State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027





S.C. CASE NO. FA/08/467



DATE OF FILING: 10.12.2008

DATE OF FINAL ORDER: 16.04.2009
APPELLANT


Dr. Bhanumati Mandal

Also known as Dr. Bhanumati Sarkar

W/o Mr. Swapan Kumar Sarkar

Residing at 13/8, K.C. Sen Road

Rishra, Hooghly, West Bengal



RESPONDENTS



1) Mr. Uttam Kumar Roy

9/14/35 A.C. Sen Road

Bakultala, Rishra

P.O. – Morepukur, Dist. – Hooghly

Pin – 712 250, West Bengal

2) Rishra Seva Sadan

P.O. & P.S. – Rishra, Dist. – Hooghly

West Bengal



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

MEMBER : MR. A.K. RAY

MEMBER : MRS. S. MAJUMDER



FOR THE APPELLANT : Mr. A.K. Sil, Advocate

FOR THE RESPONDENT : None appeared.





: O R D E R :


HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT





This appeal was filed against the order dated 11.11.08 passed by District Consumer Disputes Redressal Forum, Hooghly in CDF Case No.136 of 2002 whereby the complaint was allowed and the OP1 was directed to pay a sum of Rs.5 lacs together with an interest @ 9% p.a. on the decretal amount from the date of filing of the complaint within two months from the date in default whereof the OP was to pay a further interest @ 10% p.a. on the principal sum of Rs.5 lacs from the date of default till full recovery.

After the marriage between the complainant and Sushmita Roy since deceased (hereinafter referred as “the patient”) the first female child was born on 07.8.98 under the care of OP1 by lower segment caesarian insection. When the patient again conceived in or around August/September, 2001, the complainant and his wife went to the chamber of OP1 and started getting her treatment for proper delivery of the second child. As appears from the prescription issued by OP1 on 19.12.01 Expected Date of Delivery (EDD) was recorded by OP1 as 24.5.02 on the basis of the Last Menstrual Period (LMP) as 7th August. The first day of visit complainant paid Rs.50/- to the OP1 as her professional fees. From time to time the complainant took his wife to OP1 for periodical checkup and got all investigations done as advised by OP1 and on each occasion complainant paid Rs.50/- as fee of the OP1 doctor. On 01.5.02 during one of such visits the doctor expressed doubts over the EDD endorsed earlier. On 24.5.02, 12.6.02 and on 23.6.02 visits were repeated and on the request of the complainant OP1 doctor advised for USG on being asked by the complainant as to whether his wife should be admitted in the nursing home as EDD has passed already. The OP1 advised the complainant to admit the patient at Rishra Seva Sadan as and when the patient feels delivery pain. In the early morning on 02.7.02 when the patient expressed that she was feeling delivery pain she was forthwith taken to Rishra Seva Sadan and the complainant requested the Sister of the said nursing home to contact OP1 for delivery of the child. The complainant was told that OP1 had already advised to admit the patient and the patient was admitted forthwith and the complainant paid the dues. At around 4:30 A.M. on 02.7.02 the patient was admitted in the said nursing home and the complainant was told that OP1 had fixed 5:30 A.M. for operation. The Anaesthetist Dr. M.N. Basu also reached at about 5:40 A.M. and soon thereafter OP1 came to the OT. Complainant expressed that they would go for ligation. At about 6:30 A.M. one Sister came out from the OT and informed that female baby had been delivered and both the baby and the mother were alright. At about 7:00 A.M. when the Sister came out from OT she gave a prescription to the complainant to bring the medicines which was done duly. The complainant was informed that there was some bleeding and for that blood might be required. On the advice of OP1 the OP2 issued requisition for fresh blood but the persons who were sent to bring blood from Kolkata informed that the word ‘fresh’ prevented delivery of blood by the blood bank as fresh blood is never available in any blood bank. Corrected requisition was issued and ultimately blood could be collected from the blood bank and was handed over to the nursing home authority. At about 12:00 O’clock patient party was called in the OT and were told that the condition of the patient was very bad. The patient was thereafter shifted to ICCU and was ultimately declared dead at 2:20 P.M. Alleging medical negligence complaint was filed for relief of Rs.5 lacs as compensation.

OP1 and OP2 filed separate written versions. Complainant was examined. Evidence on affidavit was filed by Dr. Sushil Ranjan Das at the instance of the complainant. This witness was the superintendent of the OP2 nursing home. Questionnaires were filed by OP1 for answers from witnesses of the complainant. OP1 filed her evidence on affidavit and was cross examined by the complainant. Dr. Dipak Banerjee filed his evidence on affidavit and was cross examined. Dr. Krishna Mukherjee (OPW2) filed her evidence on affidavit and was cross examined. Dr. Sujata Bhattacharjee (OPW3) filed her evidence on affidavit and was cross examined. Dr. M.N. Basu filed his evidence on affidavit and was cross examined. Dr. Asim Kumar Sinha filed his evidence on affidavit.

Heard Mr. A.K. Sil, the Ld. Advocate for the Appellant. None appeared on behalf of the Respondents at the time of hearing, though on behalf of Complainant/Respondent one Ld. Advocate entered appearance by filing ‘Vakalatnama’.

The first contention of the appellant is that in the present complaint though the doctor and the nursing home have been made OPs but in the prayer of the complaint relief was prayed to pass necessary order directing the OP1 to pay Rs.5 lacs to the complainant as a comprehensive compensation. There is no prayer for any relief against the OP2 nursing home. It is argued by Mr. Sil that the law is settled that when admittedly the OP1 doctor was an employee of the OP2 nursing home and treated the patient in question as an employee of the nursing home, even for any fault/negligence of OP1 vicarious liability is of the nursing home, the employer and, therefore, compensation cannot be prayed from the OP1 doctor as for any negligence or deficiency in service of the OP1 her employer the nursing home is responsible to pay compensation. In the facts of the present case as no relief has been asked for from the nursing home the complaint is to be dismissed as no compensation can be directed against the OP1 doctor. In support of such contention law has been relied on as decided in the case of Cassidy-Vs-Ministry of Health reported in 1951(1) All ER 574 and Launchbury-Vs-Morgans reported in 1971(2) QB 245.

In this connection it is further argued that OP1 though treated/advised the patient at early stage but at the time of delivery the patient was admitted in the OP2 nursing home and the OP1 extended treatment as an employee of the OP2 and the patient did not make any payment to OP1 and all payments were made by the patient party directly to the nursing home and, therefore, there being no hiring of service of OP1 by the patient on payment of any consideration, the complainant is not a consumer so far as OP1 doctor is concerned. Reliance was placed on the judgments in the case of Basant Seth-Vs-Regency Hospital Ltd. reported in 2002(2) CPR 62, Smt. Rekha Gupta-Vs-Bombay Hospital Trust reported in 2003(2) CPJ 160, Dr. K.G. Krishnan-Vs-Praveen Kumar (Minor) reported in 2003(3) CLD 705, S.C. Mathur-Vs-All India Institute of Medical Sciences reported in 2006(3) CPJ 414, Indian Medical Association-Vs-V.P. Shantha 1995(3) CPJ 1 and Rabinarayan Sahoo-Vs-Dr. B. Jayaram Patra reported in 2004(1) CPJ 3.

With regard to wrong assessment of EDD by OP1 it has been contended that the patient herself had given wrong LMP which caused the resulting mistake in assessment of EDD. Only from the USG reports EDD could be correctly assessed and these USG reports were suppressed by the complainant for misleading the Ld. Forum. It is stated that these USG reports were disclosed by OP1 doctor in the Forum below in support of her contention which shows attempt to suppress facts by complainant.

With regard to the treatment of the patient on the date of delivery, certain irregularities have been alleged against the OP1. In respect of those Mr. Sil, the Ld. Advocate contended that the surgery of the concerned patient was not a pre-scheduled elected surgery in this case as the patient admittedly was brought to the nursing home at 4:30 A.M. and on urgent basis surgery had been undertaken by OP1 which prevented the OP1 to get everything arranged well ahead as can be done in a case of elected surgery.

This argument has been advanced in the background of the allegation of the complainant that no prior arrangement was made for blood which could be required to be transfused after the surgery.

The Ld. Advocate for the appellant contended that this was a case of post-partum haemorrhage which resulted from non-contraction of the uterus. In this case senior doctors helped to combat the situation when urgency occurred and the blood for transfusion could not be procured even within any reasonable time. It is argued that such non-contraction of uterus occurs for various reasons including the birth of a big baby or long labour allowing delivery pain to continue for a long period. In the case of the patient both said grounds were existing In support of this proposition reliance was placed on Complete Home Medical Guide by American College of Physicians. Reliance was also placed on the USG reports showing the baby was described as a big baby with weighing 3600 gms.

Further contention of the appellant is that the nursing home being under the management of municipality the principles applicable to government hospitals are to apply in support thereof.

The last contention of the appellant is that the OP1 examined Dr. Asim Kumar Sinha as an expert and he was not even cross examined by the complainant. It is also argued that the complainant having not examined any expert cannot get any relief. Reliance was placed on the judgments in the cases of K. Sadanandan-Vs-Lisie Hospital reported in 2006(1) CPJ 24, Saleemuddin-Vs-Dr. Sunil Malhotra reported in 2006(2) CPJ 348 and Upasana Hospital-Vs-S. Farook reported in 2007(2) CPJ 235. In respect of this contention reliance was placed on the judgments in the cases of Bihar State Housing Board-Vs-Prio Ranjan Roy reported in 1997(6) SCC 487, Ghaziabad Development Authority-Vs-Balbir Singh reported in 2004(5) SCC 65, Dr. Harkanwaljit Singh Saini-Vs-Gurbax Singh reported in 2003(1) CPJ 153 and Martin F. D’Souza-Vs-Mohd. Ishfaq reported in 2009(1) CPJ 32.

Considering the aforesaid contentions and perusing the materials on record we find that OP1 appellant is an employee of OP2 nursing home and OP1 has admitted that she was an employee of OP2. The OP has stated in her evidence on affidavit that she joined OP2 as an employee thereof in the Gynaecology & Obstetrics Department and since then she is attached to the said OP2 and she was also practicing of her own. OP2 in their written objection stated that the OP1 was attached to OP2 since around 1990 and she used to get Rs.3500/- per month from the OP2 as remuneration as RMO and besides that she used to get part of the operation charge in each operation which was done by her. In her evidence the OP1 admitted that the patient was examined by OP1 in her antenatal state for the first time at her chamber on 19.12.2001 and was checked up thereafter from time to time on 23.01.02, 27.02.02, 03.4.02, 01.5.02, 24.5.02, 12.6.02 and 23.6.02 and she examined the patient at her chamber and at Rishra Medical Service and was paid fees of Rs.50/- per visit by the patient. Admittedly on 02.7.2002 the patient was admitted in OP2 nursing home. At 4:30 A.M. and surgery was performed for delivery of the baby at 5:30 A.M. The argument of the appellant is that in above facts when the patient was admitted in the OP2 nursing home surgery by OP1 was as an employee of the OP2 nursing home and she was not paid by the patient party for such treatment and surgery and thus the complainant is not a consumer as services of OP1 was not hired nor any payment was made to OP1 for such treatment. The case of the complainant in this respect is that the OP1 advised that patient should be admitted in OP2 nursing home as soon as she feels delivery pain and accordingly on 02.7.02 the patient was admitted in OP2.

From the above materials we find that admittedly OP1 advised at the time of delivery of the first baby of the deceased patient and she was advising/treating the patient when she conceived the second child. For the entire period of pregnancy the OP1 advised/treated the patient. OP1 advised the complainant to admit patient in OP2 nursing home when the patient would feel delivery pain. When she was admitted to the OP2 nursing home after feeling delivery pain, OP1 was informed and performed the surgery. Therefore, it is not a case that a patient not knowing OP1 was admitted in OP2 and OP1 treated the patient as an employee of OP2 nursing home. In this case the OP1 was looking after the patient during the period of pregnancy and on her admission for delivery OP1 performed the surgery. Therefore, it is apparent from the facts available that the patient hired the services of the OP1 and admittedly on payment directly to her for the period of pregnancy. Even after admission and when surgery was performed, in terms of employment the OP1 was to get part of the operation charge in each operation done by her. This disclosure by OP2 in written objection has not been denied by the OP1 in course of her evidence. Therefore, the patient was a consumer so far as OP1 is concerned. Law cited by the appellant also does not help the appellant in view of above findings.

We considered the question raised by the appellant as regards liability of the nursing home in case of negligence or deficiency in service by OP1 an employee of the nursing home. In view of the law cited by the appellant in the cases of Cassidy-Vs-Ministry of Health (Supra) and Launchbury-Vs-Morgans (Supra) we hold that the nursing home is liable for the negligence or deficiency in service of its employee doctor. Special reference may be made in this respect to the observations made in page 586 in the case of Cassidy (Supra) and in page 253 in the case of Launchbury (Supra) as also other judgments of the Hon’ble National Commission mentioned hereinabove.

With regard to the USG reports the allegations have been made by both sides and evidence have been adduced but in the facts of the case it is not possible to decide as to whether the OP1 duly advised taking of USG reports or whether the complainant intentionally suppressed such advises as also the USG reports. Moreover, this aspect has not been shown as having an impact on the ultimate fate of the patient particularly when it has not been proved that the mistake in assessing EDD had any role to play in the matter of death of the patient.

With regard to the requirement of advising for arrangement of blood well ahead of the surgery, we find that the defence of the OP1 appellant is that the surgery not being a pre-scheduled elected surgery, prior arrangements were not possible and so there was no deficiency. We find from admitted facts that the patient was being examined by the OP1 from time to time during the entire period of pregnancy and the patient was advised by OP1 to take admission whenever delivery pain was felt. Thus following such advices admission was taken at 4:30 A.M. on 02.7.02 when delivery pain was felt by the patient and in the circumstances the defence of the OP1 that it was not an elected surgery cannot stand. OP1 herself stated in her cross examination that she had not advised the patient on 12.6.02 for undergoing elective caesarian operation. She further stated that she thought that the transfusion of blood was necessary during delivery of the child through caesarian operation. OP1 admitted delay in getting blood from blood bank but she did not ask for blood donation immediately and thereafter contradicted the same. OPW2 Dr. Krishna Mukherji stated that anesthetist had advised for requisition of blood. Moreover, in respect of blood transfusion when the bleeding was detected and the patient was having good number of relatives and friends available, no explanation is forthcoming from OP1 as to why fresh blood transfusion was not advised after matching the blood when it was known to OP1 that to fetch blood from Kolkata would take substantial time and, thereafter even when such blood was not coming and bleeding continued.

With regard to the defence of the OP1 that she took help of senior doctors to combat the situation, it does not absolve the OP1 from her responsibility as admittedly she was in charge of the surgery and when the condition of the patient became critical, she took advices from other senior doctors. Those others senior doctors were not approached by the patient party for treatment. Therefore, this defence of the OP1 also has no strength. The evidence of the said other doctors do not explain the delay in advising for blood transfusion. Records including the evidence show clearly that OP1 failed to make arrangement for blood for transfusion not only before the surgery but also even when bleeding continued and the patient was suffering for such uncontrolled bleeding. Evidence is also clear that death occurred due to such bleeding and no transfusion in time.

With regard to the allegation of the OP1 that the OP2 nursing home was under management of the municipality we do not find any material disclosed in support of such contention. The only material in this respect is the written objection by OP2 where it is stated that OP2 is a hospital recognized by the State Government and the same is run and managed by an Administrative Committee of which the Chairman of the Rishra Municipality is the President. These facts so pleaded do not make out a case that the nursing home is under administration of municipality as alleged. In such view of the findings on facts the cases cited in support of such contention do not have an application.

With regard to the reasons stated for non-contraction of uterus relying on Complete Home Medical Guide of the American College of Physicians, we find that those reasons are common reasons as big baby and long labour are not at all uncommon. Therefore, explanation ought to have been given by OP1 as to why blood for transfusion was not arranged before hand.

With regard to the evidence of the expert of the OP1 we do not find any disclosure of any acceptable material which justifies the conduct of the OP1 in not arranging for blood for transfusion to combat a situation of bleeding. The OP2 is also equally liable for the same.

In the circumstances we do not find any irregularity in allowing the complaint by the Forum below directing payment of compensation. But as both the OPs are jointly and severally liable particularly when OP1 was admittedly an employee of the nursing home, the compensation is payable by both the OPs. But complainant has not asked for any compensation from OP2. Therefore, OP1 will remain liable to pay compensation of half of the amount i.e. Rs.2,50,000/- and such payment is to be made by OP1 to the complainant within a period of two months from the date of this order in default whereof complainant will be entitled recover the amount from the OP1 along with interest @10% p.a. for the period of default. In respect of the direction of payment of interest on the decretal amount from the date of filing of the complaint, we are of the opinion that when compensation is directed to be paid, said interest should not be imposed on the OP. The appeal is allowed in part and the order of the Forum below is modified to the said extent.





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

MEMBER(L) MEMBER PRESIDENT