DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 232 of 2022.

 

1. Sri Rahul Deb,

S/O. Sri Swapan Kumar Deb,

Of Town Pratapgarh, Road No.-1,

Near Gangail Road,

P.O.-Agartala, Pin-799001,

Dist. West Tripura....................…....…...........................Complainant.

 

-VERSUS-

 

1. Dr. Dilip Kr. Bhaumik, 

Prop. Of Bhaumik Polyclinic & Nursing Home,

Of A.A. Road, Dhaleswar, Kalyani,

P.O.-Dhaleswar, Agartala, Pin-799007,

Dist.-West Tripura.…...................................................Opposite Party.

 

    __________PRESENT__________

 

 SRI GOUTAM DEBNATH

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA. 

 

DR (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

SRI SAMIR  GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA. 

 

C O U N S E L

 

 

For the O.P. : Sri Sisir Chakraborty, 

F I N A L     O R D E R

1. Sri Rahul Deb, herein after called the Complainant has filed this complaint against Dr. Dilip Kr. Bhaumik alleging inter alia that the mother, Smt. Sukla Chakraborty, since deceased, had been suffering from uterine fibroid and was under treatment of Dr. Bhaumik.    

On 21/05/2020, she was admitted in Bhaumik Nursing Home under Dr. Dilip Kr. Bhaumik as per advise of Dr. Bhaumik. Out of total fees of Rs.40,000/-(Forty thousand), Rs. 20,000/- was paid as advance. On 22/05/2020 at 4.45 p.m. operation was conducted on her but thereafter since her condition deteriorated, she was shifted in TMC Hospital, Agartala. The O.P. paid Rs.6,000/-(six thousand) for shifting the patient. During operation there was fluctuation of electricity as in the Bhaumik Nursing Home no proper infrastructure was available to perform such operation. On 04/07/2020 the patient died mainly because of non availability of infrastructure in the Bhaumik Nursing Home. Hence, it is a clear case of medical negligence and consequent deficiency in service.

3. O.P. submitted written objection wherein the O.P. denied and disputed the fact of non availability of infrastructure and also denied any negligence on the part of the O.P. It is pleaded that the patient Smt. Sukla Chakraborty developed Cardiac Arrest at the end of surgery probably due to peritoneal stimulation during closure of abdomen along with co-morbidity which shows that there was no negligence or deficiency in service. Rather, O.P. arranged to shift the patient to TMC for further management by giving adequate Oxygen backup and accompanied by Nursing staff. 

4. The Complainant submitted evidence on affidavit along with medical documents of Bhaumik Nursing Home & TMC, Agartala. The Complainant also submitted a copy of newspaper wherein news was published as per allegation of the Complainant that there was negligence in the  treatment of the patient Sukla Chakraborty. The Complainant lodged Ezahar with O/C, East Agartala P.S. against the O.P. a copy of such FIR is also submitted. 

5.  During the course of hearing the Complainant sought  adjournment on a number of occasion and changed his  lawyer thrice. Ultimately argument was heard on 25/08/2023 & 04/10/2023. Hence, the case could not be disposed off in time.  

6.  On the basis of matters on record and argument advance, the following point is taken up for discussion and decision: 

  I). Whether the O.P. is responsible for medical negligence or conducted surgical operation in the Bhaumik Nursing Home without proper infrastructure? 

     DECISION AND REASONS FOR DECISION:-

7. The argument of Learned Counsel of the Complainant that as per Act,  Tripura Clinical Establishment Act, 1976 U/S. 2(b) such operation can not be conducted in polyclinic  and that the Registration of Bhaumik Nursing  Home was renewed in the year, 2021 but such renewal was given under the Act, 1976, although in the mean time Tripura Clinical Establishment(Registration of Regulation) Act, 2018 was passed, are not acceptable for the fact that U/S. 28 of the 2018 Act, the Act of 1976 was repealed. Meaning thereby it is clear that while renewing the license of the Nursing Home the format for such renewal was used which was printed under the  Old Act of the year, 1976 U/S. 11 of the Act, 2018 for registration or carrying on the Clinical Establishment mandatory conditions regarding infrastructure are mentioned. Meaning thereby at the time of renewal of the license the licensing Authority being satisfied of proper infrastructure renewed the license. 

8. In the written statement submitted by the O.P. there is a clear picture of infrastructure including Oxygen facility. Further, after such allegation of the Complainant a team of doctors was constituted by the Health Department for proper enquiringly. Such team physically visited the Bhaumik Nursing Home and TMC, Agartala consulted all documents. For convenience the report of medical team is reproduced below:-                                                                                

8. 1). Dr. Dilip Kumar Das(Chairman), Dr. Dhruba Banik(Member) and Dr. Subhasish Das(Member) of the team sat in the chamber of Dr. Dilip Kumar Bhaumik at Bhaumik Nursing Home and we have taken the verbal as well as written statements of the following persons who were involved in surgery namely Dr. Dilip Kumar Bhaumik(Surgeon), Dr. B.K. Saha(Assistant), Dr. Kongchai Chowduri(Anaesthiologist), Smt. Puja Sukla Das(Staff nurse) and Sri Khokan Sarkar(O.T. Assistant) on 10/07/2020 at 11.30 A.M. We have thoroughly gone through the case sheet of the patient Smt. Sukla Chakraborty, C/O. Rahul Deb of Town Pratapgarh, Near Gangail Road, P.S.-East Kotwali, Agartala, Tripura(West).

8. 2).    Thereafter, we have visited Tripura Medical College and BRAM Hospital, Hapania and thoroughly examined the case sheets of the patient on 10/07/2020 at 2.00 P.M. and enquired about the patient from Dr. D. P. Chakraborty, Professor, Deptt of Medicine, under whom the patient was admitted in ICCU, MICU and General Ward and who was looking the patient till her death. 

8.  3).    After through scrutinization, our observation is that the patient was admitted on 21/05/2020 at 09 .00 A.M. with a huge fibroid uterus for operation at Bhaumik Nursing Home, Kalyani, Agartala. She was a known case of Hypertension and Diabetes mellitus and was under treatment and at the controlled stage before surgery. All investigations and parameters were within normal limits. Operation was planned on 22/05/2020 at 5.00 P.M. with one unit of cross matched blood and Pre anaesthetic check up was carried out before surgery. 

8. 4).    Operation started at 5.00 P.M. on 22nd May, 2020 under spinal anaesthia. Initial period of operation has uneventful but at the end of surgery patient developed Cardiac Arrest. Patient was given Cardio-Pulmonary Rescusitation(CPR) and patient partially recovered from Cardiac arrest.  Patient was intubated to maintain Oxygenation and supplementary oxygen was given to maintain normal Oxygen saturation(Fi02). As the patient had an attack of cardiac arrest the Nursing Home authority planned to shift the patient on supplementary oxygen to TMC and BRAM Hospital for better management and by this time ambulance was arranged to shift the patient. After ambulance was arranged patient was shifted to TMC at 09.30 P.M. on 22/05/2020 along with supplementary oxygen given in intubated condition with T-piece. 

8. 5).    The patient was received at ICCU of TMC and BRAM Hospital at 10.05 P.M. with Glasgow Co Score(GCS) level of E1VTN1 with BP-150/90 mm Hg Respiratory rate was 24/min. Oxygen saturation was 90-95% with supplementary oxygen. 

8. 6).    Afterwards, in early morning, at 4.30 A.M. on 23/05/2020 patient developed GTCS(Generalised Tonic Clonic Seizure) with Respiratory Failure and put on Mechanical Ventilation. There after treatment was continued in ICCU and medicine ward of TMC for 44 days but the GCS almost remained same. During the period of treatment all necessary investigations including CT scan and MRI was done. 

8. 7).    On 04/07/2020 at 05.45 A.M. Patient developed cardiac arrest again and SP02 was 40%., Pulse and BP was not recordable and CPR was done but patient could not be revived and was declared dead at 08.30 A.M. On 04/07/2020.

8. 8).      The final diagnosis is sudden Cardiac Death due to Anoxic Encephalopathy following Post Hysterectomy Cardiac Arrest and sepsis. Post Mortem report is pending.  

8. 9).    In our opinion the patient developed cardiac arrest at the end of Surgery, probably due to peritoneal stimulation during closure of abdomen along with co-morbidity from which patient was resuscitated and revived initially and for better management, patient was shifted to TMC and BRAM Hospital, Agartala. During transportation patient might have developed Respiratory Insufficiency followed by Hypoxic Encephalopathy. More over during prolonged stay at ICCU/MICU/Medicine Ward of TMC and BRAM Hospital patient also developed Sepsis which has also aggravated the patient's critical condition leading to death of the patient.

9.  Therefore, we fail to agree with allegation of the Complainant and argument advanced by Learned Counsel of the Complainant that there was no proper infrastructure including Oxygen backup and the patient died due to lack of infrastructure in the Bhaumik Nursing Home or any negligence before or during the time of surgical operation even at the time of shifting the patient to the TMC, Agartala. There was any act of medical negligence. The report of the medical team shows that the patient was admitted with a huge fibroid uterus and patient was a known case of Hypertension and Diabetes mellitus and was under treatment and also that the patient was under controlled stage before surgery. All investigations and parameters were within normal limits. The initial period of operation was uneventful but at the end of surgery the patient developed Cardiac Arrest and was given Cardio-Pulmonary Rescusitation and the patient also partially recovered from Cardiac Arrest. The patient was given oxygen support but the patient had  another attack of cardiac arrest. As such the Nursing Home Authority shifted the patient to TMC, Agartala on supplementary oxygen for better management. But in the morning on 23/05/2020 in TMC, the patient developed Generalised Tonic Clonic Seizure with Respiratory Failure and was put on Mechanical Ventilation. The treatment continue for 44 days but on 04/07/2020 at 5.45 a.m., the patient developed cardiac arrest again and this time the patient could not be revived and was declared dead at 08.30 A.M. on 04/07/2020. The enquire team of doctors further opined that the patient developed cardiac arrest at the end of Surgery, probably due to peritoneal stimulation during closure of abdomen along with co-morbidity. Further during stay at TMC the patient also developed sepsis which has also aggravated the  critical condition leading to death of the patient.                                                                                                    

10. Hence, the expert team of doctors found no medical negligence on the part of the O.P. or any dearth of infrastructure in the Nursing Home of the O.P.

We are not oblivious of the law that expert opinion may not be accepted as final decision, rather, the Judicial or Quasi Judicial Authority has to come to its own finding based on other evidence as well.

12.      A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam V. Friern Hospital Management Committee [(1957) 1 WLR 582:: (1957) 2 All ER 118]). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A situation, thus, cannot be countenanced, which would be disservice to the community at large, by making doctors think more of their own safety than of the good of their patients.

13.        This Court in another judgment in Jacob Mathew v. State of Punjab [(2005) 6 SCC1] dealt with the law of negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation of a degree of care and caution, but there could be no assurance of the result. A physician, thus, would not assure a full recovery in every case, and the only assurance given, by implication, is that he possesses the requisite skills in the branch of the profession, and while undertaking the performance of his task, he would exercise his skills with reasonable competence. Thus, a liability would only come, if (a) either the person(doctor) did not possess the requisite skills, which he professed to have possessed; or (b) he did not exercise, with reasonable competence in a given case, the skill which he did possess. It was held not to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. In  the said opinion, a reference was, once again, made to the Halsbury's Laws of England as under:

    To Establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.            

14. From the evidence on record including the report of team doctors and legal position on the law of medical negligence expounded by the Hon'ble Supreme Court and the Hon'ble National Commission, we do not find any medical negligence on the part of the O.P. As such we decide the point taken above in the negative.                              

15. In the result the case is dismissed. However without cost. 

         Supply a certified copy of this final order to both the parties free of cost.                   

 Announced.

 

 

SRI  GOUTAM DEBNATH

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

 

 

DR (SMT)  BINDU  PAL

MEMBER, 

DISTRICT CONSUMER DISPUTES 

REDRESSAL COMMISSION, 

WEST TRIPURA,  AGARTALA

 

 

SRI SAMIR  GUPTA

MEMBER,

 DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA.