m. (22.05.2000) and 11.30 p.m. (23.05.2000) five bottles (2000 ml) of Haemaccel was administered within a span of 20 hours while the normal administration limit is 1000 ml to 1100 ml per 24 hrs.
5. The condition of the patient was fast deteriorating and though the Complainant requested for the presence of the treating doctor at 3.30 p.m., but he was informed that the doctor would arrive only at 6.30 p.m. This delay of three hours to attend to a patient in an emergency condition, proved to be fatal. It was also averred that the treating doctor noted "not anaemic" on 22.05.2000 at 1.30 p.m. and "anaemic" at 7.30 p.m., on the same day. He also noted "chest pain and difficulty in respiration" from which an inference can be drawn that due to internal hemorrhage, blood pressure had fallen below normal limits. The treating doctor ought to have discontinued administration of Haemaccel and should have raised the blood count to normal by blood transfusion and define the precautions to be taken during the administration of Haemaccel, the absence of such precaution led the patient into hypervolemia, which is a critical condition. At this juncture, the Complainant requested the treating doctor to transfer the patient to PG Calcutta but was refused permission. On 22.05.2000, at about 10.30 p.m., the Complainant was asked to arrange for four bottles of blood to be transfused to the patient. Despite transfusion of these four bottles of blood from 11.30 pm., on 22.05.2000 till 10.00 a.m., on 25.05.2000, the blood count did not return to normal. Hemoglobin count was 8.3 gm/dl compared to the Hemoglobin count on 19.03.2000 which was 12.33 gm/dl, which shows a clear case of internal hemorrhage which was not taken care of. Patient was not diabetic, but the treating doctor without conducting any test, noted that the patient was having 491 gm/mdl Random blood sugar and administered two doses of 64 ml insulin I.V. The Nursing Home did not have the pathological laboratory and therefore, no independent tests were conducted at 10p.m., on 22.5.2000 or 11.10p.m., on 22.5.2000. After administration of insulin I.V. 64 ml x 2, the patient's blood sugar level had fallen down to 56 gm/m, whereas, the normal limit is 70 gm/m to 110 gm/mdl.
6. It was averred that at this juncture, Opposite Party No.5 doctor was called to assist in the emergency management and he diagnosed the patient as being in a "Scepticaemic shock in post-caesarian surgery, in case of hypo-glycaemia." It was pleaded that both Opposite Party No.5 and Opposite Party No.1, in collusion, noted in the prescription dated 23.05.2000, that peritoneal aspiration was attempted, but the result was dry tap, i.e. there was no accumulation of fluid by haemorrhage (internal). This was contradictory to the finding of 2.5 litre fluid and blood clot inside the abdominal cavity. At 11.55 a.m., on 23.05.2000, Dr. Arabinda Koner was called, who conducted the ECG and stated that the patient's condition was very precarious. She expired between 12.00 to 12.30 p.m. The treating doctor issued the Death Certificate stating that the patient had died due to septicemic shock in post-operative case of emergency L.U.C.S. Thereafter, a post-mortem was conducted and opinion of Dr.A.K.Gupta, Professor and Head of the Department of Forensic Medicine was taken, who noted that the patient had the following injuries on her body:-
"a) Deep Bruise (dark-red) 3"x 2" over right tempo-parietal region of head;
b) Deep Bruise (dark red) 4" x 2" over the right antero lateral chest wall lower part with bruise (dark red) 2½ x 2" over the right lower part of the abdomen and adjoining ribs.
c) Deep Bruise (dark red) 8" x 6" over the right antero-lateral abdominal wall, big size nearly covering whole of the right (illegible) (illegible) abdominal wall with huge extravasation of blood in and around;
d) collection of fluid and clotted blood 2 ½ litres inside peritoneal cavity;
e) bruise (dark red) 2" x ½ " over the lower lobe of the right lung with pleurn;
f) Bruise (dark red) 1" x ½" over the upper part of the right kidney".
7. Dr. B.C. Mazumdar opined that all the injuries showed vital reactions and the death was due to the effect of injuries, which were ante-mortem in nature. The treating doctor was charge-sheeted U/S 304A of I.P.C.
8. It was pleaded by the Complainant that the Nursing staff of the said Nursing Home was under-skilled and did not even use a stretcher for transferring the patient from the Theatre to the Bed in the cabin and manually used their hands and attempted to lift the patient. The patient's body being a heavy one slipped from the grip of the attendants and was dropped on the floor and as such there was a sound of 'thud' heard by the Complainant, on account of which fall, the patient sustained vital injuries on the right side of the body, including bruises on the right kidney. It was averred that the severity of the impact of the fall from 4 feet height operation table can be ascertained from the injuries mentioned in the post mortem report. It was stated that this fall had caused internal hemorrhage and the diagnosis of scepticaemic shock in post L.U.C.S. is a cover-up of the negligence of the treating doctor and the Nursing Home. It was pleaded that the patient had normal health and had passed away at a very young age of 32 years, only because of the negligent administration of insulin as the patient was not diabetic; on account of internal hemorrhage because of injuries to vital internal organs on the right side of the body caused by the drop on the floor of the operation theatre and negligence by the under-trained Nursing Staff. Hence, the Complainant sought direction to the Opposite Parties to pay the amount spent towards medical expenses and also to pay compensation of ₹14,00,000/- for the pain and suffering and loss of love and affection suffered by the Complainant, on account of the death of his wife and also for the loss of mother to his children, together with costs and compensation.
9. The Opposite Parties filed their written statement stating that the patient was given treatment free of charge and deny for want of knowledge that the patient was a private tutor earning ₹800/- to ₹1,000/- p.m. It was admitted that the patient was brought to the treating doctor, on 21.05.2000 at 7.30 p.m., by which time, the patient was not in serious labour pains. The Treating doctor attended to the patient at 10.00 p.m., and saw that she was not in labour pain. He was called by the Nursing Staff at about 2.45 a.m., and he conducted emergency LUCS at about 3.00 a.m., after calling the Anaesthetist. A baby girl was delivered at about 4.05 a.m., and the patient was transferred to the Room at 4.25 a.m., in a conscious state with normal stable vital signs. It was denied that the patient sustained injuries on the head and on side of the body and that the patient had fallen from the operation table and that the attendants who were three in number, manually carried the patient to her bed. At the time of operation and transfer of the patient, none of the attendants were present in the Nursing Home and therefore, it was not possible for any of the patient's attendants to have peeped into the operation theatre and seen her being transferred. Patients are always removed from the operation theatre to bed on stretchers and therefore, the question of falling from the table and hearing any 'thud' sound does not arise. It was pleaded that if one has to enter the operation theatre, one has to open two successive doors and so the question of peeping does not arise. On 22.05.2000, the treating doctor examined the patient at 6.30 a.m., 8.15 a.m. 10.20 a.m., 12.00 noon, 1.30p.m., 2.50p.m., and 3.40p.m., and advised Haemaccel infusion to maintain the haemodynamic status and all check-ups were made in the presence of the Nursing Home authorities.
10. It was denied that the administration of Haemaccel led to the emergence of hyper-volemia. It was also denied that there was internal hemorrhage. It was averred that the patient died of septicemia shock and that the surgery was properly done and post-operative care was duly followed by the opposite parties.
11. It was denied that Opposite Party No.5 in his prescription, malafidely entered, without any chemical and laboratory test that the patient was having 490 gm./mdl. Random blood sugar at 10 p.m. It was also denied that without test, the insulin P.V. 64 ml. x 2 Intra venous was administered to the patient for which sugar level of the patient rapidly fell. In fact, the blood sugar was tested with glucometer and only then, the steps for administering insulin was taken. The Patient was in a hyper-glycemic state, which can occur during latter part of the pregnancy, medically termed as Gestational Diabetes. The RBS on 23.05.2000, came down to 56mg as a result of severe sepsis, which may produce hypo-glycemia, by various mechanisms.
12. The treating doctor and Opposite Party No.5 doctor found no indication to perform peritoneal tap, on 22.05.2000, which they did, on 23.05.2000, in the presence of Dr. S.K. Das, Senior Gynecologist and the result was 'dry', which may be non-confirmatory and fallacious. The presence of 2.5L fluid and blood clot as mentioned in the postmortem report may be due to severe sepsis which had initiated Disseminated Intravascular Coagulation (DIC), Coagulation disorder resulting in bleeding within the peritoneal Canty Visqeras & Musculo skeletal compartment. It was denied that there were any injuries causing the death of the patient. The patient had severe sepsis supported by clinical as well as laboratory investigations. Due care and caution was taken by the opposite parties in the treatment of the patient and they are not responsible, in any way for her death. The opposite parties denied that there was any negligence or deficiency on their part in the treatment of the patient and contended that they were not liable to pay any compensation and litigation costs.
13. The State Commission dismissed the Complaint observing as follows :-
"After considering the above contentions, we find that the petitioner filed an FIR on 22.12.2001 wherein the allegation was made against OP1 after operation and compounder Nemai & Samser of OP2 tried to push injection of expired date in April, 2000 and thereafter at 12 O' clock in presence of OP1 some persons forcibly pushed injection to the patient and she then died. But in the present case both in the pleading and in the evidence the petitioner made out a positive case of his hearing a thud in the operation theatre whereupon he peeped into the operation theatre and found that the patient was lying on the floor and was taken to the nursing home bed manually of the staff of the nursing home and there was no stretcher. It is the positive case of the petitioner that this fall caused injury which has been reported in the post-mortem report and the doctor holding autopsy deposed in the present proceeding. The story of expired injection has not been mentioned in the complaint or in the evidence of the complainant. It is surprising that such two contradictory cases have been made out in the present proceeding and in the FIR on which charge-sheet had been issued. On perusal of the evidence we find that Dr. A.K. Gupta, the expert had opined that the patient had a fall from height like operation table or bed out he went on referring to negligence of OP1 for not providing rail cot and not providing protection of the patient in the cabin. The same is the position in the case of Dr. Majumdar, the doctor who held autopsy and his evidence is of same language as of Dr. A. K. Gupta, which is surprising. In such background, we don't believe the evidence of the said two witnesses being OP 3 & 4 as neither the expert who was not present in and around the operation theatre nor the doctor holding autopsy, could opine that injury had been caused by reason of a fall from an operation table/bed in the cabin. This appears to be a story concocted by the complainant at a late stage and got it reported by OP3 & OP4. Nature of evidence makes us to disbelieve the evidence. The evidence of the OPs shows the timing of the operation and removal of the patient to the bed from the operation theatre during which time the petitioner was not present even according to his own statement as regards time of his arrival to the nursing home. In the circumstances, as the said case of the petitioner is not being believed, the argument thereon is rejected hereby.
The initial injuries alleged were result of the fall from the operation table and, therefore, the same having been found not believable, the case of the complainant fails.
With regard to the allegation of administering Haemaccel without taking precautionary measures, we do not find any evidence on behalf of the complainant as regards the effect of alleged overdose of the said medicine. It has not been proved that such overdose could cause the death of the patient.
With regard to the administration of insulin also, the allegation is that no clinical test was made. But on behalf of the OPs more than one witness has deposed that with the help of a glucometer sugar level was tested on number of occasions, whereon, insulin was administered. Therefore, the allegation of deficiency in service also is not proved in this respect.
The judgments cited in course of hearing do not require discussion in further detail in view of the findings on facts as recorded hereinabove.
In above view of the matter, as we do not find that the complainant is unable to prove his contentions, the complaint is dismissed on contest without costs".
14. Both the parties filed their written submissions.
15. Briefly put, the submissions of the Learned Counsel for the Appellant are as follows :
That the patient underwent Caesarean Section on 22.05.2000 under general anesthesia and delivered a baby girl. The Complainant heard a 'thud' sound and saw his wife on the floor of the Operation Theatre being physically carried to the ward. The injuries caused due to the fall deteriorated her condition and led to her death established by the Post-mortem report and evidence of Dr. Mazumdar.
That the State Commission, without any basis, has rejected the evidence of two Doctors and also did not take into consideration the evidence and deposition of Dr. B.C. Mazumdar.
That the treating doctor did not follow the standard procedures and administered Haemaccel injection at 3.40PM on 23.05.2000 to a patient who was not anaemic as on 22.05.2000 and was shown as an anaemic at 7.30PM. Haemaccel can lead to congestive heart failure, hypertension, esophageal varices, pulmonary edema, haemorrhagic diabetes, renal and postenal anuria.
That there was no gestational diabetes and administering insulin had deteriorated her condition.
The second report of Dr. A.K. Gupta was objected to by the Appellant on the ground that it was given after 15 long years and is contrary to the earlier report dated 15.12.2001.The first report dated 15.12.2001 was given recording all the reasons and considering all aspects and only after due perusal of the medical and the treatment record.The reason for death was opined to be internal hemorrhage due to fall from a height mainly from the operation bed during post-operational care.
That the patient was aged only 32 years and was earning ₹ 800/- to ₹1000/- as a private tutor and passed away only on account of the injuries on the right side of her body and the negligent treatment rendered by the treating doctor and the staff of the Nursing Home.
16. The main submissions of the Learned Counsel representing the treating doctor and the Nursing Home are as follows :-
That there was no specific allegation in the FIR that the Complainant had seen the patient fall from the operation table/bed and that what was alleged in the FIR is contrary to what was pleaded in the Complaint. The names of the staff who had administered the injection wrongly was also stated in the FIR which was not reflected in the Complaint.
That, two opinions were given by Dr.A.K.Gupta, Head of Department of Forensic Medicine, dated 15.12.2001 and 02.05.2015, respectively. It was argued that the second report was procured only because there was a query from the Bench regarding the circumstances under which the deceased suffered injuries which were reflected in the post-mortem report.
The opinion given by Dr. A.K. Gupta on 15.12.2001 was his tentative opinion that the injuries sustained could possibly have happened as a result of the fall of the deceased from a height. It was only based on the said report that the Appellant had made out a case before the Hon'ble State Commission that he peeped inside the operation theatre and found the deceased lying on the floor, having fallen from the operation table.
Dr. A.K. Gupta had opined in his detailed report dated 23.05.2015 that his earlier opinion of 15.12.2001 was given because the police officer had not furnished to him the complete clinical records in respect of the patient. The second report dated 02.05.2015 was based on all clinical records which were made available to him. The complaint was filed after one-and-a-half years of the receipt of the post-mortem report.
17. The facts not in dispute are that the patient was admitted on 21.05.2000 at 7.30PM and a Caesarean Section was performed under general anesthesia on 22.05.2000. It is the main allegation of the Complainant that the patient had fallen from the bed from a considerable height and received injuries on the right side of her body which was the main cause of her death, apart from wrong administration of Haemaccel, resulting in heart failure. Between 3.30PM on 22.05.2000 and 11.30AM on 23.05.2000, five bottles of Haemaccel were administered to the patient while the normal limit was one to one-and-a-half litres of blood, every day.
18. For better understanding of the cause of death, the post-mortem report dated 24.05.2000 issued by Dr.B.C.Mazumdar, Civil Surgeon, Burdwan Medical College, Burdwan, West Bengal, is reproduced here, as under :-
West Bengal form no.5372 POST MORTEM REPORT Station -Burdwan Medical College Rep.Burdwan P.S C/No 325/2000 (P.R.D Form No.55-Vide Rule 284) The 24th day of May 2000 Of 23.5.2000 U/S 304 A IPC No-637 Name , Sex, Age and caste.
Whence brought- Village and Thana.
Name of constable by whom brought and names of relatives accompanying.
Date and hour of Information furnished by police.
By whom identified before the medical Officer.
Despatch Arrival at Dead house Examination Kusum Kumari Chowdhury Hindu ,Female, aged about 28 years.
Burdwan P.S C/858 Ananta Dutta DBR 1-00 p.m PR 1-10 p.m 2 p.m On 21.5.2000 she was admitted at Priyabala Nursing Home for delivery and she gave birth to a female baby after caesarian section but she died on 23.5.2000 at 12.30p.m C/858 Ananta Dutta 24-
5- 2000 Length 4'-10" N.B-Observe the state of all organs and when no disease or injury is found write "Healthy".
1.Condition of subject -stout, emaciated, decomposed etc.
2.Wounds-Position,size,character
3.Bruises-Position,Size and Nature
4.Marks of Ligature on neck, dissection etc.
1.EXTERNAL APPEARANCE Medium built fatty female subject with rigor mortis all over the dead body. Finger nails organized, Pupils fixed dilated equal . Complexion fair. Post mortem staining over the back except the pressure points.
Leucoplast applied over the lower abdomen .Weaving are red printed saree , one blue blouse and one pink saya - handed over to the escorting police constable. Linea Albicantes over the lower abdomen closed I.V injection mark over the dorsum of the right hand, right foot and front of the left forearm. Out surgical incision 6" long right paramedian over the abdomen with 10 stitches and in the process of healing.
2.CRANIUM AND SPINAL CANAL
1.Scalp-Skull and Vertebrate.
2.Membrane
3.Brain and spinal Cord-( The spinal canal need not be examined unless any indication of disease or injury exists) Scalp - skull - As noted Vertebrae - Intact Healthy Brain - Healthy Wt 1200 gram
3.THORAX
1.Walls ,Ribs and Cartilages
2.Pluerae
3.Larynx and Tracheae Right Lung Left lung Pericardium Heart Vessels As noted As noted (Rt side) Healthy Hyoid, Thyroid Intact As noted Wt 580 gram Healthy Wt 580 gram Healthy Healthy Wt 350 gms Healthy
4.ABDOMEN
1.Walls
2.Peritoneum
3.Mouth,Pharynx and Esophagus.
4.Stomach and its contents
5.Small Intestine and its content
6.Large intestine and its contents As Noted As Noted Health Healthy Empty Healthy Contents Gas faeces Healthy Contents Gas & Faeces
7.Liver Healthy wt 1300 gm
8. Spleen Healthy wt 150 gm
9. Kidneys Rt side-As noted wt 110 gms each
10. Bladder Healthy Empty
11. Organs of Generation, external and internal.
On dissection - 1.Deep Bruise( Dark Red) 3" * 2" over the right tempo-parietal head.
2.Deep Bruise (dark red) 4" * 2" over the right anterolateral chest wall lower part with bruise (dark red )2.5" * 2" over the right lower part of the sternum and the adjoining ribs.
Ext healthy .
Internal section showed signs of recent delivery. Size 10" * 5" * 3" lower segment Caesarian Section incision 4" long. Found stitched up and in the process of healing.
MUSCLES ,BONES AND JOINTS
1.Injury As Noted
2.Disease Nil
3.Fracture Nil
4.Dislocation
3.Deep Bruise (dark red) 8" * 6" over the right anterolateral abdominal wall- a big size nearly covering whole of the right antro-lateral abdominal wall with huge extravasation of blood in and around .
4.Collection of fluid clotted blood 2. ½ litres inside the abdominal cavity.
5.Bruise (dark red) 2" * ½" over the lower lobe of the right lung with pleura.
MORE DETAILED DESCRIPTION OF INJURY OR DISEASE
6.Bruise (dark red) 1" * ½" over the upper part of the right kidney. All the injuries showed vital reactions and fresh. No other injuries could be detected even on careful dissection and examination . " Scalp hair , nail cuttings , scrapings & blood soaked cotton pieces with control- sent to P.S"
Visceral in S-S of nail with control - sent to FSL through P.S. Opinion of the Medical Officer as to the cause of the death.
Remarks by the Civil Surgeon.
Death was due the effects of the injuries as noted above - ante-mortem in nature.
Sd- Dr.Bhupal Chandra Mazumdar, Dated- 24th day of May 2000.
19. The aforementioned post-mortem report issued by Dr. B.C. Mazumdar, clearly states that death was on account of injuries which were ante-mortem in nature. He also filed an affidavit asserting as follows :-
"1A. I opined from the post-mortem report that the death was due to the effects of the injuries as note, ante-mortem in nature, it includes surgically operated injuries and injuries resulted other than that of surgical operation. In my affidavit of evidence, I mentioned that the medical negligence on the part of the attending doctor may occur by not following the proper and accepted standard of care in post-operative period to prevent fall from bed, i.e., the medical negligence could have been avoided by providing rail cot for Kusum Kumar Chowdhury, i.e., the procedure generally adopted to prevent fall of a patient from (illegible) in the post-operative period".
20. On a pointed query (Q.No. 7) as to whether, the evidence given by him regarding the deficiency of the treating doctor in rendering treatment to the said patient is concerned, can be treated to be true, Dr. Mazumdar stated as follows:
"7.A. It is not a fact that whatever I have stated in my evidence is false or unfounded. My evidence is to be considered scientifically to come to a conclusion, whether the treating doctors were deficient in their service in providing treatment to the patient specially with regard to the cause of ante-mortem injuries other than those resulting from caesarean section as mentioned by me in the post-mortem report".
21. Dr. A. K. Gupta, the Forensic Medicine Expert has rendered his opinion by way of an affidavit dated 15.04.2008 and opined as follows :-
"I gave opinion, about whether the death of Kusum Kumari Chowdhury was due to fall from operation table or bed after the caesarian operation upon her, by perusing the Bed Head Ticket with connected papers and post-mortem report on the dead body of Kusum Kumari Chowdhury. To provide Medico-Legal opinion regarding the manner, nature of death, etc., and whether any medical negligence occurred during the stay of the patient in Hospital, nursing Home etc, it is not absolutely necessary that the attending doctor only will be able to furnish such opinion. Any doctor specially Forensic Medicine Experts can furnish opinion regarding the manner of death, medical negligence, etc., they are also entitled to give such opinion from their knowledge as negligence falls within the jurisdiction of Forensic Medicine".
22. On a specific query (Q. No.5) as to whether, he can substantiate his statement that the patient had died due to a fall from the bed by producing any cogent evidence, he confirmed as hereunder:-
"The opinion that the death of Kusum Kumari Chowdhury was ultimately due to/ precipitated due to fall from bed following caesarean section upon her was made by me only perusing the connected papers, Bed Head Ticket and the findings in the Post-mortem report. The injuries mentioned in the post-mortem report other than those caused by caesarean section appears to be a vital documentary evidence upon which my opinion is formed. Actually, the injuries mentioned in the post-mortem report almost speaks for itself that the patient had fall from bed or operation table after the operation".
23. It is the case of the treating doctor and the Nursing Home that the earlier opinion was given by Dr. A.K. Gupta as the police officer had not furnished him the complete clinical records in respect of the patient, but we observe from the opinion dated 15.12.2001 given by Dr. A.K. Gupta in his capacity as Professor and Head of Department of Forensic and State Medicine, Medical College, Calcutta, that his stance was based after having carefully gone through the following documents:-
i) Copy of inquest report
ii) Copy of FIR
iii) Copy of Post-mortem No.637, dated 24.05.2000
iv) Certificate of death along with operation note, treatment sheet, Bed Head Ticket, pre-natal check-up, blood, urine and ultrasonography report in respect of the patient.
Therefore, the contention of the treating doctor that the initial point of view given by Dr. A.K. Gupta was without the relevant treatment record being shown to him, is untenable. The extract of the expert opinion given by him on 15.12.2001 reads as follows :-
"i)Septicemia in the patient either was not clinically ascertained or diagnosed on the date of admission of the patient in the Nursing Home or immediately prior to or immediately after caesarean section operation on her.
ii) Even if it is accepted that loucocyto count 33,500 per cmm with band white cells 32/100 WBC and toxic granuels in few neutrophils accompanied with serum anylase level, as concurrent evidence of development of septicemic shock in the patient, the findings of 60% (8'8 gr.%) haemoglobin with adequate platelets are not consistent with development of septicemic shock in a patient who had caesarean section.
iii) Therefore the findings of focal bruises in right lung and right kidney (as mentioned in P.M. Report) cannot be taken as mistaken diagnosis as Disseminated Intravascular Coagulation, a common sequel of septicemic shock would have produced generalized hemorrhages in the parenchyma of internal organs and other structures in the body having loose arooler tissue like conjunctiva, gum margin, etc.
iv) collection of 2½ liters of fluid and clotted blood in the abdominal cavity also contradicts the diagnosis of death due to septicemic shock, more so, when the patient had blood transfusion prior to her death. It goes more in favour of having resulted from indirect violence to operation site on lower uternine segment of uterus as a result of fall from an operation table or bed or similar structure.
The possibility of fall from a height either from operation table or from the bed where the patient was kept after operation is further right side of the body without any abrasion overlying the bruises, the internal organ injuries were also on right side, i.e., on right lung and right kidney. Such injuries are most likely to occur when on non-ambulant patient in a post-operative period falling like a log or wood from the place where she was kept either immediately after operation (...... handwritten ... illegible). Such a trauma may also precipitate massive hemorrhage from the operation site, as is evident from collection of 2½ liter of fluid and clotted blood inside abdominal cavity with lower segment of uterus showing four inches (4") long incision for caesarean section.
Therefore, considering all aspects of this case, I am finally of the opinion that the death of Kusum Kumari Chowdhury, Hindu Female, 28 years, was in all probability resulted from fall from a height like operation table or bed during post-operative period, i.e., after caesarean patient most likely to have occurred from a negligent act by not providing proper and adequate post-operative management to the patient to prevent fall from the table who had caesarean section operation".
24. At the cost of repetition, the said Expert had given his stand on the issue only after 'careful assessment of clinical data', which, once again establishes that the entire medical treatment record, together with post-mortem report was the basis on which he had expressed his view. It is also pertinent to note that the second report dated 02.05.2015 was given after a period of 14 long years. There are no substantial reasons stated for a change of opinion after fourteen long years, except for expressing that the first opinion was given without seeing the treatment details, which, as seen from the record, is not defensible. To a query from the Bench, as to the reasons for the injuries, as appearing in the post-mortem report, the doctor only said that it could be due to scar tenderness on the previous Caesarean Section scar and that he was not in a position to suspect that the patient would have fallen from the bed in the hospital. In fact, his opinion in the second report that the patient might have fallen at home earlier either on the bed, or some other surface, like the toilet at 38 weeks of pregnancy, either accidentally, or otherwise, with complaint of scar tenderness, is not substantiated by any documentary evidence, namely, any such recording in the patient's history or otherwise in the Bed Head Ticket. There is no whisper of scar tenderness or any such apprehension of fall at home in his earlier report. For all the aforementioned reasons, we are of the considered view that the first report given on 15.12.2001 read together with the affidavit of evidence filed before the State Commission by the very same doctor can be relied upon.
25. The contention of the learned counsel for the Respondents that there was no specific allegation in the FIR that the Complainant had seen the patient fall from the Operation Theatre table and therefore the pleading in the Complaint that the cause of death was due to injuries and negligent treatment by the hospital, should not be taken into consideration, is untenable in th light of the specific submission that the Complaint was filed on 16.05.2002, subsequent to the issuance of the post-mortem report to the Complainant. In the FIR it was alleged that the Complainant observed negligence in the treatment by the Nursing staff on 22.05.2000 by Compounders, Nemai & Shamser, as they were trying to administer injection after it had expired. It was also alleged that four bottles of blood were obtained and that some documents were seized. The law is fairly well settled that FIR is not supposed to be an encyclopedia of the entire events and cannot contain the minutest details of the events. When broad/essential material facts pertaining to an incident, are stated in the FIR, that is sufficient.
26. In the Written Version, the Respondents had denied that the patient sustained injuries on the head and right side of the body and that peeping inside the Operation Theatre does not arise as nobody is permitted to access the Operation Theatre other than the Doctor and his staff. It was pleaded that the patient was normally shifted to the bed by a stretcher. The specific plea that there was no scope for the Complainant to have heard a 'thud' sound and peeped into the operation theatre does not deserve any consideration. Since what is pleaded is the standard practice, any Hospital is expected to adopt and even if it is assumed for the sake of argument that it was so in the instant case as well, but neither the Hospital nor the treating Doctor have been able to give any plausible explanation about the nature and occurrence of injuries, viz., Deep Bruise (dark red) 8" x 6" over the right antero-lateral abdominal wall, big size nearly covering whole of the right (illegible) (illegible) abdominal wall with huge extravasation of blood in and around, etc., except for a bald plea that these were pre-existing. Had the injuries been pre-existing, as is sought to be made out in the second affidavit of Dr. A.K. Gupta, they ought to have been reflected in the Operation Theatre notes, which is not the case here. Going by the post-mortem report, we have no hesitation in coming to the conclusion that the injuries in question were sustained by the patient in the Operation Theatre.
27. As far as the question of wrong administration of Haemeccal and non-monitoring of sugar levels is concerned, the same has not been corroborated by any Expert evidence. There is force in the argument of the Learned Counsel for the Respondents that Gestational Diabetes is common in cases of delivery.
28. The Hon'ble Apex Court in Savita Garg Vs. Director, National Heart Institute - (2008) 8 SCC 56 has observed that 'Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or the hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was 92 administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital, which has to justify and not impleading a particular doctor, will not absolve the hospital of its responsibilities".
29. In our view, the said decision is on all fours to the facts of the present Appeals. Following the said order, we are of the view that the Respondents have failed to discharge the onus, relating to the injuries on the person of the Patient/deceased. Neither the treating doctor nor the staff either in their Written Version or in their affidavits by way of evidence, gave any explanation to the nature of these injuries, except for their bald denial that they had never occurred. This rationale does not hold any water in the light of the voluminous documentary evidence on record.
30. We rely on the judgment of the 3-Judge Bench of the Hon'ble Supreme Court in Ashish Kumar Mazumdar Vs. Aishi Ram Batra Charitable Hospital Trust & Ors., (2014) 9 SCC 256, in which the Hon'ble Apex Court, while dealing with the aspect of duty of care, applied the principle of 'res ipsa loquitur' and observed that the duty of the hospital is not limited to diagnosis and treatment but extends to looking after the safety and security of the patients, particularly, those who are sick or under medication and therefore can become delirious and incoherent, has laid down as follows :-
"8. The maxim res ipsa loquitur in its classic form has been stated by Erle C.J. "........where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."
The maxim applies to a case in which certain facts proved by the plaintiff, by itself, would call for an explanation from the defendant without the plaintiff having to allege and prove any specific act or omission of the defendant.
9. In Shyam Sunder and Others vs. The State of Rajasthan2 it has been explained that the principal function of the maxim is to prevent injustice which would result if the plaintiff was invariably required to prove the precise cause of the accident when the relevant facts are unknown to him but are within the knowledge of the defendant. It was also explained that the doctrine would apply to a situation when the mere happening of the accident is more consistent with the negligence of the defendant than with other causes".
31. Taking into consideration, the facts and circumstances of this case, the principle of 'Res Ipsa Loquitur' is squarely applied. The judgment of the Hon'ble Apex Court (supra) together with the treatment record, post-mortem report, expert opinion, affidavit of Dr. Mazumdar and earlier opinion of Dr. A.K. Gupta, we are of the perspective view that the treating doctor and the Nursing staff have failed to establish that they have performed the duty of care as per the standard established norms of normal medical parlance. This amounts to negligence on the part of the Hospital, the treating Doctor and the Nursing Staff, for which the Complainant has to be compensated.
32. The Hon'ble Apex Court in V. Krishna Kumar, Vs. State of Tamil Nadu & Ors., (2015) 9 SCC 388, has discussed the 'Quantification of Compensation' as follows:
"The principle of awarding compensation that can be safely relied on is restitutio in integrum. This principle has been recognized and relied on in Malay Kumar Ganguly vs. Sukumar Mukherjee, (2009) 9 SCC 221 and in Balram Prasad's case (supra), in the following passage from the latter:
"170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitution in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co.)".
An application of this principle is that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event".
33. In Balram Prasd vs Kunal Saha (2014) 1SCC 384, the Hon'ble apex court has laid down as under :-
Loss of a wife may always be truly compensated by way of mandatory compensation. For compensating a husband for loss of his wife, courts consider the loss of income to the family. It may be based on what she had been earning.
Pecuniary damages and special damages need to be separately assessed. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money. Pecuniary damages may include expenses incurred by the complainant such as: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. Non-pecuniary (special) damages may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
34. Having regard to the fact that the patient was only 32 years with a life expectancy of 70 years; died within a day of Caesarean Section, leaving behind an infant baby girl; was previously engaged as a Private Tutor, earning ₹800 to ₹1,000/- per month, substantiated by three affidavits of third-parties; the medical expenses incurred and the fact that there is no straight jacket formula to quantify the loss of a wife to the husband, the loss of love and affection of a mother to the infants, we are of the considered view that a lumpsum amount of ₹8,00,000/- would be an adequate and just compensation for the mental agony in rearing of motherless children.
35. Consequently, the Appeal is allowed; the impugned order is set aside with a direction to the Second, Third and Fourth Respondents, namely, the Nursing Home, to pay jointly and severally, to the Complainant, a lumpsum compensation of ₹8,00,000/-, within four weeks from the date of receipt of this order, failing which, the amount shall attract interest @ 9% p.a., from the date of filing of the Complaint, till the date of realization. We also award costs of ₹10,000/-.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER