DR. S.S. GHOSH & ANR vs SAHADEO PRASAD ANJANA @ SAHADEO

These revision petitions have been filed by the petitioners against the order dated 29.07.2011 passed by the Jharkhand State Consumer Disputes Redressal Commission, Ranchi (in short, ''the State Commission'') in Appeal No. 493 of 2008 - Dr. S.S. Ghosh & Anr. Vs. Sahadeo Prasad and Appeal No. 497 of 2008 - Sahdeo Prasad Vs. Dr. S.S. Ghosh & Anr. by which, appeal of OP was dismissed and appeal of complainant was allowed.

Brief facts of the case are that Complainant/respondent got his daughter Rajni Srinath Manijhi admitted in Nandan Clinic of OP No. 2/Petitioner No.1 on 15.1.2005. Rajni Srinath Manjhi expecting her 2 nd child was under the care of Dr. Nilima Ghosh (Hazra)/OP No. 1/ Petitioner No. 1 from 6 th month of her pregnancy. She was brought to Nandan Clinic with pain in abdomen in the evening of 15 th January 2005 to be admitted for delivery of the child. However, by late evening Doctor Smt. Ghosh found that the patient was having obstructed labour pain resulting in foatel distress. She decided for caesarean delivery. As per the doctor, the consent was given only when the condition of the mother deteriorated. Admittedly, by 8.57 p.m., a healthy female child was taken out after successful L.C.S. at the clinic in presence of Dr. U.N. Verma. The crisis having been managed Rajni with her child was kept under treatment at Nandan Clinic of the OP Dr. Ghose. However, the patient developed haemolylic problems by evening of 16 th June 2005 during transfusion of blood. As per the OP she developed renal failure symptoms with urine output decreasing. An expert Dr. U.N. Verma examined the patient and found she developed circulatory failure and suppressed renal output inspite of non-presence of sepsis, abdomen infection, water etc. She was advised on 17.1.05 to be shifted to OM Sai Hospital, Bokaro along with detailed treatment summary of the patient. The complainant''s daughter remained there till 19 th January when she was advised to be shifted to Apollo Hospital Ranchi for better management of ARF septecemice, post C.S. (Haemolyticeal urenic syndrome). She remained under treatment at Apollo for fifteen days where she was operated again but could not recover. She breathed her last at 3.30 P.M. on 3 rd February, 2005. Alleging, deficiency on the part of OPs, complainant filed complaint before District Forum. OP resisted complaint and admitted that complainant''s daughter was admitted in their hospital on 15.1.2005 with a complaint of having pain in abdomen, accordingly she was admitted in the clinic things were observed normal but the patient developed features of labour pain and fetal distress which was duly informed to the attendant and thereby asked for consent for operation but the attendant although insisted for normal delivery and the consent for operation was accorded after when the condition of the patient deteriorated and in the meantime patient developed edematous congested CX edematous, cystoceles, thick meconium. The pros and cons of the caesarean operation was explained to the attendant and then after successful operation a female baby was taken out at 8.57 p.m. on the same day. The patient was anemic and had tissue edema. For better recovery in post-operative period, one unit of Blood was asked to arrange and accordingly the same was brought by them and during the Blood transfusion there was no complication, no untoward effect noted by after transfusion of Blood, there was fall of Blood pressure and increased pulse rate and no evidence of bleeding from any part of body was noted but watching the condition of the patient one more unit of Blood was asked to arrange and accordingly the same was arranged by them around 9 A.M. Blood report from Blood taken in the morning revealed that patient had hemolytic crisis as the patient''s renal output became less as such possibility of renal shut down considered and the same was given to understand their and awaring of the said facts the Guardian wanted to take the patient at Higher Centre, accordingly at their wish necessary arrangements were made for shifting the patient at Om Sai Hospital, Bokaro and a per records of OM Sai Hospital it transpires the patient was kept at Bokaro for two days but no records were submitted that the patient had cropped up many disease by 19 th January, 2005. However, records of Abdul Razzak Hospital transpires that the patient had renal shut down following hemolytic crisis as mentioned in the case summary. Denying any deficiency on their part, prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OPs to pay compensation of Rs.20,000/- and medical expenses Rs.10,000/- and cost of litigation of Rs.5,000/-. Both the parties filed appeal before State Commission and learned State Commission vide impugned order dismissed appeal No. 493 of 2008 filed by OP and allowed Appeal No. 497 of 2008 filed by complainant and compensation was enhanced to Rs.50,000/- and medical expenses were enhanced to Rs.50,000/- and Rs.2,00,000/- awarded for deficiency against which, these revision petitions have been filed.

Heard learned Counsel for the parties and perused record.

Learned Counsel for the petitioner submitted that learned District Forum committed error in allowing complaint without medical expert report inspite of depositing requisite amount with District Forum and learned State Commission further committed error in dismissing their appeal and allowing appeal of complainant without any cogent reason; hence, revision petitions be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

Perusal of order sheets of District Forum reveals that by order dated 27.7.2006, medical board was constituted of three doctors for submitting report on treatment by OPs. Learned District Forum while deciding complaint observed in its order as under: "It is to be noted here that vide order dated 2.5.2006 Medical Board was constituted and Rs.5,000/- was to be deposited by both parties for fee of the experts. However, order was not complied with by the complainant and it is very old case of the year 05; so with the consent of both the sides arguments was heard without expert opinion."

As per aforesaid observation, opinion could not be sought from Medical Board as parties did not deposit amount whereas perusal of noting dated 24.10.2008 reveals that both parties received back Rs. 2500/- deposited by them which makes it crystal clear that both parties deposited requisite fee of Rs. 2500/- for opinion of Medical Board. Learned District Forum should have sent treatment papers to Medical Board for obtaining opinion of Medical Board about deficiency in treatment by OPs, but learned District Forum inspite of depositing amount with District Forum wrongly observed that amount was not deposited; so, with the consent of parties, matter was heard without expert opinion which is totally contrary to record.

Learned State Commission in the impugned order has not considered this aspect at all and decided appeals mainly on the basis of certain over writings and cuttings in the treatment period. Perusal of impugned order does not make it clear at which place and what lines were over written by OPs in treatment chart and in such circumstances, deficiency cannot be attributed on the part of OPs in the absence of expert opinion.

It is not disputed that Rajni Srinath Manjhi was discharged from OP hospital on 17.1.2005 and she was shifted to Om Sai Hospital where she remained upto 19.1.2005 and from there she was shifted to Appollo Hospital, Ranchi where she died on 3.2.2005. Neither, OM Sai Hospital nor Appollo Hospital has been impleaded as a party, nor any treatment record of these hospitals has been placed on record by complainant to show that there was no deficiency on the part of these two hospitals and complainant''s daughter died only on account of medical negligence on the part of OPs. Learned State Commission has not considered this aspect also and has enhanced compensation to Rs.50,000/- from Rs.20,000/- and further awarded Rs. 2,00,000/- for negligence and deficient treatment to the deceased.

In the light of aforesaid discussion, it would be appropriate to remand the matter back to District Forum to obtain expert opinion from the Medical Board already constituted or if those doctors are not available, to constitute another Medical Board and take opinion from the Medical Board and also send treatment report of remaining two hospitals if filed by complainant before District forum to ascertain whether there was any negligence on the part of Ops in treating particularly when she delivered healthy child.

Consequently, revision petitions filed by the petitioner are allowed and impugned order dated 29.07.2011 passed by the learned State Commission in Appeal No. 493 of 2008 - Dr. S.S. Ghosh & Anr. Vs. Sahadeo Prasad and Appeal No. 497 of 2008 - Sahdeo Prasad Vs. Dr. S.S. Ghosh & Anr. and order of District Forum dated 21.10.2008 in CC No. 201/05 - Sahdeo Pd. Anjana Vs. Dr. Nilima Ghosh (Hazara) & Ors. is set aside and matter is remanded back to learned District Forum to decide the matter afresh after getting opinion of Medical Board as indicated above and after giving an opportunity of being heard to the parties.

Parties are directed to appear before District Forum on 5.4.2017.