State Consumer Disputes Redressal Commission
Mr. Somnath Pal vs Dr. Somendra Saha on 4 August, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/98/2018 ( Date of Filing : 12 Feb 2018 ) 1. Mr. Somnath Pal Vill. & P.O. - Duillya, Patra Para, Mourigram, Dist. Howrah, W.B, Pin -711 302. 2. Mr. Avisek Pal S/o Mr. Somenath Pal & Lt. Sadhana Pal, Vill. & P.O. - Duillya, Patra Para, Mourigram, Dist. Howrah, W.B, Pin -711 302. 3. Miss Sudeshna Pal D/o Mr. Somenath Pal & Lt. Sadhana Pal, Vill. & P.O. - Duillya, Patra Para, Mourigram, Dist. Howrah, W.B, Pin -711 302. ...........Complainant(s) Versus 1. Dr. Somendra Saha Reggistration no.36873(WBMC), 80/12, Baruipara Lane, Kolkata - 700 035. ............Opp.Party(s) BEFORE: HON'BLE MRS. SAMIKSHA BHATTACHARYA PRESIDING MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER PRESENT: Mr. S.S. Dhar, Suraj Roy, Ms. Sudeshna Ghosh, Advocate for the Complainant 1 Mr. Abhik Kr. Das, Advocate for the Opp. Party 1 Dated : 04 Aug 2023 Final Order / Judgement SAMIKSHA BHATTACHARYA, MEMBER The instant complaint has been filed by the complainants under Section 17(1)(a)(i) of the CP Act, 1986 against the OP Doctor.
The facts of the case, in brief, are that the Complainant No. 1 is the husband of Mrs. Sadhana Pal (hereinafter referred to as 'patient') since deceased and Complainants No. 2 & 3 are the son and daughter of deceased Sadhana Pal respectively. The complainants have filed the instant complaint against the OP due to negligent act, dereliction of duty and lack of standard medical care and deficient medical service of OP and resultant medical negligence.
On 23.01.2016, the complainant No. 1 accompanied his wife for medical advice of OP, since the patient/the wife of the complainant No. 1 had been suffering from joint pain and the OP doctor started treatment without any complete vital sign and symptom. The patient visited second time in the doctor's chamber on 20.02.2016 and the OP doctor prescribed medicine without any record of complete vital sign and symptom and did not advise any clinical test. After undue demise of aforesaid patient, the complainants found that various medicines were used without confirmation of disease and/or disorder. The patient visited the doctor third time on 24.03.2016, fourth time on 31.03.2016 and lastly on 05.04.2016. The OP Doctor prescribed medicine without recording any symptom such as SpO2 pulses/heart rate and the OP did not advise any clinical test. On 10.04.2016, the condition of the patient was severely deteriorated and the complainants immediately rushed to the clinic of Dr. J. Talukdar around 12:30 p.m. and he advised to admit nearby District Hospital immediately and the aforesaid patient was admitted in Howrah District Hospital on that day, around 2:30 p.m. The Howrah District Hospital declared the patient dead on 14th April, 2016 around 9:35 am., and the cause of death was Bilateral Pneumonia and Acute Respiratory Distress Syndrome (ARDS). For the faith and assurance of the OP doctor the patient was treated by the OP doctor and the condition of the patient was deteriorating under the treatment of OP and the OP doctor neither referred to the patient to any Rheumotologist, Immunologist, Neurologist or any other doctor who can manage the actual problem of the patient nor the OP rendered his service properly. The complainants have stated that the sufferings of the patient was due to careless and negligent act of the OP which is evident from the facts. At the time of sufferings of the patient, the complainants were in a state of mental shock and trauma and helplessness and therefore, they have filed the instant complaint praying for compensation for the loss and damages occurred due to such negligent act of OP. The complainants have stated in their petition that the patient was serving as an Accountant of a Private company whose monthly salary was Rs.11,800/- after deduction of PF, ESI and others and therefore, they are entitled to pecuniary damages of Rs.31,28,400/-. They have also claimed the pecuniary damages towards expenditure incurred for treatment, travel and incidental expenses and payment for court proceeding along with non-pecuniary damages towards emotional distress, pain and sufferings of the complainants and the pain & sufferings endured by the patient along with the punitive/exemplary damages. Hence, the petition of complaint praying for declaring the OP that he is individually liable for medical malpractice and negligence and to direct the OP to pay special damages/compensation & punitive/ exemplary damage to the complainants as given in the schedule of the claim of the present complaint amounting to Rs.93 lakhs along with litigation cost. The complainants have also prayed for taking appropriate action against the OP for careless and negligent acts of omissions and commissions on the part of his duty in his treatment of the patient through Medical Council Act, 1956 and also through the Medical Council under the West Bengal Medical Council Act.
Sole OP appeared before this Commission and filed his written version. In his written version, the OP has stated that the complaints is erred for non-joinder of treating Doctors namely, Dr. Jayanta Talukdar, Dr. Souren Paul, Dr. Dhrubajyoti Halder, Dr. Ritusanhita Roy, Dr. Rajarshi Banerjee, Dr. Monobina Sarkar, Dr. Subrata Naskar, Dr. Debasis Dutta and the Howrah District Hospital where the patient expired after a prolonged treatment by the said doctors from 10.04.2016 to 14.04.2016 for Pneumonia which is known to be infection caused primary by bacteria or virus and less commonly by fungi and parasites and ARDS, which is not a particular disease; rather, it is a clinical condition triggered by various pathologies such as trauma, pneumonia, and sepsis. The OP doctor has also stated in his written version that the Hon'ble Supreme Court in the judgment reported in 2009 (1) CPJ 32 (SC) has specifically laid down that before admitting a complaint the complaint ought to have been referred for opinion of medical experts of specialized field before further proceeding but in the instant matter, the complainants have not filed any expert opinion in the matter which makes the complaint bad in the eye of law. Where the medical issues are involved the case is of complicated nature and without any evidence of medical expert of specialized field it would not be possible for this Commission to decide the matter and further the voluminous evidence has to be recorded. The Consumer Forums are being created for summery trial and, therefore, the present case be dismissed.
Ld. advocate for the OP has also stated that the complainants have not disclosed any cause of action against the OP. The complaint has been filed to malign the reputation of the OP and as such, the same is to be dismissed with cost. Since the matter is a complicated one he prays before this Commission to direct the complainants to approach the Civil Court or appropriate Forum for the appropriate reliefs. The complaint does not involve only the complicated question of facts of highly technical nature at the same time the evidence of experts is required to adjudicate the dispute. The evidence to be extended by the parties in support of their respective contentions which would involve elaborate oral evidence and adducing voluminous documentary evidence which requires detailed scrutiny and assessment of such evidence. The OP has further stated that the doctor is a physician practicing more than 35 years and in his initial practice career the mode of treatment was more on clinical basis rather than present day treatment which is mostly supported by different investigations as at that time most of the investigation was not possible in Kolkata. As such their clinical sense is more accurate and dependable. The patient first came to his chamber on 23.01.2016 when she was almost limping with difficulty. The patient complained of only multiple joint pains for several years without getting benefit from treatment by several allopathic doctors as well as homoeopathy and ayurvedic practitioner. She had also undergone standard tests which indicated that the patient was suffering from arthritis. The OP doctor clinically examined the patient and found that the patient was having severe pain in multiple joints along with inflammation and mild redness which indicated arthritis. The patient also gave history of susceptibility to cold for which she was taking anti-allergic medicines.
The OP doctor has further stated in his written version that he wanted to advice investigation. However, the complainants due to their financial constraints requested that due to their financial constraints they would be benefited if the treatment is started without any fresh investigations based on the last investigation report which they were carrying. The patient also requested for not undergoing any further tests as she was having unbearable pain and was passing sleepless night for the last few days. The patient and her husband also expressed that they have strong doubts about doctor pathological lab nexus for advising repeat unnecessary tests. Ultimately, they made a comment "Dr. Saha, we have come to your chamber after hearing a lot about you and please you start the treatment immediately as Mrs. Paul is passing sleepless night for last few days".
The OP has stated that the patient was thoroughly investigated by different doctors and all possible tests were done before coming to my chamber as per advice of previous doctors. All the tests indicated that the patient was suffering from arthritis. The OP doctor was of the opinion that the patient was suffering from rheumatoid arthritis which is an autoimmune disorder. He discussed with the patient that treatment will include resting the joint and alternating between applying ice and heat, weight loss was an important element in treating Arthritis. In view of the same he advised the following medicines:-
Omnacortil 5/6, Cartigen Duo, Mondeslor, Hetrazan, Slimtone D. The patient again came to OP Doctor's chamber on 20.02.2018 when her conditions was much better and her gait movement had remarkable improvement. He told her that the patient felt better with the help of steroids which had worked nicely. But it cannot be continued for a prolonged time. This time also they refused to do any investigations which he tried to advise. Due to financial constraints the complainants refused to undergo such test as because the medicines were working effectively. Then the doctor advised Methotrexate, Lefra, Sterio Dytor, Obix On the next visit, i.e., 24.03.2016, she gained weight by 2 kgs for which the steroids namely Sterio was withdrawn; however Methotrexate and Lefra were continued. The Patient on that day was advised to take Obix Tablet, Lasilactone and Cartigen Duo.
After the withdrawal of steroids the patient again developed with joint pain and she rushed to his chamber on 31.03.2016 and insisted to give steroids. This time also she did not give any history of cough, fever or any other symptoms for consideration. The patient was thoroughly examined and she was put on steroids along with other medicines. She was told to report after 3 days for further development. The medicine Alvicort and Omron (Omeprazole) were prescribed. The patient was told to report after three days for further development. On 05.04.2016, the patient was little better regarding joint pain symptoms and the OP doctor advised her to continue other medicines and use steroid as and when necessary. The OP doctor has stated that he thoroughly explained the patient and patient party about the role of steroid in joint disorder as she was on Methotrexate, Lefra and Steroids. The doctor told them to report to him if she would develop fever with cough or with any abnormal symptoms. The doctor made repeated requests for further investigations. After 05.04.2016 what happened to her was not informed to the OP doctor. Probably the patient developed fever after 5th April, 2016. If the patient was having fever he would have definitely given medicines, at least paracetamol and nominal antibiotics. The OP doctor strongly denied the facts that the patient came to his chamber with fever. In fact, she was slightly better on 05.04.2016 and expressed her gratitude for the improvement. Baclof 10mg was prescribed for muscle relaxants. The patient was suffering from arthritis for which the standard treatment protocol was followed. The registration number and the educational qualification of the OP doctor was disclosed in the chamber. The allegations made in the petition of complaint are denied and disputed by the OP. The compensation which has been claimed is baseless and has no footing to stand. The complainants have claimed a sum of Rs.2,60,000/- for court proceeding which is a out and out inflated statement as the court fees of the present complaint is Rs.4,000/- and the other expenses can never touch Rs.2,60,000/-. The complainants are the opportunists and they are trying to earn lumpsum for the death of their family member. The complainants have not disclosed income tax return of the patient to establish the earnings of the patient. The travel expenses are also devoid of any documentary evidence. The pain and sufferings endured by the patient cannot be compensated to the family members of the patient after her death as actionable claim is not inheritable in nature. The present complaint has been filed under total misconception of law as well as principles of medical science. The treatment rendered by the OP has no relation with the subsequent ARDS and Pneumonia. By the treatment of the OP Doctor the patient was benefited and the condition was improved. The complaint has been filed without understanding the true nature of medical science and with the frivolous intention only to harass the OP. Since the complaint is baseless and entire complaint does not disclose any cause of action the present complaint be dismissed with cost.
At the time of final hearing, the Ld. Advocate for the complainants has submitted that the patient was visited the chamber of OP on 23.01.2016 for joint pain. He drew our attention by showing the prescription dated 23.01.2016 wherefrom it reveals that only BP & BW were mentioned in the left column of the prescription. Other than Blood Pressure & Body Weight (BP and BW) nothing was mentioned in the case history. No symptom, no name of disease have been mentioned. Even the doctor has claimed that he has prescribed the medicine upon the previous report but nothing has been mentioned in the case history. It is mandatory to mention the registration number of the doctor in the prescription, which is also missing with the signature of the doctor/OP. The patient was visited second time on 20.02.2016, same thing happened at the time of writing prescription by the OP doctor. Only the body weight and blood pressure were mentioned along with 'multiple joint pain'. No registration number has been mentioned this time too. The complainants visited the OP doctor again on 24.03.2016 , 31.03.2016 and lastly on 05.04.2016. But the OP doctor never mentioned case history , the suggestion for any test relating to the situation of the patient, and did not mention the previous reports as opined by him. The condition of the patient was deteriorated day after day and ultimately, the patient was visited Dr. Jayanta Talukdar. The prescription of Dr. Jayanta Talukdar has been annexed by the complainants as Annexure B (running Page No. 22) wherefrom it reveals that Dr. Jayanta Talukdar has advised for urgent admission, mentioning the previous history. Ld. Counsel for the complainants also drew our attention by showing the medical record issued by Howrah District Hospital wherefrom it reveals that the patient was admitted in the Howrah District Hospital on 10.04.2016 with fever for seven days and expectoration. Ultimately, the patient died on 14.04.2016. Ld. Counsel for the complainants have further submitted that the complainants have filed a petition being No. IA/752/2018 in connection with the instant complaint case with prayer for expert opinion from SSKM Hospital. In course of hearing, the Interlocutory Application, Ld. Advocate for OP has submitted that the case may be referred to any medical college and hospital other than SSKM Hospital.
Upon hearing the parties over the Interlocutory Application, this Commission allowed the petition filed by the complainants for obtaining expert opinion from Superintendent of Medical College and Hospital, Kolkata. Accordingly, the Superintendent, Medical College and Hospital, Kolkata submitted its report and the report was received by this Commission which is reflected vide Order No. 7 dated 01.11.2018. From the expert opinion submitted by Medical College and Hospital, it is clear that there is medical negligence on the part of the OP doctor. Therefore, the Ld. Advocate for the complainants has prayed for allowing the complaint petition along with adequate compensation for the negligent act on the part of the doctor as well as deficiency in service.
In course of argument, Ld. Advocate for the complainants has also stated that in the written version filed by the OP, the OP has argued that the case is bad for non-joinder of necessary party but the case is not bad for non-joinder of necessary party since they have no claim against Dr. Jayanta Talukdar and Howrah District Hospital. Moreover, the prescription issued by Dr. Jayanta Talukdar and all the documents issued by the Howrah District Hospital are annexed with the complaint petition which are self-explanatory. The documents issued by the Howrah District Hospital, mention the history of the patient, the diagnosis and/or procedure of treatment. In the written version, the objection raised by the OP that 'before filing the complaint case, expert opinion is necessary' is not tenable in the eye of law since at the time of filing the complaint case, there was no necessity to file the expert opinion before admission of the complaint case. From the written version, it is revealed that OP doctor has prescribed Slimton D which is used to weight loss. OP has asked the question No. 32 in the form of questionnaire to the complainants as follows:"Question No. 32
Do you agree that on the third visit the body weight of the patient had increased which is an indication that drugs were effective and the patient was showing signs of improvement?"
Complainants replied in the following manner:
"If the medicines and drugs were effective they should not have increased the body weight of the patient when the patient was suffering from obesity. Therefore, it is clear that the OP Doctor has admitted that in spite of prescribing Slimton D medicine the patient was gaining weight."
From the questionnaire filed by the complainant against the evidence of OP it is clear from the reply submitted by the OP that he has not suggested any investigation. When the complainants have asked the OP that if he has given any advice for any clinical test to the patient, the OP doctor replied that he wanted to do investigation but due to financial constraints, the complainants wanted to start treatment. The OP has stated in the written version and in Answer No. 12 against the allegation No. 12 OP has replied that his diagnosis was based on history given, clinical symptoms and past investigation report. Therefore, the OP doctor has clearly admitted that the investigation report is necessary but he did not advise for so.
Therefore, it is crystal clear from the documents and the evidence as well as questionnaire and reply of the OP doctor that there is clear deficiency in service on his part and there was negligent act on the part of the doctor. Therefore, the Ld. Counsel for the Complainants has prayed for allowing the complaint petition by giving the direction upon OP for giving adequate compensation for the death of the patient at premature age and for the sufferings of the bereft family members of the patient.
Ld. Advocate for the complainant has cited the judgments passed by the Hon'ble National Commission in Ashok Kumar Upadhyaya vs. D N Misra [2011 Law Suit (CO) 554], Girja Kotha Koal vs. J K Tripathi and ors. [2014 Law Suit (CO) 6] and Pragma Hospital; Surinder Kansal; United India Insurance Co. Ltd. vs. Manjit Kaur; Sh Harjinder Singh; Kulvinder Singh,; Akhilesh; Sh Sanjeev, [2015 Law Suit (CO) 111].
Ld. Counsel for the OP has submitted that though in the prescription the OP doctor has not mentioned the registration number, the registration number of the OP doctor has been mentioned in the chamber. Patients, since deceased, visited the OP doctor for joint pain for which the patient was suffering for long. The patient was treated under the OP doctor for a very short span of 72 days only. Moreover, the patient was died due to pneumonia and ARDS. The patient was not died due to joint pain or arthritis. Though in the expert report, it is apparent that there is medical negligence, nowhere in the expert report it has been mentioned that the line of treatment was wrong by the OP doctor. The expert opinion does not make any comment that the OP doctor prescribed wrong medicine to the deceased patient. The patient has not come with fever before him. When the patient was suffering from fever, the complainant No. 1 took the patient to another doctor namely, Dr. Jayanta Talukdar but not informed the OP doctor. But in course of argument, Ld. Advocate for the OP has submitted with all fairness that not mentioning the registration number in the prescription and non-disclosure of the history in the prescription were wrong on his part. But complainants have not quantified the compensation prayed for. Therefore, the complainants are not entitled with the compensation as prayed for.
Ld. Advocate for the OP has cited the judgments passed by the Apex Court in Achuta Rao vs. State of Maharashtra, Kusum Sharma and ors. Vs. Batra Hospital & Medical Research Centre and C.P. Sreekumar M.S. (Ortho) vs. S. Ramanujam.
Ld. Advocate for the OP has also cited the judgment passed by the Hon'ble National Commision (Shakil Mohd vs. Dr. C.K. Dave). Ajit Kr. Roy vs. Dr. Amitabh Mishra.
Ld. Advocate for the OP has also cited the judgment passed in Jacob Mathew vs. State of Punjab & Anr.
To deal with the present case, first of all we have to consider the Expert Committee Report of the Medical College & Hospital, Kolkata.
As per order of this Commission, the Superintendent, Medical College and Hospital, Kolkata submitted the expert report. The Superintendent, Medical College and Hospital filed their detailed expert report for the procedure and treatment of the patient by the OP Doctor. The Expert Opinion clearly reveals that there is any negligence on the part of the OP Doctor. The main excerpts of the Report of Expert Committee, are as follows:
Prescriptions dated 23.01.2016 does not bear any registration number of OP/Dr. Somendra Saha.
There was no record of any complaint as stated by the patient as well as no mention of any present and past history/drug hypersensitivity etc. No details of any clinical examination findings are noted except for BP and BW.
No diagnosis, either provisional or confirmed, was mentioned in the prescription.
No laboratories investigations were advised.
Some medicines were advised without specific cautious or warning regarding advice those meditations.
The prescription dated 20.02.2016 also does not bear any registration number as before.
In the prescription dated 20.02.2016, no registration number no record of any complaint has stated by the patient. No detailed present and past history no clinical findings (except BP &BW) has been mentioned.
No diagnosis either provisional or confirmed is mentioned in the prescription. No laboratory investigations were advised only medicines some advice.
Prescription dated 24.03.2016 was similar to first two prescriptions.
Further no mentioned of any probable adverse effects of the prescribed medicine.
Prescription dated 31.03.2016 also does not mention any registration number, complain as stated by the patient, detailed present and past history just like previous three prescriptions. Again medicines were prescribed without probable adverse effects.
The prescription dated 05.04.2016 also does not mention any registration number and the complain as stated along with past history, clinical history are omitted just like previous four prescriptions.
But the expert report reveals that the prescription of Dr. Jayanta Talukdar dated 10.04.2016 mentions the following observations:
Patient had fever for 10 days with headache Myalgia, Arthralgia, Anorexia, Loose stool.
Her condition was critical as noted in the clinical examination findings, mainly BP 90/60, pulse 150/ minute, Anaemia & Cyanosis present, SpO2 66%. Accordingly Dr. Talukdar advised for urgent hospitalization in any nearby hospital. In the expert report, the detailed observations were noted by Howrah District Hospital where the patient was admitted on 10.04.2016 with provisional diagnosis of fever with convulsion.
First examination was done on 10.04.2016, at 2.40 pm, at Howrah District Hospital it was noted that her chief complaint was fever for 7 days with occasional cough and expectoration. Her BP-105/90, Pulse-140/minutes, bilateral Pneumonia and crepts were audible on auscultation, SpO2 92% (with oxygen). She was started bon moist O2 inhalation, Nebulization with Levolene, Budecort, Inj.Hydrocortisone, Inj. Amoxyclav, Inj. Rantidine, Inj. Moxifloxacin. It was noted in BHT that NS1 Ag, Dengue IgM and Malaria Dual Antigen were negative (done outside). However any date was not mentioned, neither the reports were produced before the committee.
On the same day, at 8.00 pm, her condition was deteriorated. She was having shortness of breath, had become drowsy and not responding properly; SpO2 with Oxygen was 80%. Patient was referred to ITU and was received in ITU at 10.40 pm on the same night. On receiving in ITU it was noted in BHT that HR=153/min, BP-136/76, SPO 45%, chest B/L crepts, CBG 137 mg/dl, ABG showed pH-7.47, PCO2-29, PO2-42, HCO3-20.8, NA-123, K-3.8. She was intubated with 8 size ET tube under sterile precaution and put on ventilator.
She was continued on ventilator and other supportive treatments were given. However, her condition gradually deteriorated. Poor prognosis was explained to patient party. On 14.04.2016 at 8.55am, patient had a Cardiac arrest; CPR was started, but she had to be declared clinically expired at 9.35 on 14.04.2016.
Death certificate issued by the Howrah District Hospital stated that the patient who was 50 years of age, female had expired on 14.04.2016 at 9.55 am and her cause of death is Bilateral Pneumonia ARDS The expert committee finally concluded to its decision as follows:
From the paper produced before this Expert Committee, it is clear that Dr. Somendra Saha, MD, fact that OP doctor had treated the patient and seen her in his chamber for 5 times. But the prescription written by Dr. Somendra Saha in this case bears prima facie evidence that he did not practise standard level of care which are reasonable Specialized Physician would have done. None of the prescriptions had his registration number mentioned in those, neither it mentioned his area of specialization - which are mandatory requirements as per guideline of Indian Medical Council (Professional Conduct, Etiquette Ethics) Regulation.
Furthermore, none of the prescriptions mentioned any presenting complaints, history of present and past illness, history of drug hypersensitivity, note of detailed clinical examinations (except for BP and body weight). The treating physician prescribed various medications in all of the 5(five) prescription, however, he did not write any confirmed/provisional-differential diagnosis in any of them. In a recent verdict, Hon'ble Bombay High Court has observed that prescribing medicines to patients without diagnosis amounts to culpable negligence (Reference: Dr. Deepa and Sandeep Pawaskar vs. State of Maharashtra, Bombay High Court).
It is also note worthy that many medicines prescribed by Dr. Somendra Saha, are notoriously known to have many adverse effects. Drug like Methotrrexate, Lefrlunomide, Predinisolone etc. has significant bearing on the immune system of the recipient, as well as can cause bone marrow suppression. So a prudent physician would have weighed all the pros and cons before prescribing those drugs and be strictly vigilant in monitoring the adverse effects. Surprisingly, Dr. Somendra Saha neither advised in his prescription to the patient regarding any possible warning signs of the adverse effects of the drugs, neither he advised a single laboratory investigation, during the entire course of his treatment, spanning over 5 chamber consultants. This amounts to a deviation of standard practice and dereliction of his duty as physician.
Moreover, the dereliction of the patient was occurred at the time of treating before him for a span of 72 days, even getting a span of long 72days the doctor could not notice the dereliction of the patient and did not refer the patient to any other doctor which is nothing but deficiency in service on the part of the OP doctor. In the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002, the Code of Medical Ethics has been described.
Upon hearing the parties perusal of the entire materials on record, particularly the evidence, questionnaire and reply by the parties and mainly considering the Expert Committee Report it is admitted fact that the patient was visited the OP doctor's chamber on 23.01.2016 first time complaining joint pain. It is also admitted fact that the OP doctor prescribed some medicine but did not mention any case history or did not give any advice for any clinical test. Not only on the first visit, but also on the follow up visit on 20.02.2016, 24.03.2016 and 31.03.2016, 05.04.2016, the OP doctor did not advise for any clinical test and did not mention the case history of the patient except blood pressure and body weight. The doctor opined that he has wanted to advise the clinical test but due to financial constraints the complainants wanted to start treatment and for that reason the OP doctor did not advise any clinical test. This plea of the OP doctor cannot be tenable in the eye of law. In the written version, the OP doctor has opined that since he is an experienced doctor of more than 35 years, he clinically tested the patient and he understood that the patient was suffering from Rheumatoid arthritis. But from the literature of Rheumotologyst we are of the view that some medicines need regular clinical test and investigation for treating Rheumatoid arthritis and prescribing the medicine for Rheumatoid arthritis. The medicines which to be prescribed and required doze of those medicines depend upon clinical investigation reports. The OP has also opined that he has started the treatment on the basis of previous investigation report. This plea also cannot be acceptable since nowhere in the prescriptions the previous investigation report has been mentioned by the OP. The further argument on behalf of the OP that the patient was under the treatment of OP for a short span is also not acceptable since document reveals that the patient was treated under him for 72 days. It is not a short span or it is not the fact that after a single visit the patient felt worse and the patient party changed the doctor. Not only single time, the patient visited five times at the chamber of the OP doctor and though the OP doctor treated the patient for 72 days knowing fully aware that the patient was not improving at all the OP doctor has neither referred her to any other doctor nor has advised the patient party to take the patient to another doctor for further opinion. It is the duty of the doctor, if any patient has not been improved day after day, to refer the patient to another doctor for further advice. But in the case in hand, the OP doctor did not advise for the same. The Ld. Counsel for the OP has argued that the patient was suffering from various ailments and for that reason the patient succumbed to death due to pneumonia and ARDS. Only in the prescription dated 20.02.2016, the doctor has mentioned in the case history 'multiple joint pain' along with blood pressure and body weight. The question of deficiency arises when the doctor has not done what should be done by him. In the instant case, the OP doctor had to advise for the clinical investigation. For the sake of argument, if we assume that first prescription was prescribed on the basis of the previous investigation report it should be mentioned in the case history. When the patient visited the chamber of OP further, the OP Doctor had to advise for the clinical investigation since the patient was not improving. In the written version, the OP doctor opined that he has prescribed steroid medicine. From the documents itself it reveals that without clinical investigation the doctor advised steroid and the doctor stopped the steroid medicine and again started steroid. In the written version, OP doctor has stated that since the patient was on Methotrexate and lefra he told the patient party to report him if the patient would develop fever with cough or with any abnormal symptom. But nowhere in the 5th prescriptions, it is noted for the same. The prescription dated 10.04.2016, issued by Dr. Jayanta Talukdar mentions that the patient was suffering from fever for ten days. But the prescription dated 05.04.2016, just five days earlier, issued by OP doctor does not mention about fever of the patient. It is clear that the OP doctor advised the medicines without proper diagnosis of the patient and with negligent manner which nothing but deficiency in service. The patient was suffering day after day under the treatment of OP doctor and ultimately expired due to the symptoms developed for wrong treatment of the OP doctor. On the basis of oral request of the patient party the OP doctor prescribed the medicines without any investigation for a long span of 72 days. In the written version, OP has stated that joint pain or arthritis is common disease which can be diagnosed clinically by taking history and checking the fact so. On the contrary, in the reply the OP has drawn that he has prescribed the medicine on the basis of previous investigation report as well as he advised for investigation but did not mention in the prescription due to financial constraints of the complainants as stated by the complainants. It should not be the practice of any medical practitioner that he should advice for investigation upon the choice of the patient party. Non-disclosure of registration number is another negligent act on the part of the OP Doctor. In the instant case, the procedure of treatment, non-disclosure of registration number as well as absence of history of the patient in the series of prescription proof negligent manner of treatment on the part of the OP.
Medical records not only serve as necessary documents for any management of a patient, they are also legal documents. In the instant case, this is not the fact that the patient was given the best possible treatment in accordance with accepted medical standards. The death of the patient was on account of lack of care and negligence on the part of OP doctor.
In this regard, it is pertinent to mention the following regulations of the Code of Medical Ethics.
Regulation 1.1.3 of the Code of Medical Ethics is reproduced as under:
"No person other than a doctor having qualification recognized by Medical Council of India and registered with Medical Council of India/State Medical Council(s) is allowed to practise Modern System of Medicine or Surgery. A person obtaining qualification in any other system of Medicine is not allowed to practice. Modern System of Medicine in any form.
Regulation 1.4 Display of registration numbers:
"Every physician shall display the registration number accorded to him by the State Medical Council/Medical Council of India in his clinic and in all his prescriptions, certificates, money receipts given to his patients."
Regulation 2.1 Obligation to the Sick:
"..........when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician."
Regulation 2.4 The patient must not be neglected.
"A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not wilfully commit an act of negligence that may deprive his patient or patients from necessary medical care."
Regulation 7.3 "If he/she does not display the registration number accorded to him/her by the State Medical Council or the Medical Council of India in his clinic, prescriptions and certificates, etc., issued by him or violates the provisions of Regulation 1.4.2."
Regulation 7.13 "It is improper for a physician to use an unusually large sign board and write on it anything other than his name, qualifications obtained from a University or a statutory body, titles and name of his speciality, registration number including the name of the State Medical Council under which registered. The same should be the contents of his prescription paper. It is improper to affix a sign-board on a chemist's shop or in places where he does not reside or work."
In the present case, we can rely upon the judgment passed by Hon'ble Supreme Court of India in Laxman Balkrishna Joshi Bapu Godbole and Anr.
"The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those, duties gives a right of action for negligence to, the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law require: (cf. Halsbury's Laws of England 3rd ed. Vol. 26 p.17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. But the question is not whether the judgment or discretion in choosing the treatment be exercised was right or wrong, for, as Mr. Purshottam rightly agreed, no such question arises in the present case because if we come to the same conclusion as the High Court, viz., that what the appellant did was to reduce the fracture without giving anesthetic to the boy, there could be no manner of doubt of his being guilty of negligence and carelessness. He also said that he was not pressing the question whether in this action filed under the Fatal Accidents Act (XIII of 1855) the respondents would be entitled to get damages. The question, therefore, is within a small compass, namely, whether the concurrent findings of the trial court and the High Court that what the appellant did was reduction of the fracture without giving anesthetic to the boy and not mere immobilisation with light traction as was his case, is based on evidence or is the result of mere conjecture or surmises or of misunderstanding of that evidence."
The OP has also stated that the pain and sufferings cannot be compensated to the family members of the patient. But the OP has not stated the single line to the extent that due to the death of wife of complainant No. 1 and mother of complainants No. 2 & 3 how their sufferings and loss can be compensated when a female member being a mother passed away at the age of 50 only. Moreover, when a working woman passed away at the age of 50 only, only the family members can understand and feel the loss. The absence of wife/mother of the complainants cannot be compensated by monetary compensation. Monetary compensation cannot heal their pain, loss and sufferings. However, if we award a monetary compensation that will heal their pain at least a little bit. No compensation is sufficient in lieu of a human life.
In the medical negligence cases the quantum of compensation is highly subjective in nature as the human life is most precious. The Hon'ble Supreme Court laid down different methods to determine 'just and adequate compensation'. However, further cautioned the tribunals, saying the amount of compensation awarded was not expected to be a windfall or bonanza, nor should it be mixed question of fact and law, but a mere speculative possibility of benefit was not sufficient.
In this context, we would like to rely upon the judgement of Hon'ble Supreme Court in Sarla Verma & Ors. Vs. Delhi Transport Corp. & Anr., 2009 (6) SCC 121, which observed:
"Compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just ..... Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.... Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions".
In the instant case the complainant claims Rs.93,00,000/- on the basis that the deceased was 49/50 years old and was working woman. She was having further 11 years of service. The deceased left one daughter and one son who were deprived of maternal care, love and affection, the husband (complainant No.1) was deprived consortium.
In view of the above discussion, we are of the considered view that the complainants, in the ends of justice, are entitled to compensation of Rs. 35,00,000/-, which is just and proper.
Accordingly, the complaint case succeeds.
Hence, It is, O R D E R E D The complaint case being No. CC/98/2018 be and the same is allowed on contest against the sole OP.
The OP is directed to give compensation of Rs. 35,00,000/- (Rupees Thirty-Five lakhs) only to the complainants within 45 (forty-five) days from the date of passing this order.
If the OP fails to comply with the order within the stipulated period the OP is further directed to pay interest @ 8% over the amount of compensation till the date of realization.
If the OP fails to comply with the aforesaid order within the stipulated period as mentioned above, the complainants are at liberty to put the decree into execution.
The complaint Case is thus disposed of accordingly.
Let a plain copy of the order be supplied to the parties free of cost. [HON'BLE MRS. SAMIKSHA BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER