For the Appellant             Ms Meenakshi Jain, Advocate           

For the Respondents         NONE (Ex parte on 26.12.2023)               

ORDER

1.      This appeal under section 19 of the Consumer Protection Act, 1986 (in short, the ‘Act’) seeks a review of the order dated 31.03.2022 of the State Consumer Dispute Redressal Commission, West Bengal, Kolkata (in short, the ‘State Commission’) in complaint case no CC/67/2015 dismissing the complaint.

2.      The brief conspectus of facts according to the appellant are that her son Sourav Nanda was admitted to the respondent hospital following a road accident in which he was hit by a motor cycle on the intervening night of 26-27.04.2014 at 1.20 am with severe head injuries with bleeding from the right ear and nose with a lacerated cut injury on the right elbow. The patient was put on ventilator around 5 am and his condition remained critical. According to the appellant, no CT Scan was performed till 27.04.2014 or provided to her although allegedly the CT Scan showed multiple traumatic contusions on bilateral frontal and partial lobe, fracture base of skull extending into right auditory meatus and rupture of right tympanic membrane. A doctor saw the patient after 13 hours of admission. The patient’s Glasgow Coma Score (GCS), blood pressure and heart rate were monitored and showed that he was struggling. After a lapse of nearly 36 hours of conservative treatment at the hospital, the appellant consulted two neurosurgeons, Dr Sandip Chatterjee at Park Clinic, Kolkata and another at Apollo Gleneagles Hospital, Kolkata who opined, based on admission papers, that “Decompressive Craniectomy” operation was immediately required. However, the treating doctors did not consider surgery and only conservative management of the patient was done. On 29.04.2014 at 6 am the patient had sudden bleeding and expired at 8.25 am. According to the appellant, no expert doctor or neurologist examined or supervised the patient even though the respondent hospital had advertised itself as a speciality hospital and the respondent nos. 1 to 3 have failed to justify their line of treatment which was in complete deviation from the standard medical practice. It is alleged that the patient died due to grave medical negligence and deficiency in service and hence complaint no. CC/67/2015 was filed before the State Commission on 25.02.2015 which came to be dismissed on contest vide order dated 31.03.2022. This order is impugned before this Commission with the prayer to set aside the order and grant the compensation of Rs 50,00,000/- as prayed for in the complaint with any other order as deemed appropriate.

3.      I have heard the learned counsel for the appellant. Counsel for the respondent remained unrepresented despite notice and was placed ex parte. His submissions before the State Commission have been considered his final submission. I have perused the material on the record carefully.

4.     IA no.10299 of 2023 is an application for condonation of delay of 156 days as per the version of the appellant. However, the Registry has reported that the delay is of 187 days.  In the interest of justice, the same is condoned.

5.     The respondent’s contention before the State Commission was that the patient had been admitted with very severe head injuries and that the situation had been explained in detail to the elder brother at the time of admission who consented to the treatment on behalf of the family.  The consent was part of the record of the Progress Report of the patient while in the hospital. As per the Progress Report, the condition of the patient was regularly monitored and based on his vital parameters, CT Scan on 27.04.2014 and inputs of doctors, medication administered. However, in view of his grave injuries, his condition worsened and he expire.

6.      The order of the State Commission held that the onus of proving the alleged negligence lay on the appellant including that the respondent no. 1 hospital lacked proper medical facilities and medical experts which had not been discharged by her and is therefore unsustainable. It has relied upon the consent given by the elder brother of the deceased patient on behalf of the family at the time of admission of the patient in the respondent hospital for the treatment after being explained that the condition of the patient was critical and that he could die at any stage. The State Commission has therefore held the appellant’s contention that no expert doctor examined the patient or that the hospital did not release the patient to be shifted to another hospital to be not valid. It has also held that the appellant has not brought on record the evidence of the two neurosurgeons she consulted who advised immediate “Decompressive Crematory” operation. It has also held that the progress report of the patient reveals that CT scan of the brain was done and that the injury had caused permanent damage. The State Commission relied on the Hon’ble Supreme Court’s judgment in Kusum Sharma Vs. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480 to hold that “it is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. Filing such complaints under the Consumer Protection Act against doctors on the rise and in many cases these being frivolous, the Hon’ble Supreme Court said “Courts have to be extremely careful to ensure that unnecessarily professionals are nt harassed and (or else) they will not be able to carry out their professional duties without fear.”

7.      From the foregoing it is evident that the deceased son of the appellant was admitted in the respondent no. 1 hospital with severe injuries to the head and brain. The treatment of the deceased was consented to by the appellant on the basis of a written undertaking through which the criticality of the patient was explained by the treating doctor. As per the progress report, a CT Scan was undertaken and the vital parameters of the patient were monitored. Medications based upon the patient’s condition were administered or discontinued. However, the patient ultimately succumbed to his injuries. As regards the opinion of the neurosurgeons consulted by the appellant based on reports of the hospital, there is no document or even affidavits by them on the record. The contention of the appellant that a decompressive craniectomy was advisable based upon the opinion of these doctors which the respondents did not consider, choosing instead to proceed on a conservative line of treatment based on the medical condition of the patient, has not been supported by any expert opinion. The material brought on record by the appellant is medical literature pertaining to decompressive craniectomy for reduction of intracranial pressure which does not constitute an expert opinion on the medical condition of the deceased patient. The respondent has also brought on record certain literature relating to principles of internal medicine and ‘Concussion and Other Traumatic Brain Injuries’. It has also brought on record details of the Progress Report of the patient for the period the patient was admitted and under treatment which indicates the parameters and vitals and treatment administered. As per these documents, on 27.04.2014 at 3 am there is an entry mentioning CT scan and no fracture of C Spine. Therefore, the contention of the appellant that the respondent hospital lacked infrastructure cannot be accepted. It is on this basis that the appellant admittedly sought opinions of other neurosurgeons. The prognosis after the CT Scan has been recorded as “Very Poor” and the GCS as “gradually deteriorating”. There is a record of the patient being seen by doctors and discussion with other doctors while proceeding with the treatment.  The contention of the appellant that the patient was not attended to or that the hospital lacked proper infrastructure cannot be accepted.

8.      While it is a legitimate expectation of the appellant that the patient was entitled to medical treatment commensurate with the reputation enjoyed by the hospital, and it is not the case of the appellant that the respondent hospital is guilty of negligence in falsely representing that doctors were specialists, the allegation of medical negligence that the patient was neither seen by a specialist nor a medical procedure/intervention for decompressive craniectomy undertaken has to be considered in the light of the standard of care provided. The Hon’ble Supreme Court has held in Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Ors., (2009) 9 SCC 221 in Civil Appeal No. 1727 of 2007 decided on 07.08.2009 that professional competence of the highest order is not expected from every doctor but he must use reasonable degree of skill of his profession in diagnosis and treatment and that failure to use due skill in diagnosis, resulting in wrong treatment amounts to negligence. It has also been held that where there are more than one method of treatment, use of one in preference to the other is not negligence. In complicated cases, inference of negligence needs to factor in whether the doctor performed his duty to the best of his ability. In the present case, while decompressive craniectomy may have been a possible method of treatment, it would be logical to expect that the option would be contingent on primarily the medical condition of the patient which only the treating doctors were in the best position to assess and determine. The appellant’s averment that the respondents were negligent therefore cannot be accepted in light of the foregoing.

9.      In view of the foregoing discussion and in the facts of the case, the contentions in the appeal cannot be accepted. I do not find any justification to disagree with the conclusion of the State Commission and see no reason to interfere with its order. The appeal is dismissed with no order as to costs.

10.   Pending IAs, if any, also stand disposed of with this order.