MR. SHAYMAL KUMAR GHOSHAL, MEMBER - The instant consumer case relating to medical negligence has been filed by the complainant against the Opposite Party/hospital praying for compensation amounting to Rs. 40,000,00/- and cost which are clearly enumerated in the petition of complaint.
- In a nutshell, the fact of the case is that the complainant is husband of Jhuma Roy since deceased. The patient namely Jhuma Roy suffered from meagre anaemia which was not severe. On 23.10.2014 at about 2.00 p.m. she felt anaematic tendency which was very painful and serious in nature. For that reason the patient had to take admission in OP/hospital at about 4.00 p.m,. Dr. Jayanta Dutta attached to the said hospital took the charge of the patient. The condition of the patient was deteriorated gradually, but the OP/hospital authority did not take proper care. No nurse attended the patient. No proper food was given to the patient during the period of admission at the OP/hospital. No required medicine was given to her. For that reason, the complainant requested the hospital authority to discharge the patient and if the patient would stay further at the OP/hospital, the treatment charge/cost would be increased. On 26.10.2014 at about 10.03 a.m. the patient was discharged and unfortunately on 27.10.2014 the patient expired in her house. The complainant has applied for bed head tickets alongwith all records in respect of the treatment of the patient, since deceased and to that effect an application has been made by the complainant addressed to OP/hospital on 05.02.2016. Unfortunately, no documents has been given to the complainant. There is a gross negligence and deficiency in service on the part of the OP/hospital and accordingly the complainant has knocked at the door of this Commission for getting proper relief/reliefs as prayed for.
- The OP contest this case by filing written version stating inter-alia that Dr. Jayanta Dutta is a necessary party to this case. The complaint cannot be properly adjudicated due to mis-joinder of the necessary party. The patient viz. Jhuma Roy since deceased was under treatment of Dr. Jayanta Dutta while she was admitted in the OP/ Hospital. All medical treatments including tests and examinations were done according to the advice of Dr. Jayanta Dutta. Therefore, the petition of complaint is not maintainable at all due to miss-joinder of the necessary parties. The Ld. Advocate also stated that without medical expert report it is not possible to adjudicate the matter properly. By filing written version the OP stated that the patient namely Jhuma Roy was admitted at the OP/Hospital on 23.10.2014 at about 4.04.p.m. with the symptoms of palpitation, weakness , loss of appetite for last four weeks but the OP had no knowledge about anything prior to her admission. It was further submitted that the patient was non-diabetic, hypothyroid lady. The patient was earlier admitted at the said hospital in the month of June, 2013. It was further stated that LUCS had been done 14 years back. Not only that she was diagnosed as Asthmatics, Bronchitis and Hyponatremia. Regarding negligence on the part of the attendant/nurse of the hospital, OP stated that hospital authority including nurses and other attendants were always in constant vigil of their work so the allegation upon the nurses and attendants is totally false and baseless story. The OP further stated that during staying at the hospital the patient party did not co-operate with the Doctor and the medical examination as advised by treating Doctor could not be done. On several occasions, the complainant was requested to give consent for examination of bone marrow and haematological opinion but he did not agree to comply the aforesaid advices. Several examinations /tests were done and normal non-spicy diet was given to the patient alongwith medicines . Apart from that two units blood alongwith four units platelet were transfused to the patient according to the advice of Dr. Jayanta Dutta. The patient was then referred to one Haematologist namely Dr. S.S. Roy but the complainant did not agree. Due to non co-operation on the part of the complainant, the Doctor followed the accepted medical procedure. Gradually the patient was feeling well on 25.10.2014 and the complainant immediately asked the Doctor to release the patient as the complainant (husband of the deceased patient) was not in a position to bear the further expenses for treatment. The patient was although required to be kept under supervision for another two days at the said hospital. But due to requests on several occasions, the Doctor was bound to discharge the patient on 26.10.2014. There is no negligence and deficiency in service on the part of the OP/hospital. Accordingly, the sole OP has prayed for dismissal of the instant CC case with exemplary cost.
- The ld advocate appearing for the complainant has argued that the patient viz. Jhuma Roy was a patient of anaemia which was not so serious in nature. On 23/10/2014 at about 2.00 pm she felt serious ill. The patient was admitted at the op/hospital at about 4.00 pm. Dr. Jayanta Dutta attached to the op/hospital looked after the patient. The condition of the patient was deteriorated gradually but the op/hospital did not take proper care. No nurse attended the patient. No food was given to the patient properly during the period of staying at the op/hospital. No medicine was given to the patient. The ld advocate has argued that for the aforesaid reasons, the complainant requested the hospital authority to discharge the patient and if the patient would stay further at the said hospital, the hospital charge would be increased. The complainant was not in position to pay said charges. On 26/10/2014 at about 10.03 am the patient was discharged from the said hospital and on 27/10/2014 the patient expired. The complainant applied for bed head ticket along with all relevant medical papers 05/02/2016 but no documents were given to the patient party. There is a clear gross negligence and deficiency in service on the part of the sole op/hospital and accordingly, the ld advocate appearing for the complainant has prayed for proper relief/reliefs against the OPs.
- The ld advocate appearing for the opposite party/hospital has argued that Dr. Jayanta Dutta is a necessary party and the petition of complaint cannot be properly adjudicatd due to non-joinder of necessary party. The patient viz. Jhuma Roy, since deceased, was under treatment of Dr. Jayanta Dutta while she was admitted in the op/hospital. All medical treatments including tests and examinations were done in pursuant to the advice of Dr. Dutta. The ld advocate has also urged that without medical expert opinion it is not possible to adjudicate the matter properly. Actually the patient was admitted at the op/hospital on 23/10/2014 at about 4.04 pm with palpitation, weakness and loss of appetite for last four weeks but the op had no knowledge about anything prior to her admission. The patient was non-diabetic, hypothyroid lady. The patient was earlier admitted at the said hospital in the month of June 2013. The LUCS has been done 14 years back. The ld advocate has also added that there is no negligence or fault on the part of nurse, attendant etc. Non-spicy food was provided to the patient. Rather the complainant did not co-operate with the hospital. Several examinations and tests were done. On several occasions, the complainant was requested to give consent for examination of bone marrow and haematological opinion but he did not agree to comply the advice of the doctor concerned. Apart from that two units blood along with four units platelet were transfused to the patient according to the advice of the Dr. Dutta. The patient was referred to one Haematologist viz. Dr. S.S. Roy but the complainant did not agree with the aforesaid advice. The proper treatment would be required in order to save the life of the patient but the complainant did not care with the instruction of the op/hospital. At last the concerned doctor of the said op/hospital was bound to discharge the patient upon request of the complainant. The doctor has followed all accepted medical formalities and protocol during that particular period of time when the patient was staying at the aforesaid hospital and as such there is no negligence on the part of the op/hospital. Accordingly the ld advocate has prayed for dismissal of the consumer case with exemplary costs.
- We have heard the ld advocate appearing for the respective parties at length and in full.
- We have considered submissions of both sides.
- We have meticulously perused all materials available on the record.
- The final hearing has been concluded.
- It is admitted that the patient viz. Jhuma Roy, aged about 34 years was admitted at op/Charnock Hospital on 23/10/2014 under care of Dr.Jayanta Dutta at about 4.04 pm and she was discharged from the said hospital on 26/10/2014 at about 10.03 am. The fact is clearly revealed from the DISCHARGE ON REQUEST issued by the op/hospital. The said discharge certificate also reveals that the patient was suffering from severe anaemia, suspected immune thrombocytopenia and hypothyroidism. At the time of admission of the patient we find that there were certain complications of the patient such as palpitation, weakness and loss of appetite for last 4 weeks and the same were observed by the consultant Dr. Dutta. Accordingly the required measures were taken by the op/hospital. But in the column viz. Medicine applied we find that CONSERVATIVE MANAGEMENT GIVEN. BONE MARROW EXAMINATION AND HAEMATOLOGICAL OPINION CANNOT BE TAKEN AS PATIENT PARTY DID NOT AGREE TO THE SAME.
- We have perused two money receipts dated 26/10/2014 issued by the op/hospital wherefrom it appears to us that the op/hospital received Rs.27,825.00 and Rs.2,954.00 respectively from the patient viz Jhuma Roy towards her medical treatment and accordingly the complainant, being a beneficiary, is to be treated as consumer as per Consumer Protection Act, 1986.
- In cc case being no – 691/2014 filed by the complainant before the ld DCDRC, North 24 Parganas at Barasat, the ld Commission concerned has been pleased to dispose of the case as withdrawn and liberty has been given to the complainant to file the same before the proper Forum which is clearly revealed from the order being no – 11 dated 11/09/2015 passed by the ld Concerned DCDRC.
- After withdrawal of the aforesaid consumer case, the complainant, on 05/02/2016, has sent a letter addressed to the op/hospital praying for furnishing all medical treatment records along with BHT without any further delay. The same has been clearly reflected in the letter dated 05/02/2016 written by the complainant (ANX-D).
- We have perused history sheet issued by the op/hospital wherefrom it appears to us that the patient was admitted in the said hospital in the month of June 2013 for the treatment of asthmatic bronchitis and LUCS has been done 14 years back.
- The medical report lying in the case record clearly confers that 4 units of PRBC and 4 units of Con. Platelet have been transfused to the patient on 24/10/2014.
- On the self same date ie on 24/10/2014 at about 9.30 hrs one haematologist has been referred and to that effect Floor Manager has also been informed. Upon careful perusal of the progress note/treatment sheet dated 24/10/2014 we find an observation wherein it is clear to us that Dr. S.S.Roy, haematologist would see the case today evening. But we find that at about 9.40 am the patient party was not willing to review the patient by haematologist and to that effect Dr. Dutta has been informed accordingly.
- Thereafter on 24/10/2014 at about 9.50 am the complainant has declared in the treatment sheet that being a husband at present he was not willing to receive the treatment for his wife from any haematologist. At the time of final hearing the Commission asked for whether the said declaration has been written by the complainant or not. In reply the complainant in open commission declared that it was his own hand writing.
- We are very astonishing that when the condition of the patient (anaemic in nature) was deteriorating gradually, the complainant was not willing to consult with any haematologist. Be that as it may he did not provide any consent regarding bone marrow examination.
- From the above situation, it is well understood that no opportunity has been given to the doctor for providing proper medical treatment of his wife. No co-operation has been made by the complainant with the op/hospital regarding treatment. Rather the op/hospital has followed all accepted medical procedure and protocol and at last the op/hospital was bound to discharge the patient on request of the complainant.
- In pursuant to the above discussion we find no negligence and deficiency in service on the part of op/doctor. The mere allegations, stated in the petition of complaint, are not sufficient to prove the medical negligence on the part of op/hospital. It is the settled principle of law that the burden of proof always lies upon the complainant by filing cogent evidence but in the instant case we do not find any cogent and reliable evidence at the behest of the complainant. At this juncture, we can safely rely upon the citation Dr. K. Srikar Reddy vs Srishti Associates & others reported in 2016(2) CPR 151, wherein Hon’ble NCDRC has been pleased to hold that initial burden to prove medical negligence lies on complainant. Mere averment in complaint are not evidence and just a bald statement cannot be accepted.
- So far as the allegation of medical negligence on the part of op/hospital is concerned we may note that Hon’ble Apex Court as well as Hon’ble NCDRC in a catena of decisions consistently held that negligence cannot be attributed to a Doctor so long he performs his duties with reasonable skill and competence as it was done in the instant case and it is the bounded duty and obligation of civil society to ensure that the medical professionals are not necessarily harassed or humiliated so that they can perform their professional duties without any fear and apprehension and to work for the welfare of the patient which is paramount consideration for the medical professions.
- Hon’ble NCDRC in Bolam vs Frien Hospital Management Committee ( known as Bolam Test) reported in 2005 3 CPR 70 (SC) held that a doctor is not guilty of negligence if he has acted in accordance with a practice so accepted by a responsible body of medical men skilled in that particular art. Hon’ble National Commission in Reshma Devi Jadav and other vs Dr. (Mrs) Reeta Bagchi and others reported in 2016 1 CPR 557 (NC) held that every medical fatality does not indicate negligence on the part of treating doctor.
- In the instant case the op/hospital tried their best to save the life of patient when she was staying in the aforesaid hospital. Ultimately, due to whimsical decision taken by the complainant ( mentioned in detail earlier) which was beyond the control of the medical persons and the op/hospital was bound to discharge the patient on request of the complainant(discussed earlier). Accordingly, in pursuant to the Bolam test , we do not find any negligence or fault on the part of the op/hospital.
- Be it mentioned here that after releasing the patient on DOR from the op/hospital on 26/10/2014, the complainant neither put the patient in any other private hospital or Govt. hospital for her medical treatment nor took any advice from the other Doctor/Doctors. Ultimately, the patient was lying in home without any treatment and resultantly the patient expired on 27/10/2014 at home. In this respect, it is our view that every unfortunate death of patient does not constitute medical negligence and to that effect there are catena of decision of Hon’ble Apex Court as well as Hon’ble NCDRC.
- Keeping in view of the above observations and for finality of litigation we are constrained to dismiss the instant consumer case on contest against the op/hospital.
- The instant consumer case stands disposed of.
Note accordingly. |
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