State Consumer Disputes Redressal Commission
M/S Modern Nursing Home vs Sri Somnath Mukherjee on 30 January, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.34/A/07 DATE OF FILING: 09.02.2007 DATE OF FINAL ORDER: 30.01.2009 APPELLANTS 1) M/s. Modern Nursing Home Duila Beltala, Andul, P.S. Sankrail Dist. Howrah i) Dr. Syed Asgar Nawaz S/o Late Syed Khoda Nawaz ii) Dr. Manick Lal Maity S/o Late Motilal Maiti iii) Sri Pravash Kumar Hazra S/o Late Haradhan Hazra All are residing at Vill. & P.O. Duilya Dist. Howrah iv) Abdul Hossain S/o Abdur Rob 16/1, Sir Syed Ahmed Road Kolkata 700 014 All the above (i) to (iv) are the Partners of the said M/s. Modern Nursing Home 2) Dr. Saiyad Asgar Nawaz C/o Modern Nursing Home Duila, Beltala, Andul, P.S. Sankrail Dist.- Howrah RESPONDENT 1) Sri Somnath Mukherjee S/o Sri Paresh Nath Mukherjee Vill- Mahishila ( Green Park) P.O. Mahishila, P.S.- Sankrail Dist. Howrah PROFORMA RESPONDENT 2) The Cashier Working under M/s. Modern Nursing Home Duila, Beltala, Andul, P.S.- Sankrail Dist. Howrah 3) Regional/General Manager Oriental Insurance, Howrah Branch P-4, Dobson Lane, Howrah - 1 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MR. A.K. RAY MEMBER : MRS. S. MAJUMDER FOR THE APPELLANT : Mr. S. Nayak, Advocate FOR THE RESPONDENT : Mr. D. Ghosh, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This appeal was filed challenging order dated 04.01.2007 passed by District Consumer Disputes Redressal Forum, Howrah in Complaint Case No.HDF 83 of 2005 whereby the complaint was allowed with the following order:
Ordered that the complaint is allowed on contest with cost against OP No.1, OP No.1(i) to 1(iv), OP No.2 and is ex parte against OP No.4 with cost. OPs. No.1, 1(i) to 1(iv) are jointly and severally liable to pay compensation of Rs.3,00,000/- (Rs. Three lacs) to the complainant. OP No.2 is also liable to pay a sum of Rs.1,00,000/- (Rs. One lakh) personally to the complainant. OPs excepting OP No.3 OPs No.1, 1(i) to 1(iv) & OP No.2 are jointly and severally liable to pay a sum of Rs.50,000/- towards pain and mental agony to the complainant. OPs excepting OP No.3 is liable to pay litigation cost of Rs.1,000/- to the complainant. OPs are directed to pay the aforesaid sum within one month from the date of this order failing which complainant is entitled to get the aforesaid sum along with interest @ 12% per annum till the final payment.
Let certified copies of the order be given to the parties, free of costs, at once.
The case of the complainant is that the wife of the complainant had been taking medical check up from OP2 doctor during her pregnancy. On 16.12.04 the patient was admitted in OP1 Nursing Home and on 17.12.04 at about 6:16 P.M. one male baby was delivered in normal course. The complainant stayed with the patient in the said nursing home upto 10 P.M. on 17.12.04 and found his wife and the new baby both were quite well. When the complainant left he gave one telephone number to the staff of the nursing home for any emergent information.
On 18.12.04 when the complainant arrived at the nursing home in early morning he came to know from nearby medicine shop that his wife expired last night. Entering the nursing home as he found his wife dead, he asked reason of death but did not get any reply. The doctor was absent but when the doctor reached the nursing home, the complainant found that the doctor was in drunken condition and he could not give any satisfactory answer to the complainant but he issued one certificate where he alleged the cause of death as postpartum bleeding and death was at 2:45 A.M. on 18.12.04. The complainant lodged an FIR alleging negligence and the death due to negligence of the OPs. Complaint was filed seeking relief of compensation of Rs.7 lacs for the death of the wife due to negligence of OP1, Rs.2 lacs for negligence of OP2 and jointly against OPs for Rs.2 lacs for pain and mental agony and for cost.
The OPs filed their joint written version. Contention was made on non-joinder and mis-joinder of necessary parties, absence of locus standi and that complainant is not a consumer as services rendered by OPs were gratuitous. Statements have also been made denying contentions as made in the complaint.
The OPs also narrated facts as regards the actual happening on the relevant days.
Complainant examined himself as PW1 and he was cross-examined by the OPs. Sri Bidyut Debnath and Shri Swapan Ghosh filed evidence on affidavit and they were cross-examined. The OP2 filed his evidence on affidavit on behalf of the OPs and he was cross-examined by the complainant.
Heard Mr. S. Nayak, the Ld. Advocate for the Appellant and Mr. D. Ghosh, the Ld. Advocate for the Respondent.
Contention of the OPs/Appellants mainly is that the OPs at the initial stage advised the patient to be admitted in a Government Hospital for better facilities and the patient party having not accepted the said advice, cannot make a complain with regard to the treatment by the OPs. Moreover, the requirement of considering the necessary aspects of the treating doctor and the nursing home in a case alleging medical negligence, were not considered and the OP2 having due qualification, skill, experience and having acted with due care in extending the treatment to the patient, could not be held responsible for any medical negligence. It is further contended that the complainant having not filed any experts opinion, cannot claim that he has proved the allegation of medical negligence against OPs. Moreover, the compensation awarded is not based on any evidence or any assessment either provided by the complainant or considered by the Forum on the materials on record.
On behalf of the Complainant/Respondents it is contended that in the appeal question as to whether complainant is a consumer cannot be raised. Moreover, the nursing home was unauthorized to run as its licence expired in the year 2003. Contention of the complainant is that patient was kept throughout in the labour room and this itself shows deficiency in service. Further complain of the complainant is that there is neither any blood bank nor there is any provision for procuring blood necessary for treating a patient and ambulance was also neither available nor was arranged for and these facts show conclusively the negligence on the part of the OPs. Reference was made to evidence of the OP2 himself that blood was required.
We have considered the contentions of the parties as also the materials on record. Admittedly facts required to be considered are of very short span. The patient was admitted on 16.12.04 and delivered a male baby on 17.12.04 at about 6:16 P.M. It is the case of both parties that delivery was normal and after delivery both the mother and the baby were doing well. In so far as the complainant is concerned he left the nursing home at 10 P.M. on 17.12.04 and came back to the nursing home in the next morning when the patient already expired. Therefore, it is apparent that the complainant is not in a position to prove anything as to what happened and what resulted in the death of his wife. The OP2 is the doctor who treated the patient and he is also one of the owners of the nursing home. The OP2 himself claimed that he was present in the nursing home when the patient started feeling unwell at 12:30 A.M. Therefore, it is for the OPs to prove that whatever happened which caused death of the patient, were not due to any negligence on the part of the OPs.
The facts are within the special knowledge of the OP2 and, therefore, it is his responsibility to bring out facts to show that death was not due to his negligence.
For finding out the truth the written version has been perused for ascertaining the pleading in defence. As regards pleading we find that the OPs have stated that the patient was of poor health and OP2 was not checking up for the entire period of pregnancy. The normal delivery of the male child was admitted and after birth of the child, the patient was found to be in active mood and took her normal food at 8:30 9:00 P.M. and was alright till 12 Oclock. The OP2 was present all through at the nursing home.
When the patient complained of some uneasiness OP2 attended her and gave her medicine for mild difficulty in breathing.
Watching her till 1 P.M. and seeing her improvement slightly, the OP2 found the patient complained of uneasiness in breathing and developed bleeding more than average from uterus and it was found to be due to insufficient contraction of uterus. All sorts of medical care and treatment were started to tackle post partum bleeding so that patient did not go in shock. The complainant was contacted over phone but the complainant expressed his inability to reach the nursing home in the night. The doctor provided his own Maruti Car to bring the complainant to nursing home and when the complainant reached there he was suggested to shift the patient to any Government Hospital where all sorts of facilities are available.
But as the complainant refused to comply and failed to arrange for extra blood the OPs arranged for all treatments and applied all medicines but as there was a total failure of contraction in uterus, as a result thereof the patient did not survive.
The above case of the OP2 has been considered in view of the evidence on record where the complainant has made out a case that he left the nursing home at 10 P.M. and came back in the early morning next day. The OP2 though has stated that the complainant was brought by his Maruti Car but he failed to produce any witness or evidence in support thereof. The persons mentioned by OP2 as were present at the time of the emergency and death of the patient, are the persons who owned or employed in the medical shop. No explanation is available as to how those people were around in that hour of the night.
In view of the evidence available on records we accept the contention of the complainant that he was not present in the night in the nursing home and was not informed about the emergency.
Even if the case of the OPs is accepted as correct, the alleged failure of the complainant to arrange for hospital facility or for blood in the middle of the night in such emergency condition, cannot be treated as fault and the OPs are not thereby absolved of their responsibility of meeting an emergency.
With regard to the ailments from the materials on record it is apparent that the trouble started after 12:30 in the night. The OP2 himself has admitted in paragraph 23 of the written version that the death was due to excessive bleeding as the uterus was not contracting. The OP2 also could not deny in evidence that had there been blood transfusion, the patient would not have died. In this background we have to consider as to who were the persons responsible for arranging the blood for transfusion. There can be no two opinions that such responsibility was of the OP2 who was the treating doctor and was also one of the owners of the nursing home. When he undertook the responsibility of the patient for delivery of a child, he was to make all arrangements to meet any emergency. Even if the storage of blood is not there in the nursing home it must have an arrangement for procuring blood of the suitable group so that in case of emergency the situation can be tackled. Evidence of the OP2 shows conclusively that neither any arrangement for blood was made by OPs nor they advised the complainant for making prior arrangement for blood as precautionary measure. This conclusively shows negligence on the part of the OP2, particularly, when even according to his own case the OP2 found blood was required to be transfused and when blood was not available the OP2 attempted to shift the patient to another superior nursing home/hospital where facilities were available.
The next thing which is required to be considered is as to alternative arrangement which was required in case of an emergency which could not be coped by the nursing home or the treating doctor. This is shifting of the patient to another nursing home/hospital with superior arrangement and for such shifting an ambulance is required with necessary fittings.
The nursing home was not having an ambulance nor it kept an arrangement for getting an ambulance when emergency arose.
In such circumstance the nursing home was at fault and there was negligence.
The medical records show that on 17.12.04 at 10:00 P.M. the patient was well and uterus was firmly contracted. At 12:05 A.M. the patient was found restless, uterus was slightly flabby and there was bleeding. Therefore more than two and half hours time was available after bleeding started and neither blood was procured nor ambulance was made available for this long period. These facts show gross negligence of OPs.
With regard to the contention that the complainant is not a consumer as the service rendered by OPs was free of charge, we find that the OPs are rendering service charging fees from the patient and nothing has been produced to show that the OPs rendered service to all free of charge. The complainant said that he paid money and did not get any receipt. This has been denied by the OPs. But OPs have been unable to prove that they rendered such service free particularly when the patient or the complainants are not persons known to the OPs in any manner. Admittedly at any point of time OPs did not call upon the complainant to make payment of the dues. The declaration form (Ext.10) recording undertaking taken from patient party to pay all dues, conclusively shows the correctness of the contention of the complainant. In such circumstances we accept the contention of the complainant that he paid money and the receipt was not granted which also amounts to deficiency in service on the part of the nursing home. In the circumstances we also hold that the complainant was consumer.
In view of such findings as regards the contentions of the respective parties we took up for consideration the quantum of compensation to be awarded. The Forum below has awarded compensation of Rs.3 lacs against OP1, OP1(i) to 1(iv) jointly, Rs.1 lac against OP2 and Rs.50,000/- jointly against all except OP3 and cost of Rs.1,000/-. In view of the findings on the extent of negligence of the OPs causing death of the young wife of the complainant we find that the compensation awarded is not disproportionate.
With regard to the law relied on by the parties we find that the appellants relied on the judgments in the case of Indian Medical Association-Vs-V.P. Shantha reported in (1995)3 CPJ 1 in support of their contention that the service rendered by the OPs being free of charge proceeding before a Forum under the Consumer Protection Act, 1986 is not maintainable. But in view of the findings on facts that the OPs were not rendering the service free of charge this judgment does not require a detail consideration. The next reference was to the judgment in the case of Spring Meadows Hospital-Vs-Harjot Ahluwalia reported in 1998 CTJ
81. But as findings have been recorded hereinabove as regards medical negligence on the part of the OPs in the facts of the case the said judgment does not help the appellants. Next reference was to the case of Dr. Laxman Balkrishna Joshi-Vs-Dr. Trimbak Bapu Godbole reported in AIR 1969 SC 128. In view of the findings on facts arrived in this judgment, the case of Dr. Laxman Balkrishna Joshi also does not help the appellant. Next reference is to Jacob Mathew-Vs-State of Punjab reported in 2005 CTJ 1085 also does not help the appellant as findings have been arrived at on facts holding medical negligence in the present case. Next reference is to Smt. Malathi, N.R.-Vs-Dr. Vidyamani reported in 2008 CTJ 719 decided by the Honble National Commission in fact supports the contention of the complainant respondent. Next reference is to Dr. Biswanath Das-Vs-Bijoy Sinha Roy reported in 2008 CTJ 737 decided by the Honble National Commission is on principle that a medical practitioner would be liable only when his conduct fall below that of the standards of reasonably competent practitioners in his field. But this also does not help the appellant in the present facts. It has not been accepted on facts that service rendered by OPs free of charge, and, therefore, the case of Rabinarayan Sahoo-Vs-Dr.B. Jayaram Patra reported in 2004 CTJ 337 decided by the Honble National Commission has no application. As the negligence found herein is not on intricate question of medical science, the judgment in the case of K.S. Bhatia-Vs-Jeevan Hospital reported in 2004 CTJ 175 also has no application.
As regards requirement of experts opinion to hold medical negligence, the same applies when negligence in method of treatment is considered as the Forums/Commissions are not having technical expertise to assess correctness of treatment either in respect of surgery or in respect of medicines/injections applied. But the failure and negligence found in the present facts are not of such special nature and therefore findings can be arrived even in absence of experts opinion, particularly when reliance was placed on the evidence of the OP.
As regards the medical literature we find that the text book of Obstetrics and Neonatology of Dr. C.S. Dwan records at Page 509 as follows:
Postpartum haemorrhage causes 10% maternal deaths in India, thus forms important cause of maternal mortality. However under proper obstetric care no woman should die of postpartum haemorrhage.
In the same book in respect of management of haemorrhage it has been advised to arrange adequate blood transfusion.
The facts found hereinabove in the background of the above law and medical literatures, show the negligence on the part of the OPs.
The contention as regards the expiry of licence of the nursing home is not relevant as even if it so the same has nothing to do with negligence alleged.
In view of the above findings we do not find any ground for interference with the impugned judgment and the same is hereby affirmed. The appeal is dismissed on contest without costs.
(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT