State Consumer Disputes Redressal Commission
Sri Arun Kumar Chowdhury, Suri Para ... vs Dr. J. C. Samaddar, Salt Lake City, ... on 6 June, 2012
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.SC/9/O/2002 DATE OF FILING:13/02/2002 DATE OF FINAL ORDER:06/06/2012 COMPLAINANTS : 1) Sri Arun Kumar Chowdhury S/o-Late Surendra Nath Chowdhury Suri Para Lane, Bag Bazar P.O.Chandannagore Dist.Hooghly PIN-712 136 2) Sri Ashok Thakur S/o-Late Baidyanath Thakur 113, Green Park, Lake Town Kolkata-700 055 OPPOSITE PARTIES : 1) Dr. J.C. Samaddar West Bengal Medical Council Regn. No.25259 C.I.38, Sector-II, Salt Lake City Kolkata-700 091 2) Sri Naba Kumar Dey Proprietor and Owner of Lake Town Nursing Home, 224, Lake Town Block-B, Kolkata-700 089 3) Dr. C. C. Mondal, Sonologist Proprietor and Owner of Salt Lake Ultrasound Scan Centre CB-173, Sector-I, Salt Lake City Kolkata-700 064 BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE COMPLAINANTS : In person Ld. Advocate FOR THE OPPOSITE PARTIES : Mr. Srijan Nayek Ld. Advocate Mr. Aloke Mukhopadhyay Ld. Advocate Mr. Timir Baran Roy Ld. Advocate Mr. Amal Pal Ld. Advocate : O R D E R :
Dated:30/05/2012 HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This is a complaint case filed by the complainants.
The facts of the case may be summarized as follows:-
Sriparna Thakur was the youngest sister of complainant no.1 and the wife of the complainant no.2. She died on 04/06/01 at the age of 36 years. She could not conceive a child for a long spell of nine years after her marriage. She had undergone treatment, but there was no fruitful result. Ultimately she consulted the homoeopath Dr. Bholanath Chakraborty.
By virtue of his treatment she had conceived sometime in the month of October, 2000. During the first five months of her pregnancy she was under the care of complainant no.1 at Chandannagore. Thereafter she was shifted to her in-laws house at Kolkata for the availability of better treatment required for the advanced stage of pregnancy. She was admitted in a local Nursing Home, being OP No.2 as per the advice of the doctor, being OP No.1. She was admitted when her pregnancy was about 28 weeks so that she could be under proper care. Suddenly on 01/06/01 when she completed 36 weeks of pregnancy, she complained of no foetal movement in the womb and it was reported to OP No.1 and 2. But no attention was given by OP No.1 and 2 at that point of time on this aspect. It was within the knowledge of the OP No.1 and 2 that she had pregnancy with fibroid and it was the advanced stage of pregnancy. The abnormality in foetal movement needed immediate attention and investigation. She was under absolute bed rest and not even allowed to move out of the bed even to go to the attached toilet. The OP No.1 and 2 ignored about the complaint of the patient regarding the no foetal movement upto 04/06/01. The complainants and their relatives requested the doctor to take utmost precautions and not to take any chance. At last on 04/06/01 OP No.1 decided to refer Sriparna for USG to see the condition of the baby. The OP No.1 and 2 failed and neglected to arrange for USG in the Nursing Home itself by arranging a portable USG which was abundantly available in the city of Kolkata. The USG conducted on 04/06/01 showed that the baby had died in the womb. It was a case of IUD (Intra Utrine Foetal Death). The OP No.3 advised the complainants to rush back to the Nursing Home and consult the OP No.1 for further treatment.
Accordingly, Sriparna was brought back to the Nursing Home at about 4.15 p.m. She was taken into the OT for emergency operation for the delivery of the child. The OP No.1, 2 and 3 suppressed the material facts by not divulging the actual state of affairs, particularly the death of the baby in the womb. No requisition for blood was made before undertaking the operation. The OP No.1 and 2 kept the complainants in dark regarding the death of the child and OP No.1 undertook the so called emergency operation by violating medical norms and ethics and finally Sriparna suffered death in the hands of OP No.1.
The death of Sriparna was officially recorded at 11.12 p.m. on 04/06/01. Under such circumstances, the complaint was filed claiming compensation for deficiency in service.
The OP No.1 has filed W.V. denying the material allegations raised in the complaint. The case of the OP No.1 is that at no point of time he was informed that homoeopathy treatment of the patient was done by Dr. B. Chakraborty.
The petitioners suppressed the material facts. On 22/03/01 Mrs. Sriparna Thakur, since deceased, had abortion and OP No.1 was called at her residence and the OP No.1 advised her admission in hospital and she got herself admitted in Lake Town Nursing Home of her own choice. The OP No.1 never suggested the patient to be admitted in the said Nursing Home. After admission in the said Nursing Home she was treated there for seven days and after controlling the abortion which was confirmed by USG done by Dr. C. C. Mondal, OP No.3, was discharged on 29/03/01. Again on 12/04/01 for acute emergency the OP No.1 was called by petitioner no.2 and visited their residence and found that Mrs. Sriparna Thakur had a severe abdominal pain and blood stained vaginal discharge. The OP No.1 advised admission in any Nursing Home.
The patient was admitted in the Lake Town Nursing Home at her own choice. By conservative treatment the condition of the patient improved and the petitioner no.2 requested not to discharge the patient and to keep her in the said Nursing Home for observation in anticipation of further pregnancy disturbances. The OP No.1 agreed to keep her in the Nursing Home considering her age and history of past abortions. During her stay in the said Nursing Home she was diagnosed as gestational diabetic and developed pregnancy induced hypertension and she was taking Eltroxine for hypothyroidism since long.
On 17th April, 2001 she developed premature rupture of membranes. Subsequently, the pregnancy continued with conservative treatment. On 11/03/01 the USG report showed pregnancy of 23 weeks 3 days and on 01/06/01 duration of gestation became 35 weeks and not 36 weeks as stated in the application. The patient complained of less foetal movement off and on and it was a frequent phenomenon and each and every time the OP No.1 examined her including Doppler examination for getting foetal heart sound. On 5th June, 2001 at about 12 noon the relatives of Sriparna Thakur, since deceased, including the petitioner no.1 and 2 along with 20/30 persons suddenly came to OP No.1 and started abusing him and threatened him with dire consequences and forced him to write such notes which was not correct or true.
The OP No.1 lodged general diary with Lake Town P.S. being G.D. entry no.233 dated 05/06/01. Even after the death of the patient, the OP No.1 suggested post mortem examination of the deceased, but the patient party became very furious and refused to send the body for post mortem examination which was also communicated to the O.C., Lake Town P.S. and G.D. entry no.247 dated 05/06/01 was made. It has been categorically stated that the patient never complained of no foetal movement to the OP No.1. It is not mandatory for all Nursing Homes dealing with maternity cases that they have to provide facility of USG. The patient and her husband knew that there was no such facility of USG examination in the Lake Town Nursing Home, inspite of that the patient again got herself admitted in the month of April, 2001 in the said Nursing Home. During her stay in the month of March, 2001 in the said Nursing Home she also went to OP No.3 for USG. On 17/04/01 there was suspicion of premature rupture of membranes and vaginal discharge for which the patient was advised absolute bed rest and this discharge continued off and on throughout the latter part of the month of April and in the earlier part of May, 2001. Necessary treatment was done. As a matter of fact, during the last part of May she was allowed to visit lavatory and walk in room.
On 04/06/01 the OP No.1 received a telephonic call from sister on duty of Lake Town Nursing Home who informed him that the patient was feeling some unusual movement of foetus. The OP No.1 instructed the sister in-charge to inform the patient party immediately and he also rushed to the Nursing Home at about 11.30 a.m. He examined the patient very carefully and found that there were some confusion about the foetal heart sound as the patient had some tachycardia. A decision was taken for urgent USG for foetal profile.
The decision to withdraw from absolute rest was made under changed circumstances. Finding no USG clinic open in vicinity, the OP No.1 then contacted OP No.3 who had done previous two USG at his residence and he agreed to open his clinic and performed the USG on emergency basis. The USG was done at 2.30 p.m. on 04/06/01.
The OP No.1 retired in the year 1993 as Professor and Head of the Department of Obstratics and Gynecology, Calcutta Medical College. The patient was admitted in the said Nursing Home at her own choice. Regarding Annexure-D it has been stated that this is a hand written report made by OP No.3 with interpolated date. From that report it is evident that there were only multiple fibroids, foetal age 36 weeks, no foetal movement noticed nor any cardiac activity noticed, provisional sign IUD. This report was never shown to OP No.1 at any point of time and the same had been collected by the patient party on the next date, that is, 05/06/01 under threat of dismantling the clinic. The OP No.1 could get the report of USG on 04/06/01 over phone and took steps accordingly.
On 04/06/01 at about 3.30 p.m. the patient was brought back to the Nursing Home when USG report was not shown to him. On verbal report that the diagnosis of IUD was provisional and required clinical co-relation, the OP along with two other doctors again checked the patient and could not dispel the confusion about the foetal heart sound funic souffle and uterine souffle. A decision was taken for emergency caessarian section considering doubtful foetal heart sound along with rise of BP of the patient and signifying deterioration of pregnancy induced hypertension almost leading to eclamptic fit and post myomectomy pregnancy with abnormal foetal presentation. The patient was taken to OT after preparation of surgical dressing and Nifedipine was given in tongue to control BP, keeping a child specialist in readiness along with resuscitation instruments.
All the measures were taken to prevent any eclamptic convulsion. First requisition of blood was made under the signature of pediatrician. All possible measures were taken in consultation with anaesthesist, pediatrician and RMO and they waited until the BP came down to 150/90.
The patient was put in anaesthesia and caessarian section. Baby was delivered at 5.05 p.m. and the pediatrician found the baby stillborn, with multiple foetal malformations which was shown to the husband, the petitioner no.2. There was no method of delivery of foetus other than caessarian section for fear of rupture of uterus. No Nursing Home of middle class status had the stock of stored blood ready at hands. The blood is obtained by requisition from different blood banks of the city. The requisition of blood was made under the signature of the pediatrician simultaneously when the OP No.1 was busy in attending the patient after her arrival back to Nursing Home for control of her hypertension. Altogether the patient got eight units of blood transfusion before her death which was made known to the petitioner no.2. The OP No.2 himself explained the condition of the patient to the petitioner no.2, the husband of the patient and also stated that some small fibroids have to be removed after the delivery of the baby only for the position of the wound of the uterus after caessarian section. Myomectomy of fibroids coming on wound line during caessarian section is text accepted procedure and it was noted on the operation note sheet. The total hysterectomy versus sub total hysterectomy is to be decided on the nature of the pathology existent and since the patient had recurrent multiple fibroids including some cervical fibroids, the OP No.1 was compelled to do total hysterectomy. The petitioner no.2 was aware of the fact and the OP No.1 himself informed and explained to the petitioner no.2 the actual physical condition of the patient and on his consent the OP No.1 started operation of hysterectomy after caessarian section. The death of the patient occurred due to cardiac arrest which might have been due to amniotic fluid embolism.
The OP No.1 suggested for post mortem examination of the dead body of the patient which was vehemently opposed by the patient party. The total duration of the operation cannot be definitely gauged because there was a pause between caessarian section and hysterectomy for taking measures to stop vaginal bleeding by application of medicines like Prostaglandin, Dicyanen and Methargine etc. Suddenly bradicardia developed followed by cardiac arrest after completion of hysterectomy. The patient was shifted to cabin maintaining ventilation and other monitoring measures.
Again there was cardiac arrest and the patient died at 11.12 p.m. on 4th June, 2001. The OP No.1 got sufficient experience in gaenological surgery and acquired skill by dint of his talent, devotion, hard labour and observation.
He enjoyed WHO fellowship while working as a medical teacher in different colleges of West Bengal.
The case of the OP No.2, in short, is that on 12/04/01 the patient was admitted in the Nursing Home in a case of fibroid with pregnancy, vaginal discharge and uterine contraction. She was under the care of OP No.1. This admission was made for the second time in the Nursing Home during her pregnancy. Previously the patient remained admitted in the Nursing home from 22/03/01 to 29/03/01 and the complainant did not have any complaint against OP No.2. The relevant records will show that all necessary measures were taken by the OP No.2. It was very much known to the husband of the patient as to the arrangements and facilities available in the said Nursing Home. The husband of the patient took her to the USG clinic and all possible cares were taken by the OP No.2. The USG centre was chosen by the patient party because on earlier occasions the USG was done from that centre. There was never any complaint of no foetal movement in the mothers womb and no such report was made to that effect as it would appear from day to day chart maintained by the nurses of the OP No.2.
The OP No.3 has filed W.V. contending, inter alia, that the USG was done by OP No.3 on 04/06/01 and the report showed that the baby had died in the womb and it was a case of Intra Uterine Foetal Death.
After doing the USG the OP No.3 directed the complainant to rush to the Nursing Home and to OP No.1. On the said date USG report was handed over to the complainant and the USG report prepared by the OP No.3 clearly mentioned Huge multiple fibroids, foetal age 36 weeks, no foetal movements noticed nor any condiac activity noticed, IUD. The OP No.3 telephoned the doctor (treating the patient) twice to inform that the foetus was dead and he gave hand written report on the same day and typed conventional report on that date giving all details of the study, observation and conclusion arrived at by the OP No.3. There was no question of hiding any material information from the complainant or the treating doctor. Diagnosis by USG is always done from moving images on the monitor and then the doctors select the images and freeze them on the screen and take photograph on the films as samples. In the screening cases films are not taken but frozen images data are noted in a paper which is served as report. Printing of image is secondary which has no value in case of dead foetus. Diagnosis by USG is never done from static films, it is done from the moving screen, whereas in x-ray diagnosis is always done from static films. The OP No.3 was not supposed to explain the contents of the report to the party or to the patient. The OP No.3 did not suppress any fact and, as such, there was no collusion between the OPs.
The OP No.3 is not at all related to the treatment of the patient.
The complainant, in person, submits that her sister Sriparna Thakur could not conceive for a long time after her marriage and she had undergone necessary treatment, but to no effect. It is submitted that ultimately she was treated by the homoeopath Dr. Bholanath Chakraborty and she conceived. It is submitted that as it was a case of complicated pregnancy she was admitted in the Nursing Home under the care of OP No.1 on 12/04/01. It is submitted that from 12/04/01 she remained admitted in the said Nursing Home till her death on 04/06/01. It is contended that the patient complained of no foetal movement from 01/06/01 and the doctor did not advise for USG till 04/06/01. It is contended that OP No.1 ultimately advised the USG on 04/06/01 at about 2 p.m. when all the nearby clinics were closed. It is submitted that the OP No.1 referred the patient to OP No.3 for USG.
The complainant further submits that the OP No.3 did not deliver the USG film and only gave a hand written report for showing it to the OP No.1 wherein it was mentioned that it was a case of IUD (Intra Uterine Foetal Death). It is contended that the USG definitely showed that the foetus was dead and the OP No.1 on seeing the hand written report opted for caessarian section followed by myomectomy and hysterectomy. It is submitted that when the foetus was found dead there was no necessity to go for caessarian section and the removal of foetus could have been done by taking recourse to other methods.
It is submitted by the complainant that in a case of IUD, caessarian section has not been recommended as per the medical literature already submitted. It is also contended that as per the medical literature in such a case there would be possibility of profuse bleeding and because of the existence of fibroid, the caessarian section has not been recommended. It is submitted that the OP No.1 inspite of having such knowledge, opted for caessarian section followed by myomectomy and hysterectomy which ultimately resulted in the death of the baby and also the patient.
It is contended by the complainant that the requisition for blood was given by the doctor at the time of operation and because of such belated requisition for blood the condition of the patient deteriorated and ultimately she succumbed.
It is contended by the complainant that from 01/04/06 the patient complained of no foetal movement and the OP No.1 knowing that it was a complicated case of pregnancy with fibroid, abstained from advising USG and remained satisfied only with Doppler Test which was not supported by the medical science as appearing from the literature submitted in this case.
It is submitted by the complainant that there was the deficiency in service on the part of the Nursing Home and the OP No.3 as well. It is contended that the OP No.3 could not discharge his duty as he did not take the USG film at the time of examination which comes within the definition of deficiency in service.
The complainant has submitted some medical literature in support of this contention.
The Learned Counsel for the OP No.1 submits that previously the said patient got herself admitted in the same Nursing Home and remained there for the period from 22/03/01 to 29/03/01. It is submitted that there was no deficiency in service and, as such, the patient got herself admitted for the second time in the same Nursing Home on 12/04/01. It is submitted that on requisition the patient party has to arrange for blood.
As regards the USG report, Learned Counsel for the OP No.3 submits that on the same day the report of USG was submitted stating that it was a case of IUD. It is submitted that there was no deficiency in service on the part of the OP No.3.
The complainant no.1 has stated in his evidence that he has been authorized by the petitioner no.2 by a written power of attorney to make submission on his behalf and petitioner no.1 has been directed to submit the written documents and evidence in this case. The complainant no.1 has filed several documents in support of his contention. The complainant has stated in his evidence that in a case of pregnancy with fibroid tumors, caessarian section and myomectomy are forbidden as per the authentic medical books. It has further been stated that in case of Sriparna those instructions were not deliberately followed. He has further stated that serious irregularities have been observed in the OT notes (2) dated 04/06/01. It has been stated in evidence that Sriparnas pregnancy was of special nature and she was admitted well in advance at OP No.2 for special care by the OP No.1, but no such special care was taken as revealed from daily treatment chart of OP No.2.
The OP No.1 has stated in cross examination that the patient was under clinical care (conservative) by the doctors. He has further stated that the Foetal Heart Sound (FHS) was regularly monitored and Sriparna Thakur was also made to hear FHS by Doppler at the Nursing Home without moving her unless compelled as it was the case on 04/06/01. It has further been stated that USG is not always correct and the result varies from area to area and there is no standard till date fixed for result of a particular USG.
It has been stated that in 2001 portable USG machine was very few in number available in Kolkata and the same were not allowed by the owners; so she was to be taken to the clinic of OP No.3.
The OP No.1 has stated in his cross examination that he never referred the concerned patient to Dr. C.C. Mondal, rather he told them about the USG Centres in the vicinity of their residence and they according to their own choice had gone to the clinic of OP No.3 for having the USG done.
The OP No.1 has stated in cross examination that he was totally aware that Sriparnas pregnancy was of a special nature because she had numerous previous myomectomy operations for enucleation of fibroids and subsequent various miscarriages.
The OP No.1 has stated that for the first time she was discharged after conservative treatment in March, 2001 and second time when she was readmitted in April, 2001 and confined to bed as per his advice treated conservatively with medicines only to save the mother and the child, but ultimately on 04/06/01 due to most probably amniotic fluid embolism she expired after two successive operations, namely, caessarian section and total hysterectomy.
The OP No.1 has stated in cross examination that due to less foetal movement, less liquor, Sriparna being a patient of hypothyroidism, blood pressure and gestational diabetis and all these ailments were being combated only to save the mother and the child keeping the mother in constant bed rest according to his written advice. It has further been stated that initially they tried to locate the FHS with Doppler, but there was a confusion regarding funic, souffl intermingling uterine souffl and FHS; FHS could not be segregated by Doppler Examination; there was no delay on his part, but by that time all the USG Centres near Lake Town Nursing Home were closed as per usual practice and were to open in the evening. It has further been stated that after trying various USG Centres requesting them to have an urgent USG of Sriparna on 04/06/01 and after being refused, he was compelled to request personally over telephone Dr. C. C. Mondal, Ultrasonologist who had done the USG of the said patient and Dr. Mondal agreed to open his USG Centre. It has been stated that accordingly the husband of the patient arranged to take the patient to Dr. Mondals chamber by taxi, since portable USG machine was not available in 2001in Lake Town. The OP No.1 has stated that he acted in good faith only to save the mother and the child.
The OP No.1 has stated that no report of USG was sent to them before caessarian section; only over telephone the Ultrasonologist informed him that he was trying with Doppler to locate FHS in order to ascertain the condition of the foetus; moreover Dr. Mondal did not even take the film while conducting such USG which is mandatory for the Ultrasonologist; a hand written chit of Dr. Mondal reached their hands which was suggestive of Intra Uterine Foetal Death; but no conclusive documentary evidence was provided by the Ultrasonologist.
We have heard the submissions made by both sides and perused the evidence on record.
The main contention of the complainant is that (1) inspite of complaint of no foetal movement on 01/06/01 the OP No.1 took a much delayed decision of USG on 04/06/01 when the USG clinics in the vicinity were closed only with a view to referring the patient to OP No.3. (2) the OP No.1 inspite of established medical norms and procedures in such a case of pregnancy with fibroids etc., as per medical literature ought not to have undertaken the caessarian section followed by myomectomy and hysterectomy.
It is contended that as per medical literature there would be profuse bleeding if caessarian section is undertaken and, as such, the same has not been recommended. It is also contended by the complainant that the OP No.1 could have taken recourse to other methods instead of undertaking caessarian section. (3) the OP No.1 asked for supply of blood at the time of caessarian section which was not in accordance with the established medical practice and procedure.
It is in the W.V. of OP No.1 that on 17 April, 2001 she developed premature rupture of membranes and, subsequently, the pregnancy continued with conservative treatment. It is also in the W.V. that the patient complained of less foetal movement off and on and it was a frequent phenomenon and the OP No.1 examined her including Doppler Examination for getting FHS. The Learned Counsel for the OP No.1 in this connection has submitted that the patient had the mania of complaining no foetal movement.
It is in the evidence of OP No.1 that on 04/06/01 he was informed of the seriousness of Sriparna Thakur and he reached the Lake Town Nursing Home within the shortest possible time. In the W.V. it has also been averred that on 04/06/01 he received the telephonic call from the sister on duty of the Nursing Home who informed him that the patient was feeling some unusual movement of foetus and immediately he rushed to the Nursing Home at about 11.30 a.m. It has further been stated in the W.V. that he examined the patient very carefully and found that there was some confusion about the FHS as the patient had some tachycardia.
It is clear that previously there was rupture of membranes and on 01/06/01 there was complaint of no foetal movement. It is evident that the OP No.1 advised USG on 04/06/01 at about 2.30 p.m. It is also clear that in the said Nursing Home there was no portable USG machine and the USG clinics in the vicinity were all closed by that time. From the treatment sheet it is clear that the patient was under bed rest and inspite of that the patient party had to take the patient by taxi to OP No.3 for USG. It is in the W.V. of OP No.1 that a decision was taken for urgent USG for foetal profile and finding no USG clinic open in the vicinity, he then contacted OP No.3 who had done previous two USG and the OP No.3 agreed to open his clinic and performed the USG on emergency basis. It is thus clear that the OP No.1 requested OP No.3 to perform the USG of the patient on emergency basis. So the contention of the OP No.1 that the patient party had gone to the USG clinic of OP No.3 on their own choice, is not acceptable.
On this point of belated advice for USG we find that the decision of OP No.1 for USG and referring the patient party around 2.30 p.m. clearly shows lack of due care. It is evident that it was a case of pregnancy with various complications and for special care the patient was admitted under the care of OP No.1.
Sufficient care and caution ought to have been taken by the OP No.1. The lack of due care in the matter of belated advice for USG is apparent on the face of record.
The next point as to the decision for caessarian section followed by myomectomy and hysterectomy, it is the contention of the complainant that the caessarian section ought not to have been undertaken.
The complainant has submitted some medical literature from which it would appear that myomectomy/ hysterectomy in such a case was not recommended. The Learned Counsel for the OP No.1 on this point has relied on the same literature produced by the complainant and submitted that from the same literature a contrary view can also be seen. On this point the contention of the OP No.1 as appearing from his W.V. and his evidence is that he was compelled to take decision for caessarian section followed by myomectomy and total hysterectomy as the foetus was coming on the wound line and he did it to save the life of the patient.
The Learned Counsel for the OP No.1 has submitted that the complainant has not produced the expert evidence. In the decision reported in (2010) 3 WBLR SC 470 [V. Kishan Rao vs. Nikhil Super Speciality Hospital and Anr.] it has been held that expert evidence in every case is not necessary. In the instant case on the point of undertaking caessarian section followed by myomencomy and hysterectomy depending upon the circumstances of the case, we are of the considered view that in absence of the expert opinion, it cannot be said that there was lack of due care and that there was negligence on the part of OP No.1 in undertaking caessarian section followed by total hysterectomy.
As regards the requisition for blood it is in evidence that the requisition was handed over to the patient party at the time of operation. It was known to the OP No.1 that it was a case of pregnancy with fibroid and various other complications. In such a case asking the patient party at the time of operation to arrange for blood is evidently a case of lack of due care. Negligence, therefore, is apparent on the face of the record.
In view of the above we hold that the OP No.1 was negligent on the point of belated advice of USG and belated requisition for blood at the time of operation. The OP No.1, therefore, is liable to pay compensation to the complainants.
Having regard to the loss of lives suffered and the mental agony and harassment caused to the complainants, we are of the considered view that ends of justice will be met if the OP No.1 is directed to pay Rs.5 lakh and cost of litigation of Rs.5,000/- to the complainants.
As regards the OP No.2 it appears that on earlier occasions the patient was admitted in the same Nursing Home and there was no allegation against OP No.2. The patient was admitted for the second time in the same Nursing Home knowing fully well about the facilities available there. We have gone through the evidence on record and we do not find any cogent material from which it can be said that the OP No.2 was negligent in any way in the discharge of its duties. The case of the complainant, therefore, fails as against OP No.2.
As regards OP No.3, the Sonologist, it is the case of the complainant that after performing the USG the Sonologist gave a hand written report stating IUD and the typed report was not delivered to them at that point of time. It is also the contention of the complainant that the USG film was not taken and on this point he has produced a copy of the USG report along with BNA. From the typed copy of the report dated 04/06/01 it is clear that no USG film was taken. It is the contention of OP No.3 as made in Paragraph-5(h) of the W.V. that diagnosis by USG is always done from moving images on the monitor, then the doctors select the images and freeze them on the screen and take photograph on the films as samples. It has further been stated that in the screening cases films are not taken but frozen images data are noted in papers which is served as report. But in the instant case we find that OP No.1 advised USG and he has stated in his evidence that taking of USG films is mandatory. Moreover in the typed report the OP No.3 did not assign any reason for not taking the USG film. Such being the position, we find that there was deficiency in service on the part of OP No.3 in not taking USG film. The OP No.3 is, therefore, liable to pay compensation to the complainants.
Having regard to the nature and extent of deficiency in service we are of the considered opinion that ends of justice will be met if the OP No.3 is directed to pay compensation of Rs.20,000/- and cost of litigation of Rs.1,000/- to the complainants.
The Learned Counsel for the OP No.1 has submitted that the husband of the patient did not come forward to file evidence and the elder brother of the deceased is not entitled to file the complaint on behalf of the husband of the deceased on the basis of power of attorney. This point was not taken earlier, not even raised before the Honble High Court in connection with the revisional application.
We are of the considered view that this objection raised by the Learned Counsel for the OP No.1 is not acceptable, especially in a case under the Consumer Protection Act.
In the result, the complaint is allowed in part.
The OP No.1 is directed to pay compensation of Rs.5 lakh and cost of litigation of Rs.5,000/- to the complainants within 45 days failing which the amount will carry interest @ 9% per annum till realization.
The OP No.3 is directed to pay compensation of Rs.20,000/- to the complainants and cost of litigation of Rs.1,000/- to the complainants within 45 days from this date failing which the amount will carry interest @ 9% per annum till realization.
The complaint against OP No.2 stands dismissed without any order as to costs.
MEMBER(SC) MEMBER(L) PRESIDENT