NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO.349 OF 2010
(From the order dated 17.10.2006 in Complaint No.98/1999 of the
State Commission, West Bengal)
Chittaranjan Halder …Appellant
Versus
M/s Dolphin Nursing Home & Ors. …Respondents
BEFORE:
HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
For the Appellants : Ms.Aakriti Jain, Advocate as Amicus Curiae
For the Respondents : Mr.Partha Sil, Advocate
Pronounced on 25th September, 2012
ORDER
PER VINEETA RAI, MEMBER
This First Appeal has been filed by Sh.Chittaranjan Halder (hereinafter referred to as the ‘Appellant’) being aggrieved by the order of the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the ‘State Commission’) which had dismissed his complaint of medical negligence against the opposite parties, M/s Dolphin Nursing Home and others (hereinafter referred to as ‘Respondents’).
Briefly, the facts of the case are the Appellant had got his pregnant wife, Smt. Sumita Halder admitted in the Respondent No.1/Nursing Home on 25.09.1991 at 7.40 pm on the advice of one Dr.M.B. Kanjilal, Respondent No.3 whom she had consulted during her pregnancy. Appellant paid Rs.2,000/- at the time of her admission and after she was medically checked, he was assured that the patient was in a normal and stable condition and there would be a normal delivery. On 26.09.1991 at 9.30 am, when Appellant came to the Respondent No.1/Nursing Home, he found that his wife was not in the bed earmarked for her and on enquiry, he was informed by the staff of the Respondent No.1/Nursing Home that she had delivered after having undergone a caesarean operation. Appellant was asked to sign certain documents in connection with the birth of the child which he did in good faith. When Appellant entered the Operation Theatre he found that his wife was unconscious and bleeding profusely. There was blood smeared on the floor as well as on the walls. At 10.45 am, Respondent No.3 entered the Operation Theatre and came out immediately thereafter and informed the Appellant that his wife was no more. Appellant contended that the death of his wife occurred in the Respondent No.1/Nursing Home because it did not have the proper infrastructure or arrangements for undertaking such deliveries. Neither the surgical instruments nor the Operation Theatre were of the required standard. Necessary facilities for blood transfusion, oxygen etc. were not readily available during the surgery. Further, the caesarean surgery was conducted on his wife without taking his consent and also immediately after the birth of the child, the anesthetist left the Operation Theatre and his wife was left unattended without a single doctor or nursing staff to monitor her condition. Being aggrieved by the medical negligence and deficiency which caused the death of his wife, Appellant filed a complaint before the State Commission and requested that Respondents be directed to pay him jointly and severally Rs.18 lakhs as compensation and Rs.10,000/- as litigation cost.
Respondents on being served denied the allegations of medical negligence and contended that Appellant’s wife’s condition was carefully monitored right from when she was admitted on 23.09.1991. Next day when the foetal heart rate was found to be 180/Minute which is high, using their best professional judgment to save the life of the unborn child, it was decided to deliver the child through caesarean section. This is also as per standard case practice when foetal distress is noted. Appellant who was away at that time was contacted over phone and his consent taken. When the operation was nearing completion, mild peripheral cyanosis was detected at the fingertips of the patient upon which necessary resuscitative measures were taken which initially improved the condition of the patient but there was reappearance of the cyanoses and the patient did not respond to any treatment and her condition continued to deteriorate. Emergency drugs /injections were given to her but the patient could not be saved. The cause of death was clinically diagnosed as “cardiac respiratory failure due to pulmonary embolism in post-operative case of caesarean section”. Hence, there had been no lapse or deficiency in service on the part of Respondents.
The State Commission after hearing both parties and considering the evidence filed before it, dismissed the complaint with the following observations:
“On a thorough perusal of the complaint we find that it is a replete with repeated references to the remark that the OPs were grossly negligent and deficient in rendering their services and as a result thereof the patient expired. But curiously enough the complainant has nowhere given the concrete instance of such negligence of deficiency of the doctors or of the nursing home. Mere citation of the words ‘negligence’, deficiency, etc. cannot be sufficient unless it is shown in detail as to how such negligence was actually displayed or reflected in the acts of the doctors. The complainant has not said a single word as to the standard or quality of the operation held on his wife. On the other hand, the doctors involved (OP Nos. 4, 5 and 6) have stated the conditions elaborately under which they had to conduct such an operation in an urgent situation in order to save the life of the patient. They have also showed how certain complications develop in the patient so that the treatment afforded by them as per the principles of medical science ultimately failed. As against that the complainant has not been able to adduce any evidence like expert’s opinion or quotations from medical treatise, etc. to show that what those Ops-Doctors did fell show of the standard which is followed by a body of doctors of average prudence and expertise.”
Hence, the present First Appeal.
Since Appellant had represented to us that he was unable to afford a Counsel, to ensure that proper justice was done in his case, this Commission had appointed Ms.Aakriti Jain, Advocate as Amicus Curiae on 14.12.2010. Counsel for Appellant (Amicus Curiae) and Counsel for Respondents made oral submissions.
Counsel for Appellant reiterated that the death of the Appellant’s wife occurred because of lack of even basic facilities required to conduct the caesarean section in the Respondent No.1/Nursing Home and further Dr.Kanjilal, Respondent No.3 whose patient the deceased was, came after the surgery was over and therefore, did not attend to her when she was in a critical condition following which she expired. Further, since the Respondent No.1/Nursing Home did not have a Registration Certificate as required under Clause 3 of the West Bengal Clinical Establishment Act, 1950 and Rule 30 of the West Bengal Clinical Establishment Rules, 1959, it could not have admitted patients and conducted surgeries. It was reiterated that a provisional certificate was obtained only on 3.8.1993 by the Respondent No.1/Nursing Home.
Counsel for Respondent on the other stated that from the medical records which have been filed in evidence, it is apparent that there was no deficiency or medical negligence in the treatment of the patient. Right from the time that she was admitted, her case was properly monitored and her pulse rate, blood pressure, foetal heart rate etc. were duly recorded as per evidence filed which is on record. Unfortunately, an emergency caesarean section had to be performed in the interest of both the mother and the unborn child when the foetal heart beat rate was found to be abnormal. This is as per accepted practice in such cases. Although, the baby was safely delivered, despite the best care and precaution, the Appellant’s wife expired because of cardiac respiratory failure due to pulmonary embolism following the caesarean section. This unfortunate development can take place despite best medical care and this cannot be attributed to the negligence of the doctors. Further, the Appellant has also not been able to produce any evidence to support his contention of medical negligence. Regarding the absence of Dr.Kanjilal, Respondent No.3 at the time of the caesarean surgery, it was stated that even though he could not be present during the surgery since his father had passed away, other qualified doctors as also an anaesthetist attended on the patient. Counsel for Respondents contended that it is not correct that the Appellant was not informed about these facts. He was contacted over phone and his consent was duly taken. Counsel for Respondents further denied that Respondent No.1/Nursing Home was not a registered nursing home in 1991. It was only the certificate from the Municipal Corporation which is renewed every year, had not been renewed at that time. Otherwise, it was registered under the West Bengal Clinical Establishment Act, 1950. The State Commission had, therefore, rightly concluded that there was no case of medical negligence.
We have heard learned Counsel for both parties and have gone through the evidence on record. The fact that the Appellant’s wife was admitted in the Respondent No.1/Nursing Home where she underwent a caesarean section to deliver a male child is not in dispute. It is also a fact that she died following the surgery and as per the Death Certificate the cause of her death was cardiac respiratory failure due to pulmonary embolism following the caesarean section. From the evidence on record, we note that the Appellant’s contention that his wife was not duly attended to after she was admitted during the course of the surgery is not borne out by the facts on the records. The case-sheet duly records that her condition as also that of the foetus was monitored right from the time of her admission as also during the caesarean surgery which was conducted by qualified doctors with the assistance of an anaesthetist. There is no evidence, including any expert medical evidence produced by the Appellant in support of his allegations that there was deficiency in service or medical negligence on the part of the Respondents. The contention of Counsel for Appellant that the Respondent No.1/Nursing Home was not registered under the relevant provisions/rules is also not confirmed by any proof of the same. In view of these facts, we are unable to conclude that there was any medical negligence on the part of the Respondents.
Appellant is present before use. He is a very poor man who earns his livelihood by doing small business in selling pots and pans in the periphery of Kolkata. Admittedly, he lost his wife in the Respondents/Nursing Home and keeping in view this fact and his distressed and poor economic condition, an ex gratia payment by the Respondents to him would be reasonable and justified. We, therefore, direct the Respondents purely on ex gratia basis to pay a sum of Rs.50,000/- to the Appellant within two months from the date of receipt of this order failing which this amount will carry interest @ 9% per annum from the date of default.
Sd/-
…………..…………………
(ASHOK BHAN J.)
PRESIDENT
Sd/-
………….……………….
(VINEETA RAI)
MEMBER
/sks/
