Jyoshna Rani Ghosh vs M/S Sanjukta Curatives

IN this revision, there is challenge to order dated 31.12.2007, passed by Orissa State Consumer Disputes Redressal Commission, Cuttack (short, "State Commission ").

BRIEF facts are that petitioner no.1/complainant no.1 is widow of deceased Bijay Kumar Ghosh, whereas petitioner nos.2 to 6/complainant nos.2 to 6 are children of the deceased. Shri Bijay Kumar Ghosh, died in the Nursing Home of respondent/opposite party, which is managed and owned by Dr. Baidya Nath Mishra, a specialist in medicine. The death of deceased occurred at 6.30 a.m. on 14.9.2003, while undergoing treatment in the Nursing Home. Deceased was an operator (Group-C) under Telecom Department, Cuttack drawing a salary of Rs.9,939/- p.m. It is stated that on 13.9.2003, deceased complained of urinary troubles and for best treatment got himself admitted in above Nursing Home at 8.30 p.m. His was a known case of diabetes. Two hours after his admission, attending Dr. B.N. Mishra started medical check-up and treatment, initially reporting that no treatment is necessary. He was kept in-charge of a pharmacist who drained some food particles and fluid from his abdomen through a syringe and tube. Though staff of Nursing Home was insisted upon to call the doctor but staff did not give any call to the doctor nor did any doctor came to see the patient. The health condition of the patient deteriorated and body temperature rose high and fell. The blood pressure gave fluctuating reading. Later on, patient collapsed to death. Dr.B.N.Mishra at 6.30 a.m. declared him dead. In this background, petitioners have sought to be compensated with a sum of Rs.17,77,894/- in all.

RESPONDENT /opposite party in its written statement admitted that deceased was brought to their Nursing Home about 9.00 p.m. on 13.9.2003. Immediately after his arrival, respondent examined him and found him to be seriously ill. Since, patient was suffering from Diabetes Mellitus for last 18 years, he had developed urinary tract infection during last ten days and was suffering from fever with rigor for last three days. Respondent noted all these findings, including the provisional diagnosis of septicaemia in the treatment sheet of patient ''s file. Respondent also explained the seriousness of patient ''s condition to Mr.Debasis Ghosh, the patient ''s son. Certain essential pathological tests wre immediately done like I.C.I. for malaria, which was found to be negative, Random blood sugar was estimated which was found to be high (253 mg %). The treatment started at 9.30 p.m. However, plea of respondent is that he also advised further investigations to be done but at 9.30 p.m., it was not possible to do the same. Hence, they were scheduled to be undertaken next morning. Due to seriousness of the case, respondent instructed his pharmacist on night duty, Mr. Madan Mohan Mandal to check the patient from time to time throughout the night and report to him if there is any deterioration in the patient ''s condition. In fact, Mr. Mandal had been with the patient almost whole of the night, which is evident from records. At 6.00 a.m., patient suddenly had rigor with very high temperature which went upto 104 F. After recording the temperature, Mr.Mandal started doing Cold Sponging of the patient. At that time, patient suddenly collapsed and expired at 6.15 a.m. When Mr. Mandal found that patient had suddenly passed away, he called Dr.Baradakanta Mishra, M.D. (son of respondent) over phone to come to the patient immediately. That doctor examined the patient and confirmed that he has expired. After death of the patient, his relatives became furious and manhandled the pharmacist. Later on, police was called. From the aforesaid facts, it is manifest that there is no deficiency in service or negligence whatsoever and petitioners have filed this case against respondent with an ulterior motive to damage his reputation and goodwill and tarnish the image of the Nursing Home on false and baseless allegations. Therefore, complaint is liable to be dismissed.

DISTRICT Consumer Disputes Redressal Forum, Cuttack (For short, "District Forum ") vide order dated 28.9.2005, allowed the complaint and passed the following directions ; "The O.P with Dr. Baidya Nath Mishra as its head is directed to pay a compensation of Rs.3,00,000/- to the complainant and her family members arrayed as the petitioners with her in the complaint and a litigation cost of Rs.1,000/- which shall be paid to them by the O.P described above, within one month hence. "

Being aggrieved by order of the District Forum, petitioners filed (First Appeal No.746 of 2005), whereas respondent also filed (First Appeal No.711 of 2005).

STATE Commission, vide impugned order allowed (First Appeal No.711 of 2005) filed by the respondent and consequently, dismissed the complaint. Whereas, (First Appeal No.746 of 2005) filed by the petitioners was dismissed.

NOW impugned order of the State Commission has been challenged by the petitioners, in this revision petition. We have heard the learned counsel for the parties and gone through the record.

IT has been contended by the learned counsel for the petitioners that it is an admitted case even of the respondent, that patient was seriously ill. Further, as per respondent ''s own case, all the activities were done by pharmacist who undoubtedly is not qualified but has been authorized to do everything on the patient by Dr. Baidyanath Mishra. There was deliberate negligence on the part of Dr.Baidyanath Mishra who is responsible for the activities of the Nursing Home. Moreover as per respondent ''s own case, all the fluids, insertion of Ryle ''s tube, cold sponging were done by pharmacist on its own. It is also contended that before the State Commission, a new case has been made out that Dr. Baradakanta Mishra (son of respondent ''s doctor) took over charge in the night and had supervised the activities of the pharmacist. It is well settled that no new case can be build up in the appeal. Thus, there is clear cut negligence on the part of respondent ''s doctor in handling the patient. In support, learned counsel for petitioners has relied upon following judgments ; 1. Louie and Anr. Vs. Kannolil Pathumma and Anr., (First Appeal No.97 of 1991, decided on 16.11.1992) ; 2. Spring Meadows Hospital and Another Vs. Harjol Ahluwalia Through K.S.Ahluwalia and Another, (1998) 4 SCC 39 and 3. V. Kishan Rao Vs. Nikhil Super Specialty Hospital and Another (2010) 5 SCC 513.

ON the other hand, it has been contended by learned counsel for respondent that Dr. Baidyanath Mishra personally examined the patient clinically. Moreover, this doctor has left the patient under the supervision of Dr. Baradakanta Mishra and pharmacist who were on night duty. There is also report of Committee of expert in this case, which have stated that the treating physician has initiated proper and adequate treatment. Hence, there is no illegality or infirmity in the impugned order. It is an admitted case of the parties that patient was brought to the Nursing Home of respondent at about 8.30/9.00 p.m. on 13.9.2003 and condition of the patient was serious. In its written statement, respondent has admitted that he had also advised further investigation to be done but at 9.30 p.m., it was not possible to do the same. Hence, they were scheduled to be undertaken next morning. However, in his affidavit by way of Examiner-in-Chief, Dr. Baidyanath Mishra has given different version stating that ; "Neither there was any facility for other tests at night in Cuttack nor the son of the patient, the respondent no.3 was ready and willing to try to get those tests done elsewhere ".

ONCE , respondent himself admits that the patient was seriously ill, then why respondent postponed the further investigation for the next day. In case, respondent ''s - Nursing Home was not fully equipped, it should have advised patient ''s relatives at 9.30 p.m. that it is not possible for him to do further investigation and they are postponing it for the next morning and if they so desire, they can make their alternative arrangement. There is also nothing on record to show that in the town like Cuttack, where respondent ''s Nursing Home is situated no further investigation was possible at 9.30 p.m. Moreover, this defence taken by the respondent "that son of the patient was not ready and willing to get those tests elsewhere " is beyond the pleadings.

OTHER plea of respondent as per its written statement is ; "Because of the seriousness of the case, this opposite party instructed his pharmacist on night duty, Mr.Madan Mohan Mandal to check the patient from time to time throughout the night and report to the opposite party if there is further deterioration in the patient ''s condition. In fact, Mr.Mandal had been with the patient almost whole of the night ".

Thus, it is patently clear that all the treatment during night was provided by Shri Mandal, who was only a pharmacist.

FURTHER , as per written statement, defence of respondent is that ; "when Mr.Mandal found that the patient has suddenly passed away he called Dr.Baradakanta Mishra, M.D. (son of the respondent) over phone to come to the patient immediately. Dr. Baradakanta Mishra examined the patient and confirmed that the patient has expired ".

WHEREAS , respondent in his affidavit of evidence states ; "That I left the Nursing Home at about midnight on that day, but before I left I had been to the bed-side of the patient with Dr.B.K.Mishra and the Pharmacist on night duty Sri Mandal, observed the patient and instructed Sri Mandal to be alert as the patient was serious. I also told Mr.Debasis Ghosh to remain watchful ".

Further, respondent in its affidavit of evidence states ; "At about 3.00 A.M. the patient complained of abdominal pain and distention. On the advice and under the direct supervision of Dr.B.K.Mishra, Sri Mandal the Pharmacist, introduced a Ryles Tube into the stomach of the patient and extracted 900 ml. of fluid from the stomach of the patient. After aspiration of stomach contents, the patient felt comfortable. His B.P. rose upto 100/70 mm Hg., which was a good sign. At 3.30 a.m. 500 ml. of I.V. Fluid (RL) was given to the patient. Thereafter, patient felt comfortable and went to sleep. It is not correct to say that Ryles tube aspiration started at 1.00 a.m. and continued for three hours. It is also totally incorrect rather false to say that Sri Mandal told that there is no necessity to call the doctor and that he himself is a doctor. That Dr.B.K.Mishra, was in his duty room inside the Nursing Home upto 5.30 a.m., when he went to his living room in the first floor to attend to the call of nature and refresh himself. At 6.00 a.m., Sri Mandal informed Dr.B.K.Mishra, over intercom that the temperature of the patient has suddenly rose to 104 F. Dr.Mishra advised him to start cold sponging immediately, which was done by Mr.Mandal. While cold sponging was going on, the patient suddenly collapsed. Dr.B.K.Mishra, swiftly reached the bed side of the patient, examined him and declared him dead. It would be around 6.15 a.m ".

In view of the above defence and affidavit of evidence filed by the respondent, Mr. Mandal and Dr.B.K.Mishra were the best witnesses to depose as to what happened during the night when patient was admitted in the respondent ''s Nursing Home. However, for the reasons best known to the respondent, they have not been examined as witnesses. Hence, inference has to be drawn against the respondent for withholding the best evidence.

THE mere fact that Expert Committee has observed that Physician initiated proper and adequate treatment, is of no help to the respondent in the present case as there is over-whelming evidence on record which lead to the only conclusion that it is respondent alone who was carelessness and gross negligent in attending the patient. In V.Kishan (supra) Apex Court observed ; "18. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. "

NOW the question which arises for consideration is when respondent itself admits that condition of the patient was quite serious and certain medical tests to be conducted on the patient were postponed for the next morning, then under such circumstances was respondent justified to leave such a serious patient in the custody and care of merely a pharmacist. This act of the respondent cannot be approved by any medical standard. In Louie ''s case (supra), this Commission observed ; "(24) The question still remains to be seen if the conduct of Dr. Sr. Louie was such that it amounts to negligence. It is well settled that for establishing negligence in diagnosis or treatment on the part of doctor, the test is whether he/she has been proved to be guilty or such failure as no doctor of ordinary skill could be guilty of it acting with reasonable care. After consideration of the statements of the witnesses we are of the opinion that in the present case the conduct of Dr.Sr. Louie amounts to negligence. Aysha''s condition at the time of her admission was admittedly week. After her first delivery in 1986, which was a complicated one, she had two abortions. The President of Josgiri Hospital Society in the counter has further admitted that anticipating the complications in the case of Aysha, the doctors and the staff were vigilant. However, it did not happen so. Aysha was admitted on 11th December, 1989 as the delivery was expected on that date. On 11th and 12th December, 1989 Aysha did not deliver the baby and she had no labour pain. Therefore, to induce labour pain, on 14th December, 1989 she was given glucose drip with syntocinon. At about 1.P.M. Aysha got mild contractions. On her examination at 2.45 P.M., It was found that the uterus was getting open. She was again examined at 4.15.P.M. and it was found that the labour was progressing. At that time, Dr.Sr. Louie did Arom (Artificial Rupture of Membrane). Liquor was found clear. Ph was good, 114/m. After doing Arom, Dr. Sr. Louie went away to attend patients in the Opd because in the morning she was busy in attending other deliveries and could not attend the patients nor could have the usual round in the Hospital. At that time, only nurse/nurses remained with Aysha. Dr. A.L.Mudaliar and Dr. Krishna Menon in the book "Clinical Obstetrics" have written "when a patient is on syntocinon, a Medical Officer stays with the patient, watching contractions, adjusting the rate of drip and recording foetal heart every half hour." (This passage has been quoted by the State Commission.) The Hospital record does not show that such observations have been recorded except foetal heart. When complication was expected at the time of delivery some qualified medical attendant ought to have remained with Aysha. It appears that when the condition of Aysha was becoming bad Dr. Celia was called by the nurse at 4.30 P.M. She has recorded that "call attended" "pulse not felt, B.P. was not recorded-Pt (patient) cyanosed, laboured breathing, generalised seizure". Thereafter Dr.Sr. Louie appears to have been called. At 4.35P.M. she has recorded "fits, pt (patient) synotic, restlessness P/V, Os fully dialated, Vx below spince." After catheterisation with foly''s catheter, Dr.Sr. Louie applied vacuum extractor as she saw that the mother and child were in danger. In ten minutes she look out the baby who was found to be in asphyxiated condition. Aysha started severe bleeding after delivery. The Hospital staff knew that on account of previous history of Aysha there might be complications at the time of delivery. Dr.Sr. Louie ought to have attended Aysha after doing AROM. Had she been present, she would have noticed the first sign of the complication occurring in Aysha and she could have taken some steps, if possible, to stop further deterioration in the condition of Aysha and perhaps the life of Aysha and baby could have been saved. Admittedly the child in the womb of Aysha was big one as was disclosed by the X-ray examination. In the condition in which Aysha was, baby had to be taken out from the womb of Aysha immediately, otherwise it would have died inside the womb. It appears that in such emergency there was every possibility of vacuum slip. Public Witness 1 Dr. Abdul Salam who treated the baby after it was removed to Indira Gandhi Cooperative Hospital, has stated that the child had injuries due to vacuum slip. Of course, the baby was delivered in such asphyxiated conditions that it was not expected to remain alive. (25) For the foregoing reasons, it is held that Aysha''s and baby''s deaths were due to the negligence of Dr.Sr. Louie as she did not exercise reasonable care and skill that a doctor should have taken at the time of delivery of Aysha particularly when complications were expected at the time of delivery. Thus the services rendered to Aysha by the Hospital were defective ".

IN Spring Meadows (supra) Apex Court has laid down that ; "10. Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly. We are indicating these principles since in the case in hand certain arguments had been advanced in this regard, which will be dealt with while answering the questions posed by us. "

IN V. Kishan (supra) Apex Court also observed ; "36. About the requirement of expert evidence, this Court made it clear in Indian Medical Association (supra) that before the Fora under the Act both simple and complicated cases may come. In complicated cases which require recording of evidence of expert, the complainant may be asked to approach the civil court for appropriate relief. This Court opined that Section 3 of the Act provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, the Act preserves the right of the consumer to approach the civil court in complicated cases of medical negligence for necessary relief. But this Court held that cases in which complicated questions do not arise the Forum can give redressal to an aggrieved consumer on the basis of a summary trial on affidavits.

The relevant observations of this Court are : (Indian Medical Association, SCC pp.672-73, para 37) "37 ....There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out-patient card containing the warning [as in Chin Keow v. Govt. of Malaysia,10 (1967) I WLR 813(PC)] or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the civil court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the civil court for necessary relief. "

A careful reading of the aforesaid principles laid down by this Court in Indian Medical Association (supra) makes the following position clear:- (a) There may be simple cases of medical negligence where expert evidence is not required. (b) Those cases should be decided by the Fora under the said Act on the basis of the procedure which has been prescribed under the said Act. (c) In complicated cases where expert evidence is required the parties have a right to go to the Civil Court. (d) That right of the parties to go to Civil Court is preserved under Section 3 of the Act. 39. The decision in Indian Medical Association (supra) has been further explained and reiterated in another three judge Bench decision in J. Merchant and others vs. Shrinath Chaturvedi reported in (2002) 6 SCC 635. The three Judge Bench in Dr. J.J.Merchant (supra) accepted the position that it has to be left to the discretion of Commission, "to examine experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. (Emphasis supplied) [SCC P.645, para 19]. 40. It is, therefore, clear that the larger Bench in Dr. J.J. Merchant (Dr.) held that only in appropriate cases examination of expert may be made and the matter is left to the discretion of Commission. Therefore, the general direction given in para 106 in D''Souza (Supra) to have expert evidence in all cases of medical negligence is not consistent with the principle laid down by the larger bench in paragraph 19 in Dr. J. J. Merchant (Dr.). 41. In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in complicated cases, and where in its discretion, the Consumer Fora feels it is required the direction in paragraph 106, quoted above in D''souza for referring all cases of medical negligence to a competent doctor or committee of doctors specialized in the field is a direction which is contrary to the principles laid down by larger Bench of this Court on this point. In D''souza the earlier larger Bench decision in Dr. J.J.Merchant (Dr.) has not been noticed ".

Thus, as per written statement and affidavit of evidence filed by the respondent, it is manifestly clear that there is gross negligence and carelessness on the part of the respondent in handing over a serious patient in the hands of a Pharmacist when admittedly the condition of patient was grave and serious. So, we have no hesitation in holding that medical negligence on the part of respondent is writ large in this case.

ACCORDINGLY , we hold that the State Commission wrongly exercised its jurisdiction vested in it by allowing the appeal of the respondent and dismissing the complaint filed by the petitioners. We, therefore, set aside the impugned order passed by the State Commission and restore the order of the District Forum.

REVISION petition stands disposed of accordingly. No order as to cost.