State Consumer Disputes Redressal Commission
Subhasis Sarkar vs Dr. Suchitra Mukherjee on 23 March, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/181/2012 1. Subhasis Sarkar Ulberia Station Road, Uluberia, Howrah. ...........Complainant(s) Versus 1. Dr. Suchitra Mukherjee Panpur More, Jadurberia, Ulberia, Howrah - 711 316. 2. Sanjiban Hospital Fuleswar, Howrah, P.O. - Sijberai, P.S. - Uluberia, Howrah - 711 316. 3. Dr. Mallika Dutta, Consultant Sanjiban Hospital Fuleswar, Howrah, P.O. - Sijberai, P.S. - Uluberia, Howrah - 711 316. 4. Dr. Bhaskar Paul, Consultant Sanjiban Hospital Fuleswar, Howrah, P.O. - Sijberai, P.S. - Uluberia, Howrah - 711 316. 5. Dr. Madhusudan Saha, Consultant Sanjiban Hospital. Fuleswar, Howrah, P.O. - Sijberai, P.S. - Uluberia, Howrah - 711 316. 6. Dr. Sourav Chawdhury, Consultant Sanjiban Hospital. Fuleswar, Howrah, P.O. - Sijberai, P.S. - Uluberia, Howrah - 711 316. 7. Dr. Tonuka Das, Consultant Sanjiban Hospital. Fuleswar, Howrah, P.O. - Sijberai, P.S. - Uluberia, Howrah - 711 316. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Complainant: Mr. Abhik Das Mrs Koyeli Mukhopadhyay , Advocate For the Opp. Party: Ms. Binota Roy, Mr. Prithvijeet Majumder, Advocate Ms. Binota Roy, Advocate Ms. Binota Roy, Mr. Prithvijeet Majumder, Advocate Ms. Binota Roy, Advocate Ms. Binota Roy, Advocate Ms. Binota Roy, Advocate Ms. Binota Roy, Mr. Prithvijeet Majumder, Advocate Dated : 23 Mar 2018 Final Order / Judgement HON'BLE MR. TARAPADA GANGOPADHYAY, MEMBER
This Complaint u/s 17 (1)(a)(i) of the Consumer Protection Act, 1986 is directed by the Complainant, being the husband of the patient concerned, against the OPs on the ground of medical negligence on behalf of the OPs with prayer for refund of Rs. 32,524/- being the medical expenses involved and also for awarding compensation for harassment, mental agony and loss of life of the patient concerned.
The brief facts of the case, as emanating from the materials on records, are that the Complainant took his pregnant wife to the OP No. 1-Doctor, hereinafter referred to as 'the OP No. 1' on 1.8.2012 with complaint of abdominal pain when the OP No. 1-Doctor without noting any other clinical symptom except "UT/28W" prescribed medicines of Iron Tonic, calcium and anti-biotic as averred in the Petition of Complaint. After follow-up of the said prescribed medicines when the abdominal pain of the patient aggravated, the OP No. 1 being out of station advised for taking the patient to OP No. 2-Hospital, hereinafter referred to as 'the OP No. 2' on 5.8.2012 at about 12.10 A.M. where the patient was examined in Emergency and advised for consulting OP No. 3-Doctor, hereinafter referred to as 'the OP No. 3'. Thereafter, the patient was admitted to OP No. 2 for further evaluation and the OP No. 3 allegedly stopped seeing the patient and then the patient was placed under the OP No. 4-Doctor, hereinafter referred to as 'the OP No. 4', who, diagnosing the patient as suffering from 'Oligohydroamnios' on the basis of USG report, started artificial labour process as revealed from the Petition of Complaint. Thereupon the Complainant repeatedly requested the treating doctor for performing caesarian section, but the treating doctors continued medicines for normal delivery despite the foetus was in breech position. On 7.8.2012 when the Complainant visited the patient he was informed that the OP No. 4 had left the hospital for his personal reason and the patient has been placed under the care of OP No. 5-Doctor, hereinafter referred to as 'the OP No. 5'. On the said day the Complainant was informed at about 3.00 P.M. that a 'still born male baby' was born although as per Sonography dated 6.8.2012 of the OP No. 2 the baby was alive before starting artificial labour induction. After delivery the patient was suffering from torrential bleeding, but the Ops did not arrange for blood transfusion. On 7.8.2012 at about 6.50 P.M. when the Complainant being asked to arrange for blood reached the OP No. 2, the Complainant was informed that the patient had expired due to PPH ĉ DTC. It is alleged in the Petition of Complaint that the patient along with the baby died for medical negligence and deficiency in service as well on the part of the OPs. With the aforesaid background, the Complainant moved the instant Complaint before this Commission.
The Ld. Advocate for the Complainant, filing BNA, submits that the medical negligence on behalf of the OPs are indicated from absence of necessary routine investigation, absence of noting of heart-rate of foetus in the treatment record concerned, administration of high dose, i.e. 200mg instead of 25 mg of medicine (Misoprost), absence of advice for emergency USG, non-supply of blood by the hospital concerned at the time of post-partum haemorrhage.
The Ld. Advocate also submits that the OP No. 1 being a doctor of ESI is not allowed for private practice and hence, the OP No. 1 violated the provision of Government Order in this respect.
The Ld. Advocate continues that the planned termination of pregnancy concerned requires as per MTP Act the consent of the patient, but in the instant case, no consent was taken from the patient, which indicates deficiency in service on behalf of the OPs.
The Ld. Advocate further submits that the informed consent concerned bearing no signature of the doctor concerned and the type of anaesthesia being not noted the deficiency in service on behalf of the doctor concerned is indicated.
The Ld. Advocate continues that the Death Certificate of the baby was not issued in proper form which also indicates deficiency in service on behalf of the OPs.
The Ld. Advocate concludes that in view of the aforesaid submission, the instant Complaint should be allowed and the compensation claimed be awarded considering the degree of damage, such as, death of both the mother and the baby, mental agony and harassment.
On the other hand, the Ld. Advocate for the OPs, filing BNA, submits that the patient concerned was treated in accordance with the standard treatment protocol concerned and hence, there is no medical negligence on behalf of the OPs.
The Ld. Advocate continues that the foetus concerned being of 24 weeks and the delivery at this stage being 'pre-term' the caesarian section, as the Complainant had insisted upon, was not desirable as is indicated by observation to the effect "....an operative procedure whereby the fetuses after the end of 28th week are delivered through an incision on the abdominal and uterine walls" in the Text Book of Obstetrics, 7th Edition, by D.C.Dutta.
The Ld. Advocate adds that as the foetus concerned being less than 210 days is not viable and not at deliverable stage, so the caesarian section in the case on hand was not desirable.
The Ld. Advocate continues that as the patient concerned was suffering from infection, inflammation of the fetal membrane, Chorioamnionitis, ruptured membrane with no liquor in the placental sac from the pre-admission period, so the patient faced spontaneous abortion. For this reason, MTP was not required.
The Ld. Advocate also submits that the dose of "Misoprost 200mg vaginally initially 4- hourly' which was administered for induction of the labour, was as per standard protocol of the application of the same as evident from the copy of "Pharmaco Therapeutic and Obstetrics", a copy of which is available on records.
The Ld. Advocate continues that the OPs took standard care in tackling post-partum haemorrhage (PPH).
The Ld. Advocate also submits that the patient party was requested for arranging blood at the time of emergency and that it is not mandatory for every clinical establishment to have their own arrangement for blood for all types of patients.
The Ld. Advocate adds that in case of still birth, as in the case on hand, it is not possible to mention the date of delivery and the time of birth as there is no such provision in the Death Certificate.
The Ld. Advocate further submits that the OP No. 1 is not a regular permanent doctor of ESI as is evident from the certificate dated 28.9.2013 of AMO, ESI (M.B.) Scheme, Government of West Bengal and that the OP No. 1 being a teacher of WB(MES), as is evident from the Notification No. HF/O/ MA(MES/3363/z-33/06 dated 30.9.2008, is allowed to engage in private practice and hence, there is no illegality as alleged in treating the patient concerned by the OP-Doctor.
The Ld. Advocate finally submits that as the patient was suffering from infection with no liquor in placental sac and the foetus was premature and in critical condition, so in such a case under the challenging situation success of treatment cannot be guaranteed as is well settled.
The Ld. Advocate concludes that the foregoing submissions clearly indicate that the OPs-Doctors rendered standard treatment to save the life of the patient and the baby concerned despite critical condition of the patient and premature delivery of the baby and hence, there being no medical negligence on the part of the OPs the instant Complaint Case should be dismissed.
Heard both the sides, considered their respective submission and perused the materials on records.
The prescription dated 1.8.2012 of the OP No. 1 reveals no clinical symptom of patient concerned except "UT - 28W" instead of 24 weeks as per USG report dated 6.8.2012. In the said prescription there is no mention of LMP, existing infection of the patient concerned and breech position of the foetus which are essential for proper treatment of the patient concerned as per standard treatment protocol in respect of the treatment in question.
The copy of the Publication "Chapter 21, Pre-partum Labour, PROM, Post-maturity IUD" as available on records reveals 'pre-term foetus before 34 weeks presented by breech are generally delivered by caesarean section' though in the instant case the foetus being 24 weeks caesarian section was not done, which clearly indicates that despite the requirement of caesarian section in the case on hand to save the life of the mother and the baby the doctors concerned did not adopt the life-saving caesarian section.
The Progress Report bearing No. PRN-AR/579 of the OP No. 2, as available on records, reveals the plan for termination of pregnancy by the OP No. 3, but no reason for such plan was noted in the prescription concerned.
The Progress Report dated 8.8.2012 of the OP No. 2 reveals that the patient was succumbed to death for breech extraction on 7.8.2012 due to "Irreversible shock in a case of primary PPH ĉ DIC". It is revealed from the copy of the Publication of Carrie Ann Labelle, MD and Craig S.Kitchens, MD, as available on records, - "DIC is caused by tissue destruction and subsequent release of tissue factor and other cytokines".
The treatment records, as available, do not reveal that the patient was suffering from PPH and DIC from the time before the treatment by the OPs started and hence, the same developed in course of treatment by the OPs, which indicates the absence of reasonable, skillful and proper care on behalf of the OPs.
The foregoing discussions clearly indicate that three essential components of medical negligence, i.e. 'duty', 'breach' and 'resultant damage' as was observed by the Hon'ble Supreme Court at Para-10 of the judgment in Jacob Mathew Vs. State of Punjab & Anr., reported in AIR 2005 Supreme Court 3180, are present in the case on hand.
The OP No. 2 is also vicariously liable for its failure to ensure proper care by the doctors engaged with it for proper medical treatment as was held by the Hon'ble Supreme Court in Savita Garg Vs. National Heart Institute, reported in 2014 (4) 258 (SC).
Consequently, the instant Complaint is allowed and the OP Nos. 1 and 3 to 7 are directed to pay jointly or severally, within 45 days from the date of the order, to the Complainant Rs. 3,00,000/- each as compensation and the OP No. 2 Rs. 1,00,000/- as compensation and Rs. 32,524/- being the cost of treatment as refund, failing which the OPs will be liable to pay interest @ 9% per annum on the said amounts to the Complainant for the entire period of default. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER