State Consumer Disputes Redressal Commission
Dr. Tripti Das vs Dr. Phani Bhusan Mandal on 1 November, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/28/2013 ( Date of Filing : 01 Feb 2013 ) 1. Dr. Tripti Das D/o Late Mahendra Chandra Das, 280, Majher Rasta, Buroshibtala, Chuchura, Hooghly-712 105, W.B. India. 2. Dr. Gairik Ghosh S/o Dr. Tripti Das, 280, Majher Rasta, Buroshibtala, Chuchura, Hooghly-712 105, W.B. India. ...........Complainant(s) Versus 1. Dr. Phani Bhusan Mandal MS, Mch(Neurosurgery), C/o Divine Nursing Home Pvt. Ltd., 11A, Abinash Chandra Banerjee Lane, Beliaghata, Kolkata - 700 010. 2. North City Hospital and Neuro Institute Pvt. Ltd. 73, Bagmari Road, Kolkata - 700 054. 3. Divine Nursing Home Pvt. Ltd. 11A, Abinash Chandra Banerjee Lane, Beliaghata, Kolkata - 700 010. ............Opp.Party(s) BEFORE: HON'BLE MR. SHYAMAL KUMAR GHOSH PRESIDING MEMBER HON'BLE MR. AJEYA MATILAL JUDICIAL MEMBER PRESENT: Dr. Kunal Saha (Authorised Person)/, Advocate for the Complainant 1 Dr. Kunal Saha (Authorised Person)/, Advocate for the Complainant 2 Mr. Krishnendu Bera, Advocate for the Opp. Party 2 Mr. Abhik Kr. Das, Advocate for the Opp. Party 2 Mr. Barun Prosad, Advocate for the Opp. Party 2 Dated : 01 Nov 2022 Final Order / Judgement Hon'ble Mr. Shyamal Kumar Ghosh, Presiding Member
(1) The instant consumer case has been filed by the petitioners/complainants viz. Dr. Tripti Das and Dr. Gairik Ghosh against the o.ps. viz. Dr. Phonibhusan Mondal, Northcity Hospital and Neuro Institute Pvt. Ltd. and Divine Nursing Home Pvt. Ltd. praying for compensation to the tune of Rs.1 crore only as punishment due to medical negligence and deficiency in service on the part of o.ps. / doctor / North City Hospital / Divine Nursing Home (2) The brief fact of the case is that Dr. Sujit Kr. Das aged about 74 years suffered an injury to his head around the midnight of 18.04.2011 or very early hours of 19.04.2011. Dr. Phonibhusan Mondal (o.p. no.1) advised for admission to the ICU of Northcity Hospital and Neuro Institute Pvt. Ltd. (o.p. no.2). Dr. Phonibhusan Mondal o.p. no.1 attended the patient around 2-00 A.M. on 19.04.2011 and stitched up the cut injury. He did not perform any specific examination, investigation or treatment in respect of the head injury. No C.T. Scan of brain was done, although the patient was under his treatment all throughout the night. It was recorded at an undisclosed time on 19.04.2011 by Dr. Phonibhusan Mondal, o.p. no.1 at Northcity Hospital and Neuro Institute Pvt. Ltd., o.p. no.2 that the patient was taken outside on DORB (Discharged on Own Risk Bond). After expiry of 6-7 hours the C.T. Scan was done on the next date i.e. 19.04.2011 at about 8-30 A.M. at the C.T. Lab of Divine Nursing Home Pvt. Ltd. i.e. o.p. no.3 which revealed acute SDH over Left Fronto - Parieto-Temporal region and inter hemispheric fissure causing compression of adjacent cortex at left sylbian fissure, third and left lateral ventricle with a midline shift of 13 mm to right indicating subdural haematoma. Dr. Phonibhusan Mondal i.e., o.p. no.1 admitted the patient at 9-00 A.M. on 19.04.2011 in Divine Nursing Home Pvt. Ltd. where the patient was kept until his death on 20.04.2011 under his own care and o.p. no.1 himself attended the patient and even performed a surgery at the said nursing home later in the evening of 19.04.2011. At the time of admission at o.p. no.3 nursing home the patient had slurring speech, disorientation and right sided weakness etc. Despite of this critical condition of the patient in the ICU with definite evidence of SDH Dr. Phonibhusan Mondal i.e. o.p. no.1 decided to perform surgery at a prescheduled time of 6-00 P.M. on 19/04/2011. At 1-00 A.M. on 1904.2011 the petitioner/complainant no.2 Dr. Gairik Ghosh was allowed to meet the patient viz Dr. Sujit Kr. Das in the ICU of o.p. no.3 nursing home. The patient was not in a condition to speak or move his legs, but barely managed to indicate that he recognized his nephew Dr. Gairik Ghosh by looking and moving his head. But at that time Dr. Phonibhusan Mondal, i.d. o.p. no.1 was not available at hospital. At 12-30 P.M. on 19.04.2011 the petitioner/complainant no.1 Dr. Tripti Das reached o.p. no. 3 nursing home. It was reported that the patient was in a grave condition, but the complainants/petitioners were not allowed to take entry inside the ICU as the visiting hours was over. At around 3:30 P.M. on 19.04.2011 Dr. Phonibhusan Mondal informed the complainants/ petitioners that he had planned to operate at the head of the patient at 6-00 P.M. 19.04.2011 and the complainants/petitioners were asked to arrange one unit of blood for the said operation. Dr. Phonibhusan Mondal o.p. no.1 performed the surgery at about 6-00 P.M. on 19.04.2011 after 17 hours. The patient was shifted to back to ICU with extreme critical condition. On 20.04.2011 at about 8-00 P.M. the complainants/petitioners were informed by doctors in the ICU of o.p. no.3 nursing home that the patient became fully unconsciousness and as such, they took the decision to put the patient in ventilation further. Thereafter, the patient Dr. Sujit Kr. Das was being shifted out of the ICU across the public road without any life support to another building for C.T. Scan at around 1-30 P.M. on 20.04.2011. He was brought back to the ICU after C.T. Scan. The complainants/petitioners were further informed at about 10-00 P.M. on 20.04.2011 that the patient had been put on a ventilator. Thereafter the patient underwent cardiac arrest and died shortly at about 10-00 P.M. Thereafter the doctors declared death of the patient. There is a clear gross negligence and deficiency in service on the part of the opposite parties.
Under such circumstances, the complainants/petitioners knocked at the door of the Commission for getting proper relief or reliefs as prayed for against the o.p. nos.1 to 3.
(3) O.p., no.1 contested this case by filing written version deny material allegations of the complaint except those are matters of record. O.p. no.1 stated that Dr. Sujit Kr. Das was a bachelor and living alone in his own residence situated at Salt Lake. He received a scalp injury at his residence at about late night on 19.04.2011. O.p. no. 1 was informed about the said incident at about 1-15 A.M. by Dr. Rajendra Prasad Singh. Dr. Das himself informed Keya Chakraborty and Keya Chakraborty transmitted the same to Dr. Singh. O.p. no.1 made an arrangement regarding admission in North City Hospital and Neuro Institute Pvt. Ltd. i.e. o.p. no.2. It is very pertinent to mention here that at the material point of time the weather was inclement stormy followed by torrential rain. Dr. Singh discussed and advised the medical officer of the o.p. no.2 hospital to take preliminary care of Dr. S. Das. Dr. Konar also came to o.p. no.2 hospital at about 1-30 A.M. O.p. no.1 attended Dr. Sujit Kr. Das along with Dr. Konar at about 1-50 A.M. and noticed the injury on his forehead. At that time the patient was fully conscious. The patient was suffering from COPD for a long span of time and as such, he had to use inhaler regularly. The stitches were given at the said o.p. no.2 hospital. Oxygen was given and nebulisation was done in order to impart relief from the breathlessness and I.V. fluid injection, tetglob injection, derifyilin injection etc. were also administered. It is fact that there was no arrangement for C.T. Scan at the o.p. no.2 hospital and since it was raining heavily so it was not possible to shift the patient for C.T. Scan to another hospital. It was not also possible to go for immediate surgical interference with the patient for his pre-existing disease which was known to the doctors. At 3-00 A.M. of the early morning o.p. no.1 returned home and again at 7-30 A.M. o.p. no.1 further attended the patient along with Dr. Singh and decided to shift the patient to o.p. no.3 Divine Nursing Home. The patient was admitted to o.p. no.3 nursing home. C.T. Scan was done at 8-33 A.M. But the C.T. Scan report clearly indicated huge subdural haematoma with mass effect and it was decided that immediate surgical interference would be required. Before going to the surgical interference o.p. no.1 discussed the matter with Dr. Tapan Patra, Dr. D. Sanyal, Dr. R.P. Singh, Dr. H. Konar and Dr. Swapan Jana. It is fact that the patient was suffering from various diseases and for that reason it was unanimously decided not to take any hasty action since the same may be detrimental to the condition of the patient. In particularly all the doctors concerned decided for immediate transfusion of FFP and injection, vitamin K before operation as pre-operative measure. The doctors concerned were well aware of the patient's pre-existing disease such as, hypertension, COPD, diabetic mellitus, prostatectomy, bronchodilators etc. for last several years. At the crucial time no blood donor was available and as such, Dr. Singh donated his blood. At about 1-20 P.M. Dr. Tripti Das, Dr. Dharani Ghosh and Dr. Gairik Ghosh were available for discussion and briefing. They were made aware of grave situation of Dr. Das. It was also decided that they were willing to get the patient admitted elsewhere for any better treatment, but they showed no sign of disagreeing with the treatment protocol including the time of operation suggested by the doctors concerned of the said hospital nor did they suggested transfer the patient to another place having better medical facilities. Apparently having been satisfied with the arrangement and treatment planning they left the nursing home without waiting for the scheduled operation or signing the consent form for operation. Thereafter o.p. no.1 again attended the patient at about 3-45 P.M. but there was none from the end of the complainants to give consent before the scheduled time for operation. Ultimately, signature on the consent form was obtained from Arin Biswas, another nephew of the patient at about 5-00 P.M. After getting the consent form, the patient was taken to O.T. at about 5-20 P.M. and the operation was started at around 6-00 P.M. and was ended at 8-00 P.M. After operation the patient was unconscious and remained incubated and was breathing spontaneously and vital signs were within normal range. The doctors concerned observed the patient till 11-00 P.M. Next morning on 20.04.2011 at about 9-00 A.M. o.p. no.1 went to the nursing home and found the condition of Dr. Das not satisfactory. His condition was still very critical and was deeply comatosed. Thereafter, o.p. no.1 doctor advised to get another C.T. Scan of the brain and it was done at about 8-30 P.M. The said C.T. Scan revealed left sided gross brain oedema. There was another haemorrhage on the right perital region and haemorrhagic contusion of left temporal region. Then the doctors concerned decided to keep the patient under mechanical ventilation after consulting Dr. Anjan Dutta., a senior anaesthetic who was present at that time. Subsequently Dr. Das developed ventricular tachycardia and fibrillation, CPR and cardiac shocks were given. Unfortunately, he did not respond to all these measures and breathed his last at 10-30 P.M. O.p. no.1 asserted that they took all measures to cure the patient, but ultimately the patient expired. There is no negligence or fault on the part of o.p. no.1 / doctor. Accordingly, o.p. no.1 prayed for dismissal of the petition of complaint with exemplary costs.
(4) O.p. no.2 North City Hospital contested this case by filing written version stating inter alia that o.p. no.2 nursing home provides the following facilities: (1) general bed or ICU depending upon the complications of the patient, (2) food to the patient, (3) operation theatre, (4) RMO, (5) monitoring etc. O.p. no.2 is rendering nursing home service for many years. The present complaint has been filed by the complainants in order to malign the reputation of o.p. no.2 hospital. Dr. Sujit Kr. Das was brought to o.p. no.2 hospital on 19.04.2011 at about 1-30 A.M. in the late night with head injury. The relatives of the patient informed the admission staff to get the patient admitted under the o.p. no.1 which was also confirmed by o.p. no.1 over telephone and accordingly the patient was admitted in the ICU of the said hospital. The patient was treated by RMO who was on duty at the said hospital and the doctor correctly diagnosed the condition of the patient which was clearly mentioned in the bed head ticket (BHT) and the said document thereafter was supplied to the complainants. The patient was kept under the observation in ICU and the treatment was done as per well accepted medical norms after consultation of o.p. no.1 doctor. The patient was examined and treated by o.p. no.1 at the hospital at around 2-00 A.M. dt.19.04.2011 and the details of his advice have been reflected in the treatment sheet and thereafter, the complainant filed the same. O.p. no.2 hospital fairly submitted that there was no such facility of C.T. Scan and such, o.p. no.2 was not in a position to provide with that particular service to the patient. For that reason the patient was transferred to o.p. no.3 Divine Nursing Home for necessary treatment. There is no such gross negligence or deficiency in service on the part of o.p. no.2 hospital and o.p. no.2 also prayed for dismissal of the petition of complaint with costs.
(5) O.p. no.3 Divine Nursing Home contested this case by filing written version stating inter alia that at the time of admission of the patient no family relation was found and therefore, o.p. no.1 took the responsibility to make necessary signature in the admission form and consent form of the said nursing home. Thereafter, the patient was admitted in ICU and immediate treatment and investigations were started as per direction of o.p. no.1. There was no such delay either in case of investigation or getting its report, collection of blood, C.T. Scan etc. Due to unfortunate death of patient viz. Dr. Sujit Kr. Das, the said nursing home authority issued death certificate through the treating doctor. As and when instructions were given by the treating doctors the said nursing home immediately complied with such direction regarding several tests. As the condition of the patient was so serious, to avoid the delay in treatment of the patient the O.P No. 3 provided with necessary treatment before awaiting the final report. It is to be mentioned here that the case sheet was prepared by MO as per physical inspection of the patient along with instruction of the treating doctor. In this case as the patient Dr. Sujit Kr. Das was suffered from head injury at his old age about 76 years old his condition was sometimes unconscious and sometimes he regained his sense and for that reason the following observation was noted by the doctor.
"H/O fall yesterday. Pt. was semiconscious for some time. Subsequently regained consciousness with slurring speech disorientation and rt. Sided weakness".
Regarding time of admission of the patient (whether 9-00 A.M. or 8-45 A.M.) Dr. Phonibhusan Mondal i.e. o.p. no.1 arranged everything regarding immediate shifting from North City Hospital to Divine Nursing Home. He took all initiative regarding arrangement of C.T. Scan of the patient, filling up admission form, consent form, blood transfusion and thereafter providing with sufficient medical treatment to the patient. Be it mentioned here that at the time of admission of the patient there was no family member in order to complete the necessary formalities. Therefore, the difference in mentioning the admission time has been caused, but it does not come well within the purview of the gross negligence and deficiency in service on the part of o.p. no.3 nursing home.
(6) The points for consideration are as follows:
(a) Whether the Complainants come well within the purview of the definition of Consumers as per Consumer Protection Act. 1986 or not (b) Whether there was any gross negligence or deficiency in service on the part of o.ps. nos.1, 2 & 3 and (c) Whether the complainants are entitled to get any relief as prayed for or not.
Decision with reasons:
All the points are taken up together for the sake of convenience, brevity and their interrelated matters;
(7) It is admitted that the patient namely Dr. Sujit Kr. Das died on 20.04.2011 at about 10:30 PM. After death of Dr. Das, the Complainants filed the instant CC Case before the Commission as the Status of 'Beneficiary' which is well within the ambit of the definition of the Consumer as per Act. 1986. In course of hearing A.R. of the complainants argued that no C.T. Scan was done at o.p. no.2 hospital. It is his submission that the clot should have been removed as soon as possible and C.T. Scan was done at o.p. no.3 nursing home at belated stage. Now we try to justify the submission made by A.R. of the complainants. The patient was admitted on 19.04.2011 early morning at o.p. no.2 hospital. As per medical journal C.T. Scan should be made within 8 hours but in the instant case after expiry of 10 hours C.T. Scan was done at about 8-33 A.M. on the next date and regarding this submission o.p. no.1 raised objection and stated that some patients with mild head injury are at significant risk of intracranial haematoma and require a computerised tomography (CT) Scan selecting which patient should have a C T Scan is not always easy. On the other hand, scanning all patients with minor head injury would be expensive, time consuming and would unnecessarily expose thousands of patients to ionising radiation. On the other hand, a missed intracranial haematoma is a potentially life threatening medical error. The National Institute for Health and Clinical Excellence (NICE) has published some guidelines for when to carry out a C T Scan in a patient with mild head injury. If a patient fulfils the criteria for a C.T. Scan according to this NICE Guidelines then the decision to discharge the patient without a scan should only be made by a senior clinician experienced in the management of head injury and to that effect Ld. Advocate for o.p. no.1 cited the medical journal Bailey & Love's Short Practice of Surgery, page no.303. Ld. Advocate for o.p. no.1 also stated that the management of a patient with a moderate to severe head injury begins with resuscitation and a primary survey. The principal aim of the treatment is the prevention of secondary brain injury and this is best achieved by the avoidance of hypoxia and hypotension. It follows that investigation such as a C T Scan of the head are of secondary importance to restoring normal oxygenation and blood pressure, even if that means going to the operating theatre to prevent ongoing abdominal or pelvic blood loss. Having completed the primary survey and established the presence of a moderate to severe head injury, the next appropriate step is a C. T. Scan of the head. Regarding this matter we have meticulously perused the case history of o.p. no.2 hospital as well as o.p. no.3 Divine Nursing Home. It appears from case record of o.p. no. 2 that the Lt. Nephrectomy of the patient was done 12 years back and angioplasty was also done 10 years back. It also appears from the case history of the patient clearly enumerated in the treatment sheet of the o.p. no.3 that the patient was suffering from diabetes mellitus, high blood pressure and chronic obstructive pulmonary disease (COPD) since long period of time. It also appears from the treatment papers that the patient was the aged about 73 years old and at this stage, it is our view that before C. T. Scan precaution should be taken by the doctors.
(8) A. R. of the complainant also argued that Dr. Phonibhusan Mondal i.e. o.p. no.1 attached to o.p. no.2 hospital prescribed Ondem 8+8 mg I.V. start and 8 hourly which was treated to be overdose for the patient and there was every chance to cause injury and life threatening to the patient. Regarding this argument the o.p. no.1 referred the annexure-D20.1 and submitted that however, two patients who received doses of 84 and 145 mg intravenously reported only mild side effects and required no active therapy. Symptomatic and supportive therapy should be given as appropriate. There is no specific antidote for overdose with Ondansetron. So the argument advanced by the A.R. of the complainant regarding overdose of Ondem has no leg to stand upon.
(9) An argument was advanced by the A.R. of the complainant to the effect that there was negligence on the part of o.p. no.2 because they did not make any arrangement for shifting the patient to any hospital immediately for C.T. Scan. It is evident that at that point of time there was torrential rain and it was not favourable for the patient to shift him to another hospital for C.T. Scan and treatment. If the patient was shifted in hectic manner the consequences might be colossal for him.
(10) It appears from the record that the complainant lodged a complaint against Dr. Phonibhusan Mondal before the West Bengal Medical Council for ascertaining medical negligence. On 28.03.2018 the Medical Council held that but from a medical stand point the allegations do not stand up for scrutiny. Dr. Mondal was not guilty for deficiency of services or of medical negligence. He should be honourably exonerated. He did his best for his friend and mentor.
(11) Dr. Tripti Das lodged another complaint with the Asstt. Registrar of West Bengal Medical Council. The Registrar of West Bengal Medical Council gave a detailed report and it opined in the said report "(4) There is no doubt that some delay did occur in transferring the patient to another nursing home for C T Scan, but this is due to the circumstances and facilities available, I cannot see any 'negligence' on part of treating neuro surgeon in this matter. (5) Finally there is high mortality of elderly patient with acute subdural haematoma (quoted between 48 % and 79%), and literature available (table 2) show that this is increased in majority of the studies in patient on anti platelet agents. (6) Hence, regarding the delay in subjecting the patient to surgery as well in not using platelets transfusion no negligence can be summarised based on available studies and recommendations in neuro surgical literature for condition where in mortality of the condition per se is already very high. This is the opinion of Dr. Sandip Chatterjee, MBBS(Cal), FRCS, DNB(surgery), FRCS (Neuro Surgery).
(12) In respect of the order passed by West Bengal Medical Council the complainant Dr. Tripti Das preferred an appeal against Dr. Phonibhusan Modal, Divine Nursing Home, Kolkata on 06.05.2013. The matter was considered by the Ethics Committee in its meeting held on 21st and 22nd Feb, 2014. The Ethics Committee felt that Dr. Mondal did everything what a reasonable doctor would do at that instance and circumstances, and rather excelled as good human being for helping the patient with good intention. The Ethics Committee further felt that there was no medical negligence on the part of Dr. Mondal in the treatment provided to Dr. Das". With such observation the Ethics Committee decided the appeal.
(13) An enquiry has been conducted by Dr. L.K.Hatui , ADHS (Clinical Establishment) Directorate of Health Service, Govt of West Bengal, as per Memo no - HAD/8H-39-12/A4528 dated 23/07/2012. From this report it is clearly revealed that the patient Dr. Sujit Kumar Das was suffering from various disease such as diabetes mellitus, COPD, angioplasty, renal carcinoma, hypertension etc. and as such any hasty action might be detrimental for the patient. The bed head ticket and documents collected from the both North City Hospital and Divine Nursing Home have been sent to the Director of Medical Education, West Bengal for a second opinion from Neuro-surgeons whether there was any negligence on the part of Dr. Mondal.
In remarks Dr. Hatui opined that there was no negligence in the medical treatment of Dr. Sujit Kumar Das, since deceased by Dr. Modal at Divine Nursing Home on 19/04/2011 and 20/04/2011.
(14) In course of hearing A/R of complainants argued that no GCS was done at the time of treatment of the patient. How much GCS plays a vital role in the treatment when the patient received head injury on forehead. At this stage we have carefully read out the famous medical journal viz. YOUMANS NEUROLOGICAL SURGERY and the said journal clearly states that the GCS scale has been universally adopted for grading the clinical severity of head injuries and other pathologies that impair consciousness. Before the computed tomography CT era, GCS score was used to identify patients who should undergo contrast studies to detect intracranial collections of blood. In the modern era, however, GCS plays an important role in categorizing injury severity, allowing for standardized determination of clinical neurological status and detecting episodes of neurological deterioration. It must be noted, however, that the utility of GCS is somewhat limited with modern-day therapies. For example most patients arrive to the hospital by ambulance unresponsive because of sedation and neuromuscular blockade. In these patients an accurate postresucitation score cannot be determined until pharmacologic agents are actively antagonized or metabolized. Furthermore intubation and concomitant injuries resulting in orbital swelling can significantly interfere with accurate eye opening and verbal scoring. Thereafter we have also perused the expert opinion of Dr. Prof. Monoj Kumar Bhattacharyya, formerly Professor of Head of the Dept of Neurosurgery, Bangur Institute of Neurology and IPGME & R, Govt of West Bengal, Kolkata. The said report reveals that GCS is a digital form of expressing the consciousness level of head injury patient on certain clinical findings, if any one describes in language and can detect correctly the patient's consciousness level and act accordingly it cannot be called negligence in any form. Dr. Bhattacharyya also opined that there is neither any mistake nor any negligence on the part of Dr. Mondal in the treatment of Dr. Sujit Kumar Das.
(15) In the report of the expert committee, Prof. Debasis Basu, Dr. Sudipta Chatterjee and Prof. Tapan Kumar Lahiri suggested that the protocol of noting the clinical profile in head injury patients eg GCS scoring should be incorporated in regular clinical notes of the doctor on duty. Moreover a nursing home, doing emergency brain surgeries should have their own CT scan machine. In this regard we can rely upon a remarkable decisions of Hon'ble Supreme Court in Chanda Rani Akhouri vs M.S. Methusethupathi decided on 20th April 2022 wherein it was held that the simple lack of care, error of judgment or an accident, is not a proof of negligence on the part of a medical professional.
(16) The complainants, at the time of hearing, against the delayed surgery of the patient. we have carefully perused a medical journal viz. YOUMANS NEUROLOGICAL SURGERY SIXTH EDITION BY H. RICHARD WINN, MD, VOL - 1 and the said journal categorically stated that increasing age is a strong independent factor in prognosis from severe TBI (Traumatic brain injury) with a significant increase in poor outcome in patients older than 60 years of age. Among patients with acute SDH, there is also a tendency for older patients to have a poorer outcome, especially those patients presenting with low GCS score. The time from injury to entering the operating room is one of the few factors that can be affected by intervention. Unfortunately the relationship between time from injury to the time of operation and outcome is difficult to study because patients who are operated on soon after TBI tend to have more severe injuries than those who undergo delayed surgery. Therefore outcome in patients operated on a short time after injury is frequently worse when compared with patients undergoing delayed surgery. Most studies focusing on the time between injury and surgery did not find a correlation with outcome (15,17,18,21,28,32). Some investigators even reported that early surgery was associated with worse results than delayed surgery (6,14,29).
(17) From the four corners of the prescription/treatment sheet issued by the op 2 and op 3, it is clearly revealed that on 19/04/2011 the patient was released from the North City hospital on DORB signed by DR. Mondal since none from the patient side was available at that point of time. At about 8.00 AM the patient was shifted to Divine nursing home and CT scan was done there at about 8.30 AM. From the said scan report it is revealed that the patient was suffering from SDH with mass effect. At about 1.25 PM blood transfusion was started. At about 5.00 PM the consent from was signed by Mr. Arin Biswas, nephew of the patient and the patient was transferred to OT. At about 6.00 PM operation was started and at about 8.00 PM operation was completed. We have carefully perused post operative advice and operative note. From the said note it is clear to us that the Dura opened and blood clot of about 500 gm has removed. Dura stitched. Wound closed in layers. On 20/04/2011 at about 7.00 AM, 9.00 AM the doctor visited the patient and the post operative treatment was done. At about 8.30 PM further CT scan was done but the said report revealed cerebral oedema, left temporal small contusion and brain shift. But ultimately the patient declared dead at about 10.30 PM.
(18) Regarding argument on consent form, we find that before operation of the patient, no relatives were present there and as such the consent form was signed by Sri Arin Biswas, nephew of the patient. At the time of operation, the presence of relatives of the patient should be necessary. But unfortunately they were absent at that point of time. On the other hand for the sake of immediate and urgent operation, the op no - 1/doctor as a close friend of the patient, was bound to take the firm decision for endorsement of signature upon the consent form and thereafter OT was done. The result whatever will be happened, the attempt should be taken immediately in order to provide proper treatment to the patient. We think that the doctor op no - 1 took proper and reasonable care at this stage to save the life of the patient. For the purpose of obtaining the signature upon the consent form the doctors cannot wait for indefinite period of time.
(19) In course of hearing A/R of the complainant often cited the case of Anuradha Saha but in this regard it is our view that there is no such straight jacket formula which can be used for all cases.
(20) An interlocutory application being no-438/2022 has been filed by the opposite party no - 2/North City Hospital praying for taking into judicial consideration of medical expert reports and upon hearing of both sides, the instant application has been allowed on contest and it was decided to consider the same at the time of final hearing. Finally said reports are taken into consideration in order to reach the finality of the case.
(21) Dr. Kunal Saha also submitted a report regarding the aforesaid event and subsequently he pleaded the said consumer case relating to medical negligence for and on behalf of the complainants and as such we cannot accept the same. The prayer for independent expert should have been called for by the complainants through this Commission but no prayer was made by them. Accordingly the said report has no evidentiary value at all.
(22) Dr. Richard Greenwood, MD, FRCP also made a report which was also perused carefully. But in conclusion we do not find any direct allegations against the doctors and nursing homes.
(23) Dr. Ramnarayan also submitted a report regarding the aforesaid event. We have also perused the same carefully. In said report some allegations against the doctors and nursing homes are mentioned. But the same are already discussed above elaborately.
(24) At this stage we can rely upon a remarkable judgment viz Ramesh Chandra Agarwal vs Regency Hospital Ltd. others reported in (2009) 9 SCC 789 wherein the Hon'ble Apex Court held that there is a need to hear an expert opinion where there is a medical issue to be settled. Section - 45 of the Evidence Act speaks for expert evidence. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case and in course of hearing we can rely safely upon all expert opinions provided by the different doctors and try to reach the finality of the instant case.
(25) So far as the allegation of medical negligence on the part of doctors/hospital/nursing home is concerned we may note that the Hon'ble Apex Court as well as Hon'ble National Commission in a catena of decisions consistently held that negligence cannot be attributed to a doctor so long he performs his duties with reasonable skill and competence as it was done in the instant case and it is the bounden duty and obligation of civil society to ensure that the medical professionals are not necessarily harassed or humiliated so that they can perform their professional duties without any fear and apprehension and to work for the welfare of the patients which is the paramount consideration for the medical professions.
(26) Hon'ble Apex court in Bolam vs Frien Hospital Management Committee ( known as Bolam Test) reported in 2005 3 CPR 70 (SC) held that a doctor is not guilty of negligence if he has acted in accordance with a practice so accepted by a responsible body of medical men skilled in that particular art. Hon'ble National Commission in Reshma Devi Jadav and other vs Dr. (Mrs) Reeta Bagchi and others reported in 2016 1 CPR 557 (NC) held that every medical fatality does not indicate negligence on the part of treating doctor.
(27) If the experts' opinion with regard to treatment of the patient is taken into consideration it can be concluded that the opposite party no - 1 along with his team ie opposite parties 2 and 3 tried their best to save the patient who could not survive ultimately due to the reasons which were beyond the control of the medical persons. In pursuant to the Bolam Test, the opposite parties maintained everything which is medically accepted method/procedure.
(28) All the points are thus decided in favour of the Opposite Parties and against the complainants accordingly.
(29) Considering all aspects from all angles and keeping in mind the present position of law and regard being had to above referred case laws and submission of both sides, we are of the opinion that the instant consumer case has no leg to stand upon. Accordingly the instant consumer case stands dismissed on contest against the opposite parties without any order as to cost.
(30) As per above view the instant consumer case stands disposed of.
(31) Note accordingly.
[HON'BLE MR. SHYAMAL KUMAR GHOSH] PRESIDING MEMBER [HON'BLE MR. AJEYA MATILAL] JUDICIAL MEMBER