State Consumer Disputes Redressal Commission
Smt. Usha Das vs Apollo Gleneagles Hospital on 8 December, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/166/2014 ( Date of Filing : 15 May 2014 ) 1. Smt. Usha Das W/o Late Jananendra Nath Das, 2/1, Selimpur Lane, Dhakuria, P.S. Garpha, Kolkata-700 037.. 2. Sri Susanta Kumar Das S/o Late Jananendra Nath Das, 2/1, Selimpur Lane, Dhakuria, P.S. Garpha, Kolkata-700 037. 3. Sri Jayanta Kumar Das S/o Late Jananendra Nath Das, 2/1, Selimpur Lane, Dhakuria, P.S. Garpha, Kolkata-700 037. ...........Complainant(s) Versus 1. Apollo Gleneagles Hospital Represented by its Managing Director, 58, Canal Circular Road, Kolkata -700 054. 2. Mr. Sandipan Banerjee, A administrative staff of Apollo Gleneagles Hospital 58, Canal Circular Road, Kolkata -700 054. 3. Mrs. Suchetana Dhank(Sil), A administrative staff of Apollo Gleneagles Hospital 58, Canal Circular Road, Kolkata - 700 054. 4. B.P. Poddar Hospital & Medical Research Represented by its Managing Director, 71/1, Humayun Kabir Sarani, New Alipore, Block-G, Kolkata - 700 053. 5. Dr. Basujit Gangopadhyay, A Cardiologist & Consultant Physician, Emergency Department, B.P. Poddar Hospital & Medical Research 71/1, Humayun Kabir Sarani, New Alipore, Block-G, Kolkata - 700 053. 6. Dr. Goutam Mukherjee, the Marketing Manager, previously The Commercial Manager, B.P. Poddar Hospital & Medical Research 71/1, Humayun Kabir Sarani, New Alipore, Block-G, Kolkata - 700 053. 7. Cure Centre Nursing Home Represented by its R M O, 377/3, Prince Anwar Shah Road, Kolkata -700 068. 8. Dr. Deb Kumar Mitra, A General Physician of Cure Centre Nursing Home 377/3, Prince Anwar Shah Road, Kolkata -700 068. 9. Dafodil Hospitals Represented by its R M O, 276, Canal Street, Kolkata - 700 048. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER PRESENT: Mr. Gouranga Gupta Roy Mrs. Mousumu Chakraborty , Advocate for the Complainant 1 Mr. Prabir Basu, Advocate for the Opp. Party 1 Mr. Barun Prasad, Advocate for the Opp. Party 1 Mr. Barun Prasad, Advocate for the Opp. Party 1 Mr. Barun Prasad, Advocate for the Opp. Party 1 Mr. Barun Prasad, Advocate for the Opp. Party 1 Dated : 08 Dec 2022 Final Order / Judgement
HON'BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT By this complaint case, the complainants Smt. Usha Das, Sri Susanta Kumar Das and Sri Jayanta Kumar Das who are the legal heirs of Late Jananendra Nath Das who died on 21/06/2012 in the Nursing Home namely Dafodil Hospitals (P) Ltd., claiming the following reliefs : -
"(a) An order directing the opposite party Nos. 1 to 9 refund the medical bill/ charge (including hospitalization, treatment and medicine) of Rs.45,000/- of the said patient ;
(b) An order directing the opposite party Nos. 1 to 9 to pay compensation for Rs.40,00,000/- for inconvenience, mental agony and harassment caused to the complainants due to death of the patient by negligent treatment by Doctors and medical staffs of opposite parties;
(c ) Cost of Rs.5,00,000/- for litigations and
(d) Any other relief or reliefs to which the complainants are entitled to law and equity."
The brief facts of the case are that complainants are the middle-class persons. Deceased Jananendra Nath Das was a retired central government employee and his monthly pension was the only source of income for his family. Deceased Jananendra Nath Das was a CGHS card holder and he was under the coverage of CGHS network hospitals.
Further case of the complainants is that the opposite party Nos. 1,4,7 & 9 are super specialty hospital and Nursing Home. The set-up of opposite party are of private hospitals for providing and / or rendering various types of advanced medical treatments, facilities and services by the renowned doctors and professors to the patients, which includes emergency services though at a very high cost. The said hospitals and Nursing Homes are represented through their Managing Directors and Resident Medical Officer (RMO). The opposite party Nos. 2 & 3 are the administrative staffs of the opposite party No. 1. The opposite party Nos. 5 & 6 are renowned doctors and Marketing Manager respectively of the opposite party No. 4 hospital. The opposite party No. 8 is the renowned doctor of the opposite party No. 7 Nursing Home.
Further case of the complainants is that deceased Jananendra Nath Das during his lifetime was treated for his cardiac ailment and pacemaker was implanted at Apollo Gleneagles Hospital under Dr. Aftab Khan in the month of March, 2012. At the time of discharge from the Apollo Gleneagles Hospital, Dr. Aftab Khan advised the patient to visit the Hosptial and accordingly, deceased visited the said hospital on 11/05/2012 and was examined by the said Dr. Aftab Khan. On physical examination / check-up by the said Dr. Aftab Khan, the patient was advised to consult with Dr. Abhijit Tarafdar, a consultant nephrologist of the said hospital i.e. opposite party No. 1. On 11/05/2012 on examination, Dr. Tarafdar advised for USG of both whole abdomen including renal protein test (RP II Test) of the deceased Jananendra Nath Das. All tests were done under authorization of CGHS on 21/05/2012, 02/06/2012 & 03/06/2012.
Further case of the complainants is that deceased Jananendra Nath Das suddenly became seriously ill and developed a continuous vomiting tendency on 06/06/2012. The complainants immediately on the very next day i.e. on 07/06/2012 in the morning admitted the patient, Jananendra Nath Das at Apollo Gleneagles Hospital in emergency department. Dr. Maity who attended the patient at emergency department started treatment of him i.e. nebulisation therapy. After one hour, Dr. Aftab Khan came and checked the pacemaker position and the said pacemaker position was very well. Dr. Khan also advised the complainants No. 2 & 3 to wait for Dr. Abhijit Tarafdar, consultant nephrologists because it was a case of renal disease. Dr. Khan further expressed his inability to the complainants that he was very sorry because the management of the said hospital would not allow him to treat the patient. In the meantime, Dr. Maity, the attending doctor of emergency department of the said hospital advised the complainants for immediate admission of the patient at ICU. The complainants immediately contacted with the Administrative Department and communicated the said situation including Dr. Maity's advice to the administrative staffs of opposite party No. 1 namely Mr. Sandipan Banerjee and Mrs. Suchetana Dhank (Sil) i.e. opposite party No. 2 & 3 to take proper steps in this regard. The said patient was under treatment of Dr. Abhijit Tarafdar, consultant nephrologist who also issued memo to admit the patient at ICU. The complainants showed the letter of Dr. Abhijit Tarafdar to corporate desk but the said administrative staffs told the complainants that it was not a life threatening question, so they can remove their patient and admit to another hospital. The opposite party Nos. 2 & 3 arrogantly stated that it was not possible for them to give any medical services to the said patient. The complainants requested repeatedly to them to admit the patient as the condition of the patient was very critical and serious. The opposite party Nos. 2 & 3 turned down such requests and discharged the patient from the hospital.
Further case of the complainants is that the complainants contacted with the authorities of the CGHS i.e. Mr. Amitabha Banerjee and CMO Mrs. Nupur Roy of CGHS dispensary of Lake area. Mrs. Nupur Roy over phone told the complainants to go to B. P. Poddar Hospital and Medical Research Ltd. who was also under CGHS scheme. The complainants immediately rushed to emergency department of B. P. Poddar Hospital and Medical Research Ltd. with the said critical patient. At the emergency department of B. P. Poddar Hospital and Medical Research Ltd., the complainants have shown their CGHS card, the attending doctor of emergency department instructed them to meet Mr. Goutam Mukherjee, the Commercial Manager, at present Marketing Manager for his approval and / or consent to admit the patient to the hospital. The complainants immediately met with said Mr. Goutam Mukherjee, Commercial Manager and requested him for admission of Jananendra Nath Das. The complainants undertook to fulfill all necessary formalities including reference letter from CGHS authorities after admission of the patient but all the efforts of the complainants were in vain due to adamant and inhuman attitude of said Mr. Goutam Mukherjee, Commercial Manager who refused to admit the patient without any reference letter from CGHS authorities. The Emergency Medical Officer of B. P. Poddar Hospital and Medical Research Ltd. issued a prescription in a very casual way and advised the complainants to take the said patient to home. Moreover, the Emergency Medical Officer of B P Poddar Hospital and Medical Research Ltd. also stated that the condition of the patient was not so critical.
Further case of the complainants is that in such a situation the complainants were compelled to take back the patient from B. P. Poddar Hospital and Medical Research Ltd. and admitted Janananda Nath Das in local Nursing Home namely Cure Centre Nursing Home under care and treatment of Dr. D. K. Mitra. There was no ICU or A.C. room in the said Nursing Home and the patient was admitted in General Ward. The said patient stayed there for 4 days, due to non availability of dialysis facilities. The condition of the patient gradually deteriorated. At that point of time, the complainants fortunately came in touch with an Urologist who after examining the said patient advised for immediate dialysis. According to his advice, the complainants admitted the patient at Dafodil Hospitals Pvt. Ltd. i.e. opposite party No. 9 and the patient was directly admitted in ICU where he was for 10 days. In spite of adopting all possible medical measures, the patient died on 21/06/2012. The death certificate issued by the attending doctor of Dadodil Hospitals Pvt. Ltd. has mentioned the cause of death as 'Kidney Failure'.
Further case of the complainants is that there was arbitrary, unethical and illegal refusal of a critical patient on 07/06/2012 by the opposite party No. 1, Apollo Gleneagles Hospital who had treated the patient only a fortnight ago. Thereafter, the opposite party No. 4 B. P. Poddar Hospital and Medical Research Ltd. also arbitrarily, unethically and illegally refused to admit the said patient in the said hospital on flimsy ground which amounts to unfair trade practice and serious medical negligence on the part of the said hospitals, though they are under CGHS network hospital management, to take care of CGS card holders. Delay caused his health condition continuous deterioration and at last he died.
Further case of the complainants is that the said patient Jananendra Nath Das died untimely on 21/06/2012 due to extreme carelessness and gross negligence of the opposite party Nos. 1 & 4 and their employees' gross negligence in providing proper medical care and services in time on their part. The complainants have lost husband and father who was the only earning member of their family due to extreme inhuman behaviour and wanton acts and deeds on the part of the opposite party Nos. 1 & 4 in refusing admission of such a serious patient.
Further case of the complainants is that the complainants requested through letters dated 24/04/2013 and 13/12/2013 to the opposite party No. 9 i.e. Dafodil Hospitals Pvt. Ltd. to provide all medical prescriptions, BED HEAD TICKET including treatment sheet of the said patient named Jananendra Nath Das, since deceased, during his stay in the hospital. But no initiative was taken by the opposite party No. 9 to provide such papers. After several requests, opposite party No. 9 only handed over some pathological test reports and duplicate death certificate of the deceased patient to the complainants.
Further case of the complainants is that the complainants watched the sufferings of Jananendra Nath Das but it could be avoided by the opposite party Nos. 1 to 8 by providing proper medical care and attendance which was required and / or necessary to save the life of such critical patient. The complainants had to incur expenses to the tune of Rs.35,000/- towards charges for hospitalization / pathological tests and medicine bills.
Further case of the complainants is that the opposite party hospitals and Nursing Homes along with their doctors and medical staffs were guilty of not providing proper and timely medical treatment and services to the said critical patient which caused his premature death.
Further case of the complainants is that the acts of the opposite party Nos. 1 to 9 regarding treatments of the deceased Jananendra Nath Das amounts to utter negligence and deficiency in service on the part of the opposite party Nos. 1 to 9. Hence, this complaint case.
The opposite party No. 1 Apollo Gleneagles Hospital entered appearance in this case and contested this case by filing written version denying all the material allegations as stated in the petition of complaint. The specific case of the opposite party No. 1 is that the patient was brought to the opposite party No. 1 hospital for emergency admission on 07/06/2012 and doctors at emergency department upon examination of the patient duly noted the plan of treatment and subsequent thereto the patient was being looked after by expert doctor and as per doctor's advice, the patient was supposed to admit at ICU / RP II safety profile with I.V. broad spectrum antibiotics also prescribed and referred to cardiology and pulmonology department but the patient party refused to provide initial normal expenses so given out by the administrative staff since the patient was under Central Government Health Scheme but the patient party did not provide the same and on the contrary asked for release of the patient for getting his admission in some other hospital. As a result of the same, the administrative staff and the doctors while clarifying the consequences about the patient not being hospitalized the patient, the patient party released the patient at their own risk upon putting their signature there where it has been categorically stated that "Doctor, staff, hospital shall not be responsible for any other consequences thereafter" the patient party obtained the release of the patient on 07/06/2012. After release from their hospital, the patient was taken to B. P. Poddar Hospital and Medical Research Ltd. and from there to Dafodil Hospitals Pvt. Ltd. The opposite party No. 1 hospital failed to provide proper treatment to the patient due to said release of the patient on executing risk bond by the patient party. In such a situation, no circumstances arose to blame the opposite party No. 1 by the patient party. Since, the details of treatment so provided by other hospital had not been provided to the opposite party No. 1, this opposite party No. 1 refrained from making any comments to the same. So, the opposite party No. 1 has prayed for dismissal of the case.
Notice upon the opposite party Nos. 2, 3 & 7 were duly served but the opposite party Nos. 2,3 & 7 did not contest the case by filing written version.
The opposite party Nos. 4 & 6 entered appearance in this case and contested the case by filing written version. The specific case of the opposite party Nos. 4 & 6 is that in emergency section, the hospital shall not refuse admission or demand an advance payment from the beneficiary or his family members and shall provide credit facility to the patient whether the patient is a servicing employee or a pensioner availing CGHS facilities, on production of a valid CGHS card and the hospital shall submit the bill for reimbursement to the concerned department / Ministry / CGHS. The refusal to provide the treatment to bonafide CGHS beneficiaries in emergency cases without valid ground would attract disqualification for continuation of empanelment.
Further case of the opposite party Nos. 4 & 6 is that some ailments may be treated as emergency which is illustrative only and not exhaustive, depending on the condition of the patient. According to the emergency admission protocol for CGHS patient, the patient Mr. Jananendra Nath Das was not in that critical condition for emergency admission under C.G.H.S. No such thorough treatment has been conducted in the hospital as after immediate monitoring and attendance the patient party decided to refer the patient to some other institution and, accordingly, taken back the patient at their own. Practically, the patient was at the hospital for a few minutes, not for a few hours. Therefore, no question of any further treatment or negligence in treatment will arise.
Further case of the opposite party Nos. 4 & 6 is that Dr. Basujit Gangopadhyay was not associated with the treatment procedure of said Jananendra Nath Das in the emergency department of the hospital. Mr. Goutam Mukherjee is neither the Marketing Manager, nor the Commercial Manager of the hospital. Both the names have been unnecessarily impleaded in this complaint case. The complainants for illegal gain unnecessarily impleaded the opposite party Nos. 4 & 6 in this case. The opposite party Nos. 4 & 6 did not commit any fault, imperfection and deficiency in service in the matter. Therefore, the opposite party Nos. 4 & 6 are not liable for cost and compensation so claimed by the complainants.
Opposite party No. 5 is Dr. Basujit Gangapadhyay who was contesting the case by filing written version. His specific case is that he never came into the contact with the patient or patient party nor had been ever contacted to get involved in the Treatment procedure of the patient. The patient was not admitted at B.P. Poddar Hospital & Medical Research Ltd. The patient was brought at the emergency department of B.P. Poddar Hospital and Medical Research Ltd. He has been unnecessarily impleaded as party in this case. So, he has prayed for expunging his name from the complaint.
Dr. Debkumar Mitra as referred to opposite party No. 8 entered appearance in this case and contested the case by filing written version denying the material allegations as mentioned in the consumer complaint. His specific case is that the patient namely Jananendra Nath Das was taken to Cure Centre Nursing Home being refused to be get admitted in B. P. Poddar Hospital and Medical Research Ltd. This opposite party No. 8 has been working for gain under contractual obligation as general physician. Thus under the request of the patient party, the patient got admitted on 07/06/2012 at 2.00 p.m. under the chief complaint of respiratory distress and cough since 3-4 days. Though the said patient was admitted under opposite party No. 8, but the opposite party No. 8 was having no part to play and considering the facilities available therein, the patient party got the said patient admitted in general ward and accordingly this opposite party No. 8 being a general physician has rendered best possible medical treatment to the patient by observing all prevailing norms and the same would be evident from the BED HEAD TICKET of the said patient. Considering the discomfort so suffered by the patient, the patient was referred to a competent nephrologist by this opposite party No. 8 and under the advice of such nephrologist, the said patient party had decided to get said patient discharged from the said Nursing Home namely Cure Centre Nursing Home so that the patient may get admitted to any other Nursing Home where there is facilities of necessary treatment of nephrology related diseases and accordingly, the said patient got discharged on 11/06/2012 from the said Cure Centre Nursing Home.
Further case of the opposite party No. 8 is that during the stay of the patient in the said Nursing Home at any point of time, the patient party or the patient did not raise any complaint or allegation against the Cure Centre Nursing Home or their doctors. Rather, at the time of discharge, the patient party had openly praised this opposite party No. 8 for rendering best possible medical service to the patient. Hence, the opposite party No. 8 has prayed for dismissal of the complaint case.
Dafodil Hospitals Pvt. Ltd. hereinafter as referred to opposite party No. 9 entered appearance in this case and contested the case by filing written version denying the material allegations as mentioned in the complaint. The specific case of the Dafodil Hospitals Pvt. Ltd. is that the patient was 83 years old male patient who was admitted in Dafodil Hospitals Pvt. Ltd. on 11/06/2012 after getting discharged on risk bond from Cure Centre Nursing Home. The condition of the patient during admission on 11/06/2012 was very critical with diagnosis which was given from Cure Centre Nursing Home as 'pleural effusion with chronic renal disease' where conservative treatment was given.
Further case of the opposite party No. 9 is that when the patient came to their facility, his prognosis was already guarded and this was informed to the patient party and they were aware of the facts that the patient was in a very critical state. They managed the patient conservatively with dialysis IV antibiotics, nebulisation, pleural tapping, but later the patient developed thrombocytopenia and sepsis and ultimately died on 21/06/2012 at 12.20 a.m. due to acute cardio pulmonary failure in a case of sepsis, septic shock with multi organ dysfunction syndrome (MODS) in a background on HTN & CKD.
Further case of the opposite party No. 9 is that the patient had been moving hospital to hospital seeking medical help from Apollo Gleneagles Hospital to B P Poddar Hospital and Medical Research Ltd. , then to Cure Centre Nursing Home where he stayed for 4 days without dialysis. Due to this condition, patient got deteriorated and his life was threatening. They received the patient in a very critical condition and the patient was suffering from end stage, renal disease, sepsis, pleural effusion with high blood urea and creatinine and the patient left against medical advice from the Cure Centre Nursing Home. The patient got admitted in Dafodil Hospitals Pvt. Ltd. on 11/06/2012 at 6.30 p.m. The Dafodil Hospitals Pvt. Ltd. is a multi disciplinary hospital with fully equipped medical equipments and the strong medical management team had given full medical support to save the life of this critical patient. They showed no medical negligence as they admitted the risk bond patient, which no other hospital had showed. Thus the opposite party No. 9 has prayed for dismissal of the complaint case.
Both the parties have filed their respective evidence on affidavit, exchanged interrogatories and also filed brief notes of arguments.
Upon hearing both sides and on perusal of the pleadings of both sides, the following issues were framed from proper adjudication of the case.
ISSUES
(i) Is the consumer case maintainable ?
(ii) Is the complaint case bad for defect of parties ?
(iii) Are the opposite parties guilty of negligence and deficiency in service as alleged by the complainants ?
(iv) Are the complainants entitled to get any relief / or reliefs as prayed for ?
DECISIONS WITH REASONS Issue No. 1 This issue is taken up first for consideration.
This issue has not been pressed by the Learned Lawyers appearing for the parties at the time of hearing arguments. Moreover, we find nothing in the act and also in the file to hold that the case is not maintainable in its present form.
So, this issue is decided in favour of the complainants and against the opposite parties.
Issue No. 2This issue is taken up for consideration.
Learned Lawyer appearing for the complainants has urged that the complaint case is not bad for defect of parties. So, the complaint case should be allowed. On the contrary, Learned Advocate appearing for the opposite party Nos. 1 & 3 and opposite party Nos. 4,5,6 & 9 have urged that the complaint case is bad for defect of parties.
Having heard the Learned Advocates of the respective parties and on perusal of the record, it appears to us that there are substance in the submissions as made by the Learned Advocate appearing for the opposite party Nos. 1 & 3 and opposite party Nos. 4,5,6 & 7.
Page 18 to 21 i.e. Annexure C,D & E to the petition of complaint case speak that ultrasonography of whole abdomen and other investigations of the said patient were done at Medinova Diagnostics Services but the said Medinova Diagnostics Services has not been made party in this case.
Annexure 'P' to the petition of complaint ( page 89) is the copy of letter issued by Advocate Sampurna Ghosh addressed to Mrs. Mousumi Chakraborty, Advocate which shows that there was no doctor named S.C. Kothari in the emergency department or in other department in B. P. Poddar Hospital and Medical Research Ltd. The said document also discloses that there is no Doctor named Mr. Goutam Banerjee in B. P. Poddar Hospital and Medical Research Ltd. and nobody named as Goutam Banerjee is there as Commercial Manager in the said hospital. Annexure 'Q' to the petition of complaint ( page 92) is another copy of letter issued by Mr. Avik Kumar Das, Advocate which discloses that Dr. Basujit Gangopadhyay, Cardiologist in B. P. Poddar Hospital and Medical Research Ltd. was not the 'on call cardiologist' on that day and as such can never be in the emergency department of the hospital and Dr. Gangopadhyay never attended patient in the emergency wing of the B P Poddar Hospital and Medical Research Ltd. Therefore, on consideration of Annexure 'P' and Annexure 'Q' to the petition of complaint we may conclude that Dr. Basujit Gangopadhyay, Dr. S.C. Kothari and Mr. Goutam Banerjee are not proper and /or necessary party in this case and in spite of that they were impleaded in this case as opposite parties.
In the petition of complaint in para 5, the complainants have clearly and categorically stated that the complainants contacted with the concerned authorities of CGHS i.e. Mr. Amitabha Banerjee and CMO Mrs. Nupur Roy of CGHS dispensary of Lake area. Mrs. Nupur Roy over phone told the complainants to go to B. P. Poddar Hospital and Medical Research Ltd. and informed that the said hospital was also under CGHS scheme. The complainants immediately rushed to the emergency department of B. P. Poddar Hospital and Medical Research Ltd. with the said critical patient. The authorities of CGHS was a necessary party and they were not made party in this complaint case. In Raj Kumar Mishra Vs. O P Awas Evam Vikas Parishad reported in 2015 (2) CPR 202 (National Commission) the Hon'ble National Commission has observed that complaint deserves dismissal due to non joinder of a necessary party.
Under this facts and circumstances and on consideration of the materials on record, it appears to us that the complaint case is bad for mis joinder and non joinder of necessary parties.
This issues is thus decided in favour of the opposite parties and against the complainants.
Issues Nos. 3 & 4These two issues are taken up together for consideration for the sake of brevity and their inter-relatedness.
Learned Advocate appearing for the complainants has urged that the complainants have been able to prove the complaint case. So, the complaint case should be allowed. In support of his argument he has relied upon the decisions reported in II (2005) CPJ 35 NC and 1989 AIR 2039.
On the other hand, Learned Advocates appearing for the opposite parties have urged that the complainants have totally failed to prove the case. They have further urged that there was no negligence and / or deficiency in service on the part of the opposite parties. So, the complainants are not entitled to get any compensation and the complaint case should be dismissed with exemplary cost.
Having heard the Learned Advocates appearing for both the sides and on perusal of the materials on record, we find that it is admitted position that the deceased Jananendra Nath Das was a retired Central Government employee and his monthly pension was the only source of income for his family. It is also an admitted position that the opposite party Nos. 1,4,7 & 9 are super specialty hospitals and Nursing Homes. It is also an admitted position that the deceased Jananendra Nath Das was a senior citizen and he is a CGHS card holder. It is also an admitted position that Jananendra Nath Das during his lifetime was treated for his cardiac ailment and pacemaker was implanted at Apollo Gleneagles Hospital i.e. opposite party No. 1 under Dr. Aftab Khan in the month of March, 2012. It is also an admitted position that Jananendra Nath Das became seriously ill and developed a continuous vomiting tendency on 06/06/2012. It is also an admitted position that the complainants immediately on the very next day i.e. on 07/06/2012 in the morning admitted Jananendra Nath Das at Apollo Gleneagles Hospital in emergency department and said Jananendra Nath Das was treated in the emergency Department.
Now, we shall have to consider as to whether there was any negligence and deficiency in service on the part of opposite party Nos. 1 to 9.
To prove the case the complainant No. 1 Smt. Usha Das has filed an evidence on affidavit and the complainants have filed Xerox copy of CGHS card, Xerox copy of discharge record of the patient, Xerox copy of prescriptions, copy of bills, copy of reports of emergency admission ( page 24 & 25) issued by the Apollo Gleneagles Hospital. They have also filed copy of prescriptions ( page 26) issued by the B. P. Poddar Hospital & Medical Research Ltd., copy of discharge certificate issued by the Cure Centre Nursing Home (page 27), copies of reports ( page 29 to 37) issued by the Dafodil Hospitals Pvt. Ltd.
Annexure 'F' series are the copies of emergency admission dated 07/06/2012 (page 23 to 25) which disclose that on 07/06/2012 Jananendra Nath Das, since deceased, was brought in the emergency department of Apollo Gleneagles Hospital and he was primarily treated there. These documents also disclose that after examination by Dr. in the emergency department, the Dr. advised that the patient was supposed to admit at ICU / RP-II safety profile with I.V. broad spectrum antibiotics cardiology and pulmonology department. These documents also disclose that the patient party refused to admit the patient in Apollo Gleneagles Hospital and the patient party asked for release of the patient for getting his admission in some other hospital. The administrative staff and the doctors while clarifying the consequences about the patient not being hospitalized, the patient party took release of the patient at their own risk upon putting their signatures thereat where it has been categorically stated that the Doctor, staff, hospital shall not be responsible for any consequences thereafter" and obtained release of the patient on 07/06/2012.
Annexure 'G' to the petition of complaint (page 26) is the prescription issued by the B. P. Poddar Hospital and Medical Research Ltd. which shows that on 07/06/2012 the deceased was brought to emergency department of B. P. Poddar Hospital and Medical Research Ltd. and the medical officer attended the deceased Jananendra Nath Das and the B P Poddar Hospital and Medical Research Ltd. decided to refer the patient to some other institution and accordingly, the patient party had taken back the patient at their own. The said document also discloses that B. P. Poddar Hospital and Medical Research Ltd. referred the said patient to CGS Clinic as early as possible for further management. The said document also discloses that pulse and blood pressure of the said patient was more or less good.
Annexure 'H' to the petition of complaint ( page 27) is the discharge on risk bond certificate issued by the Cure Centre Nursing Home which speaks that the said patient was admitted in the said hospital on 07/06/2012 and was discharged on 11/06/2012. This document also shows that the said patient was discharged on risk bond from Cure Centre Nursing Home. The condition of the patient during admission on 11/06/2012 was very critical with diagnosis which was given from the Cure Centre Nursing Home. This document also shows that during stay in the Cure Centre Nursing Home, pleaural fluid aspirate was about 600 ml, and the patient received 2 units of blood but there was no dialysis facilities in the Cure Centre Nursing Home. As such, the Cure Centre Nursing Home transferred the patient to under Nephrologist in Centre where dialysis facilities are available.
Therefore, Annexure 'F', 'G' and 'H' to the petition of complaint clearly concluded that the patient was released on risk bond from the Hospitals and Nursing Homes and the said Hospital and Nursing Homes did not refuse to treat the patient medically.
Annexure 'J' to the petition of complaint ( Page 37) is the death certificate issued by the Dafodil Hospitals Pvt. Ltd. which discloses that the patient came to the Dafodil Hospitals Pvt. Ltd. in grave condition. The Dafodil Hospitals Pvt. Ltd. received the patient suffering from renal disease, sepsis, pleural effusion with high blood urea and creatinine. The Biochemistry (blood) report ( page 30) of the petition of complaint also discloses that while the said hospital received the patient on 11.06.2016 his blood urea level was extremely high at 202 (normal range 10 - 45) and creatinine level was high at 5.2 (normal range 0.7 - 1.4). His sodium level was also low at 132 and his CRP was 0.85 with the possibility of systemic infection. L.F.T. Test report (page 32) also discloses that liver function test was abnormally high, SGPT at 530 (Normal upto 41) and SGOT was 535 (Normal upto 38) with alkaline phosphatage of 305 (Normal upto 38). These documents clearly prove that when the patient came to Opposite Party No. 9 Nursing Home the prognosis of the patient was already guarded. It is in evidence that opposite party No. 9 Nursing Home managed the patient conservatively with dialysis, I.V. antibiotics and nebulisation and pleural tapping but later the patient developed thrombocytopenia and sepsis and ultimately died on 21/06/2012 at 12.20 a.m. due to acute cardio pulmonary failure in a case of sepsis, septic shock, with multi organ dysfunction syndrome (MODS) in a background or HTN & CKD.
The overwhelming evidence of opposite party No. 1, opposite party No. 5 and opposite party Nos. 4, 6 & 9 on record make it clear that the patient was discharged from Cure Centre Nursing Home, Apollo Gleneagles Hospital on executing risk bond by the opposite party. Therefore, on consideration of evidence of the opposite parties and the documentary evidences [ Annexure 'F' ( page 25), Annexure 'G' ( page 26), Annexure 'H' ( page 27), Annexure 'I' series ( page 29 to 37)] we have the reason to believe that the opposite party Hospitals and Nursing Homes did not refuse to admit the said patient and there was no negligence and / or deficiency in service on the part of the opposite parties, rather the patient party released the patient from the said hospital on executing the risk bond and they have taken back the patient in their care and custody at their own risk.
The decision reported in II (2005) CPJ 35 NC Pravat Kumar Mukherjee Versus Ruby General Hospital & Ors. is of no assistance to the complainants as because in this case deceased met with a road traffic accident and was brought to the Ruby General Hospital which was close to the place of accident and Ruby General Hospital denied to treat the victim. But in the present case, there was no refusal but there was discharge on executing risk bond by the patient parties.
Another decision reported in 1989 AIR 2039 Pt. Paramanand Katara Vs. Union of India & Ors. is also of no assistance to the complainants as because the scooterist was knocked down by a speeding car and the scooterist was taken to the nearest hospital but the doctors refused to attend him. But in the present case, the patient was released on executing risk bond by the patient parties.
In Suresh Jain Vs. Dr. Mukesh Jain & Ors. reported in 2010 (1) CPR 49 NC the Hon'ble National Commission observed that :-
"Doctors cannot be held responsible for the negligent acts of patients who are adamant and decide on their own as to what to do and when to take the treatment and do not follow the instructions given to them by the treating doctors."
We appreciate the pain of the Complainants, but then, that by itself cannot be a cause for awarding compensation for the passing away of their husband and father. We have sympathy for the complainants, but sympathy cannot translate into a legal remedy.
Having regard to the discussion done and legal position explained we are of the considered view that negligence and the deficiency in service as alleged against the opposite parties could not be substantiated. Thus, the complaint cannot be allowed.
In the result, the complaint case be and the same is dismissed without any costs.
The complaint case is thus disposed of accordingly.
[HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER