State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027



S.C. CASE NO. FA/08/342

DATE OF FILING: 02.9.2008

DATE OF FINAL ORDER: 10.06.2009


COMPLAINANT/APPELLANT


Smt. Shipra Ghosh

W/o Late Shyamal Ghosh

Residing at 103, Sarada Pally

P.O.- Sarada Pally, P.S.-Bhadreswar

Dist. - Hooghly



RESPONDENTS/O.Ps.



1) Shree Jain Hospital & Research Centre

493/B/12, G.T. Road (South)

Howrah – 711 102

2) Dr. Alfred Woodward

C/o Lamarteniere for Boys

11, Loudon Street

Kolkata – 700 017

3) Dr. Bhabatosh Biswas

Uttara Housing Flat

13, Broad Street

Kolkata – 700 019



BEFORE : HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT

MEMBER : MR. A.K. RAY

MEMBER : MRS. S. MAJUMDER



FOR THE COMPLAINANT/APPELLANT: Mr. R. Chakraborty, Advocate

FOR THE RESPONDENTS/O.Ps.: Mr. P. Basu, Advocate (No.1)

Mr. R.K. Mukherjee (Nos.2 & 3)





: O R D E R :


HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT





This appeal was filed against order dated 14.7.2008 passed by District Consumer Disputes Redressal Forum, Howrah in Complaint Case No. HDF/82/2006 whereby the complaint case was allowed against OP1 exparte with cost of Rs.5,000/- directing OP1 to pay compensation of Rs.20,000/- to the complainant within 30 days of the date of the order.

The facts stated in the complaint in brief are that on 13.6.2005 the husband of the complainant (hereinafter referred to as the patient) feeling trouble in respiratory system was admitted in the Hospital Ankur and was diagnosed as suffering from acute severe respiratory distress. After initial investigation the patient was advised to be transferred to any centre having ICCU/ITU facilities. The patient was accordingly transferred to Anandalok Hospital at Saltlake, Kolkata. The patient was advised for Colour Doppler Test at Appollo Glaenegles Hospital. The said advice was duly complied on 21.6.05. The patient was checked up by Dr. Alfred Woodward at Grothals Memorial Health Centre when the patient was advised that the patient should take admission in Shri Jain Hospital and Research Centre at Howrah. On 24.6.05 the patient was admitted in OP1 upon payment of Rs.5,000/- as admission charge. On the next date the complainant was directed to deposit Rs.10,200/- for Coronary Angiography Test which was held and the report was supplied to the patient, recommending high risk in Double Valve Replacement Surgery, the patient was returned to Shri Jain Hospital and Research Centre on 27.6.05 and was again advised for Colour Doppler Test whereupon LVEF was found to be 35%. On 04.7.05 a staff nurse of Shri Jain Hospital and Research Centre told the complainant that operation of the patient would be performed on 06.7.05 directing the complainant to arrange for six bottles of blood.

On 06.7.05 the patient was taken to Operation Theatre at 4:05 P.M. and at about 1:20 A.M. after operation the doctors assured that the patient was o.k. and out of danger. But on 07.7.05 the doctors advised to arrange for blood which was complied. At about 3:10 A.M. on 08.7.05 over microphone it was announced that relatives or friends present should be contacting the concerned department and on reaching the said place the death of the patient was declared.

After written version and recording of evidence, the matter was heard by the Forum below and the final order was passed as stated hereinabove.

Heard Mr. R. Chakraborty, the Ld. Advocate for the Appellant who mainly argued that though Colour Doppler Test showed LVEF below 25% the OPs undertook the said surgery of high risk nature and, therefore, the OPs acted with negligence and, therefore, liable to pay compensation of much higher value than was directed by the Forum below. Reference was made to Vol-II of Harrison’s Principles of Internal Medicine (16th Edition) for showing that contrary to medical literature surgery was done inspite of adverse report in Colour Doppler Test. The relevant portion of the said medical literature is as follows:

“However, unless chordal continuity can be preserved operation is contraindicated in patient whose LV ejection fraction has declined to below 30%.”

The Ld. Advocate for the Appellant further contended that records show clearly that there was re-exploration in respect of the concerned patient though no consent was taken either from the patient or from his relatives. It is contended that dictionary meaning of re-exploration shows ‘surgery’ and, therefore, prior consent was a must. Reliance was placed on Paragraph 7.16 of Indian Medical Council (Professional Conduct, Etiquette and Ethics Regulations) 2002 which runs as follows:

“7.16 – Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed.”

It is further contended that hospital having not entered appearance inspite of notice, is not entitled to an exemption from the compensation and in this connection reliance was placed on the judgment in the case of Vidhyadhar-Vs-Mankikrao reported in AIR 1999 SC 1441. The relevant finding in the said judgment is as follows:

“Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”

Reference was made by the Ld. Advocate on judgments in the cases of Charan Singh-Vs-Healing Touch Hospital reported in (2000)7 SCC 668, Indian Medical Association-Vs-V.P. Shantha reported in (1995)6 SCC 651. Reliance was also made on the document dated 05.7.05 issued by Shri Jain Hospital and Research Centre contending that the same having not been produced before the Forum below, is not required to be considered.

Mr. P. Basu, the Ld. Advocate appearing for the Respondent No.1 Hospital argues that it is true that the Respondent No.1 did not contest in the Forum below but there is no pleading by the complainants alleging that medical documents were asked from the hospital or that the hospital was called upon to produce the documents indicated by the complainant though she stated that Colour Doppler test reports were not given. In the circumstances, it is argued by Respondent No.1, that in absence of such pleadings the prayer for drawing presumption on the basis of non-appearance of the respondent concerned, has no legs to stand upon.

Mr. R.K. Mukherjee, the Ld. Advocate for the respondents doctors contended that the death occurred within short period of surgery and the patient’s condition admittedly was serious and there is no material to show that LVEF of the patient was below 25% on the date of the operation. The allegation that LVEF was 25% on 25.6.05 has not been proved by the complainant and even if it was so, the case made out by the OPs that LVEF was much higher on the date of operation, does not get nullified only because ten days earlier it was at a lower level. Even in the complainant herself stated in paragraph 2(v) that on subsequent Colour Doppler Test LVEF was found 35% showing improvement in very short time. It is strongly contended by Mr. Mukherjee that the complainant has failed to examine any expert and to prove his allegation of medical negligence against OPs and, therefore no adverse order should be passed against the respondents.

After considering the above contention we find that admittedly the complainant has not examined any independent expert on the allegation of medical negligence and, therefore, this Commission is not to reach a conclusion on the allegation of negligence in the matter treatment of the patient and law in this regard in the case of Ajay Gupta-Vs-Dr. Pradeep Aggarwal reported in (2008)3 WBLR (CPNC) 159 was relied on. We also find that the allegation of the Complainant Appellant with regard to the reading of LVEF showed by Colour Doppler Test, was below the danger level on the date of the surgery, has not been proved. The allegation as regards the result of Colour Doppler Test much before the date of surgery, is not relevant and in respect of such allegation conclusive proof of reading of LVEF on or immediately before the surgery is relevant. Therefore, in absence of any expert’s opinion the said allegation of medical negligence cannot be upheld by this Commission.

With regard to the contention on re-exploration, as the case has not been made out by the complainant in this respect on the allegation of not obtaining consent before alleged operation, the OPs doctors categorically stated in their written version as also evidence that the patient party gave informed consent knowing fully well that the procedure would be high risk. Therefore, in view of such evidence no finding can be arrived accepting such allegation.

With regard to the allegation of non-appearance of hospital in the Forum below leading to presumption against case of the hospital for non-production of document, we find there is no pleading by the complainants wherein the hospital OP was called upon to produce documents indicated in the pleading and in absence of such pleading the conclusion as alleged by the appellant cannot be reached.

In view of the above findings we do not find any ground for interference with the impugned judgment. No appeal having been preferred by the OPs against the said judgment, the contention of the OPs against the judgment cannot be considered in the present appeal.

Therefore, the impugned order is affirmed, the appeal is dismissed and there will be no order as to costs. The LCR be sent back forthwith.







(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti)

MEMBER(L) MEMBER PRESIDENT