BEFORE THE HON’BLE CONSUMER DISPUTES
REDESSAL COMMISSION, WEST BENGAL, AT KRETA SURAKKA BHAWAN, PREMISES NO. 11A,
MIRZA GALIB STREET, GROUND FLOOR, KOLKATA – 700087
Consumer Complaint No. CC/195/2013
In
the matter of :
Jyoti
Prokash Chakraborty,
APPELLANT
VERSUS
The
Institute of Child Health Trust, and Others,
RESPONDENTS
BRIEF
NOTES OF ARGUMENT ON BEHALF OF THE APPLICANT;
Facts;
1.
19th day of April’ 2009, the
petitioner with his minor child Joydipto Chakraborty, visited the Institute of
Child Health Trust, at about 11 am, since the petitioner’s child suffering from
cold, cough and fever. The child suffering was not to take food (light or
heavy) and after having little water also, vomiting tendency raised. Earlier,
in the month of December’ 2008, petitioner visited with his child for different
sufferings of toilet problems and that time the child was admitted for three
days, and cured. Such being cause of good belief tends the petitioner to visit
on the occasion.
2.
The Doctors conducted X-Ray of Chest
and after gone through the report, informed about the cause of “Nemonia” and
suggested for admission of the child for further treatment. The child was
admitted in the Institute of Child Health Trust.
3.
On admission of the child, the name of
three visiting Doctors were given (a) Dr. Joydeep Roy, (b) Dr. (Miss) Manjuri
Mitra, and (c) Dr. P.G. Khanedlwal. The treatment started with providing saline
water and oxygen through mask on face of the child. At about 1 pm one doctor
attended the child and prescribed some medicine, and administered the same.
4.
On 20th day of April’ 2009
(Monday), Saline and Oxygen continued. At about 11 am to 12 am, Dr. Joydeep
Roy, and Manjuri Mitra, attending the child but did not say anything. At about
12:30 pm Dr. A.K. Basu, attended the child, and suggested to move the child to
ventilation, as the child was suffering from respiratory problems. Dr. A.K.
Basu also suggested that the Child was suffering from hernia problems and
required permanent solutions through operation. Prescribed so many medicine and
suggested for X-Ray. After visiting hours in evening, the child has been
shifted to the HDU-2 Bed at 1st floor from the Bed no. S-97 at 1st
floor, where saline continued but oxygen opened up. The child was then
suffering from high fever and the whole part of his body became very hot, the
attending nurses said that nothing to worried as the same is a cause of
reaction of medicine administered to the child.
5.
On 21st day of April’ 2009
(Tuesday), the saline continued and oxygen again started. At about 12 pm Dr. M.
Mitra and Dr. J. Roy attended the child on their visit and suggested for Harnia
Operation. The petitioner asked them about the necessity of such operation, but
they did not say anything. They prescribed medicine. The petitioner meet with
Dr. Apurba Ghosh, Director of the said Institution, who said there is no Harnia
case, the operation is not required. The child case is of a medicine case and only
medicine can cure.
6.
At about 1:30 pm Dr. A.K. Basu attended
the child and shouting that “I don’t have any time, and asking your
petitioner’s wife to agree for operation by tomorrow, and suggested her wife to
consult with your husband immediately” . on such provocation wife of the
petitioner assailed into depression as the said dialogue and throwing in
unexpected manners were not desirable. The staff nurses said about the said
Doctor as renowned pediatric Doctor in the City.
7.
In visiting hours while the petitioner
came into knowledge of such incident from his wife, who was with the child,
decided to consult with the other Doctors about the operation, which desired by
the said Doctor A.K. Basu. At about 7 pm the junior Doctors forcibly taken the
signature of the petitioner without explaining the content and purports of
those printed forms and the necessity of such operation, and given the
prescription being lists of medicine, and requisition for blood in pursuance to
conduct operation.
8.
The child condition was very poor his
fever was very high, the saline water and oxygen continued with the
administration of medicines, prescribed. At about 9:30 pm one Dr. Birendra Rai
attended the child and prescribed medicine.
9.
On 22nd day of April’ 2009
(Wednesday), early in the morning one Junior Dr. Sarsang Pradip attended the
child and give medicine. The child fever was 102’ degree, the whole body was
very hot. The nurses were coming and going and attending little bit to the
child. The care by the staff nurses were not good. The petitioner’s wife
Priyanka Chakraborty, was much worried about the child only due to conduct of
the staff nurses and the Doctors at the said Institute.
10.
At about 12:30 pm, the staff nurses
taken the child for the operation, while he was suffering from high fever, and
more particularly, while the petitioner’s wife did not consent for such
operation of the child. Forcible child was taken to the operation room.
11.
While
the operation room was closed, the petitioner and his wife standing outside the
said operation room. Assuming well that operation is going on; But after an
hour Dr. A.K.Basu leave the O.T. and did not say anything to the petitioner.
After 15 minutes the O.T. door opened and the ward boy has taken the child in
his lap rushed here and there, junior doctors also under some anxiety and
rushed here and there and called continuously to someone. After 20 minutes Dr.
A.K. Basu came again in O.T. and child was taken in O.T. again. The Petitioner
astonished to saw the happenings during the operation of the child.
12.
After half an hour Dr. A.K. Basu came
out from O.T. though the junior Doctors requested him not to leave the O.T. The
Petitioner asked Dr. A.K. Basu, about their child conditions, then he said that
the child conditions was not good. Thereafter a ward boy taken the child in his
lap from the said O.T. room at 3rd floor at Bed no. HDU-2, without
saline and oxygen, and at about 4:30 pm ventilation system given to the child.
13.
About 6:30 pm only the Petitioner’s
wife allowed to see the child, Dr. Mitra and others were using ice on head of
the child. It has been very carefully observed that the child did not move a
little bit nor open his eyes for a bit, and the whole of his body under high
temperature.
14.
It is pertinent to say that during such
happenings of the operation and post operation of the child, one X-ray has been
done, though nothing informed to the petitioner. The Doctors prescribed several
medicine during the operation and post operation. On post operation medicine
consist “morphin” injection of 2mg, and the said morphine has been administered
to the child.
15.
On 23rd day of April’ 2009
(Thursday), early in the morning at about 5:30 am, it has been reported by the
staff nurses that the ventilation was not working. One technical person asked
by them, who reached at 7 am. The child conditions deteriorated and temperature
of body did not low by means used by the doctors and staff nurses.
16.
At about 10 am Dr. Mitras and Dr. J.
Roy attended the child but did not inform anything. Thereafter at about 11:45
am Dr. A.K. Basu, attended the child and informed the Petitioner that his child
was not in a good condition; But he did not say the reasons as to why child’s
condition was not good.
17.
Thereafter, the Petitioner meet with
Dr. J. Roy, to discuss about the condition of the child, then the said Doctor
said that he cannot say anything about the research job of Dr. A. K. Basu, on
your Child.
18.
At about 3 pm one X-ray of the child
has been done; but did not inform about to the petitioner. Thereafter in
evening at about 5:30 pm Smt. Purnima, recognized herself wife of Dr. A.K.
Basu, attended the child and used ice on head and chilled water on whole body.
Thereafter 7:30 pm she prescribe morphine and administered. While the
petitioner purchased such morphoine the medical store guys informed that this
quantity of moprphine should not be administered on child of 7 years older, and
asked to take the signature of the petitioner.
19.
On 24th April’ 2009 (Friday)
at about 12 pm Dr. Basu attended the child and thereafter at about 1 pm some
junior Doctors attended the child and done some nosal therapy on child and
asked for X-ray of the child.
20.
At about 5:30 pm the wife of the DR.
Basu, attended the child; but no development has been seen in the child. The
child did not open his eyes, no movement, and the temperature remained, as it
was.
21.
At about 10:30 pm (night) Dr. A.K.
Basu, attended the child and asked the petitioner for the arrangement of Rs.
4,00,000/- ( Four Lakhs) only, which the petitioner arranged. Dr. Basu informed
that the child conditions was very serious need to transfer to CMRI as soon as
possible as the same is equipped for better treatment of the child. Thereafter
at about 11:15 pm (night), the child was arranged to shift to CMRI.
22.
While the child was taken in the
ambulance for CMRI, there was no saline, oxygen or any service to the child has
been provided, which normally assume to be given in emergency. At the time of
leaving the persons of the institute taken signature of the petitioner on white
blank paper.
23.
At about 12:15 am the child reached at
CMRI. Dr. Saugata Acharya attended the child and admitted in CMRI; but did not
inform anything about the condition of the child.
24.
On 25th April’ 2009
(Saturday), the child condition has not been informed nor any information given
about his treatment.
25.
On 26th April’ 2009
(Sunday), at visiting hour, Dr. Saugata Acharya, informed the Petitioner, that
the child conditions was not good, and the same as it was.
26.
On 27th April’ 2009 (Monday)
in morning Dr. Saugata Acharya attended the child and asked for Brain MRI. At
about 2 pm in afternoon the petitioner asked for the permission of hair cutting
of the child, without saying that why the hair cutting was required. However,
the petitioner given consent for hair cutting of the child.
27.
In the evening Dr. Saugata Acharya
informed the petitioner that Blood Clotting at the back side of the child has
been seen; but did not answer on hair cutting and MRI report, whatsoever.
28.
On 28th April’ 2009
(Tuesday), Dr. Saugata Acharya, was not available. The staff burses did not say
about any development in the condition of the child.
29.
On 29th April’ 2009
(Wednesday), at about 12:30 pm very dramatically, DR. A.K. Basu and Dr. Saugata
Acharya, asked the petitioner to meet with them at conference room of the CMRI.
While the Petitioner meet with them, DR. A.K. Basu shows one X-ray and informed
the petitioner that the Operation of the Child was successful. Thereafter Dr.
Saugata Acharya, shows the MRI report about Blood Clotting at the back side of
the child , and said that the Brain Death has been occurred to the Child and
for that both of them sugested for neuro treatment and referred to one Dr.
Avijit Chattopadhyay, who done EEG of brain and informed that there was no
hope.
30.
On 30th April’ 2009
(Thursday), there was no report or information.
31.
On 01-05-2009 (Friday), “bed shole”
problems has been reported by the staff nurses, and no Doctor attended the
child.
32.
On 02-05-2009 (Saturday), there was no report
or information.
33.
On 03-05-2009 (Sunday), there was no
report or information.
34.
On 04-05-2009 (Monday), at about 9 am
declared expired by CMRI and no Doctor came forward to said that how the death
occurred.
35.
On 05-05-2009 (Tuesday), the Post
Mortem of the Child’s body, assailed.
36.
On 6th July’ 2009, the
Petitioner visited ACMOH (Medico – Legal) department at Alipore, Kolkata –
700027, and meet with Doctor Uma Prassana Ghosal (PM Doctor), who informed the
following;
a)
Blood Clotting at the Back Side of the
head;
b)
Three Sharp cutting mark (may be of the
operation), at the upper side of stomach, of which no cutting mark adjoined
together;
c)
One cutting spot at both the wrist;
d)
Two cutting spot at back side of the
spinal cord;
e)
One cutting spot at both the leg mid
joint;
37.
The petitioner approached the Alipore
Police Station with his Complaint against Doctors and the Hospital, which has
not been registered by the Police, on plea that the complaint relates to the
Doctors.
38.
On 31-12-2009, the Learned Chief
Judicial Magistrate, Alipore, South 24 Parganas, directed the O/C, Alipore
Police Station for FIR and investigation, into the matter of complaint of the
Petitioner. The Police registered FIR being no. 04 of 2010, dated 06-01-2010,
under Section 304A, 366, 337, 338, 352, 166, 167, 168, & 34 IPC, against
the two Hospitals and the Doctors.
39.
The 161 statement of Dr. U.P. Ghoshal,
dated 17-02-2010, shows as “ Death appears to be due to lack of Oxygenation of
the brain tissue causing irreversible damage to the brain – Anti Mortem in
nature”, “ I could not give the final opinion as some reports are still
awaiting”, “ I did not receive the following documents 1) 1st Chest
Xray plate, 2) MRI Plate of the deceased made at CMRI, 3) EEG tracing –
prepared at CMRI, and 4) FSL Report.”, “As the victim child was suffering from
right side diaphragmatic Harnia but during P.M. Examination it has been noted
that the operation was done on the Left Side”.
40.
The following acts and omissions of the
respondents establish their negligent and breach of duty :
1.
The circumstances has never been
described as on 20th day of April’ 2009, Dr. A.K. Basu, formed his opinion
that the child of your petitioner was from “Harnia”, whereas on 19th
day of April’2009, the Doctors of the Institute of Child Health Trust, admitted
the child of your petitioneron forming opinion of suffering from “Neumonia”.
2.
The Doctors did not describe anything
about “Harnia” Symptom and Diagnostics to your Petitioner.
3.
The Operation of the Child of your
petitioner, has been done in a very forcible manner, and without consent of
your petitioner.
4.
The Doctors were behaving in a very
rude manner, to your petitioner.
5.
The causes has never been described by
the Doctors as to why a long and prolong period has been occurred for the
operation of the child of your petitioner.
6.
The Doctors causes Drug Abuses to the
Child of your petitioner by prescribed MORPHINE medicine on two occasions in a
big quantity.
7.
The Wrong Operation has been caused by
the Doctors of the Institute of Child Health Trust, at the Left Side of the
Child of your petitioner, while as allegedly the child of your petitioner was
suffering with hernia at right side.
8.
The M.R.I. of Brain of the Child, has
been caused by Dr. Saugata Acharya of the Calcutta Medical Research Institute,
though no report has ever been communicated and or described to your
petitioner.
9.
That at the death of the Child the
followings are found on the body of the child :
a.
Blood clotting at the Back side of the
head,
b.
Three sharp cutting mark, at the upper
side of Stomach, of which no cutting mark adjoining together,
c.
One cutting spot at both the wrist of
the child’s body.
d.
Two cutting spot at back side of the
spinal cord,
e.
One cutting spot at both the leg mid
joint.
10.
That on no stretch of imagination it
can be said that at the hernia operation by the doctors, those cutting marks at
leg, at wrist, at spinal cord, and three cutting marks at stomach can be held
to be logical and required under the medical profession as to treatment and
have operation of the harnia of a child of six years old.
11.
That the Wrong operation, without
consent and in breach of duty, well established the negligent acts and omission
of the Doctors and or the Respondents.
41.
Due to purported activities of the
respondents / opposite Parties, your petitioner’s child’s life ended at the age
of six years, and whereas, your petitioner was compelled to incurred expenses
of Rs. 2,95,912.95 ( Rupees Two Lakhs and Ninety five thousand and Nine hundred
twelve and paise ninety five ) only, in a circumstances, compelled by the
respondents / opposite parties, while your petitioner is a poor man and having
a poor earning, he used to borrow money from his relatives and friends to meet
such big expenses.
42.
Your petitioner loss his only son, at
instances and more particularly at the acts and omission of the Doctors /
respondents / opposite parties, and frustrated as such he will not be in a
position to get his son return at his hand rather your petitioner remains with
love and affection of the memories of his only son.
43.
If the respondents took the care with
due diligence his son will not left his life forever, and whereas now only and
only due to the purported acts as described, your petitioner is without his
only lovely child.
44.
Due to the purported acts of the
doctors / respondents / opposite parties, your petitioner is denied to his
child. that
by no stretch of imagination or any story, anyone can fulfill the presence of
the child of your petitioner, and
whereas it is very pathetic to lose the child of your petitioner, thus the
petitioner hearts and mind always full with tears and agony
During
the Proceeding;
1.
On receipt of notice, the respondent
no. 1, 2, 3, 4, 5, 9, and 10, appeared, and submitted their Written Version,
Evidence on Affidavit, Questionnaire, and Reply. Participate in trial of the
present Consumer Proceeding.
2.
The Respondent no. 12, appeared in the
present Consumer proceeding; But did not submit any written Version, and
subsequently did not participate in trial of the present Consumer Proceeding.
The Respondent no. 12, is a Post Mortem Doctor, who cause post mortem of the
child.
3.
Regarding the Respondent no. 8, the
respondent nos. 1, 2, 3, and said that the said Doctor is not associated with
them. However, the Respondent no. 8, did not appear in the present consumer
proceeding.
4.
It is pertinent to states that the
stated respondents did not appear at the first threshold on receipt of the
notice, therefore the notice by way of paper publication has been served by the
petitioner under due direction of the Hon’ble State Commission. Therefore the
services of notice has well complied on all the respondents.
At
the First threshold ;
The Respondent no. 5, Dr. Ashok Kumar
Basu, submitted an application for NOT MAINTAINABILITY OF THE CASE, which has
been registered as M.A. 245 of 2015, in the present Consumer Proceeding. The
Petitioner submitted his Objection to the said Not maintainability application
of the case. The said application has been duly heard and the Hon’ble State
Commission, was pleased to pass necessary order on 17/06/2016, in the
followings;
“The Learned
Counsel for the Misc. Applicant has submitted that the complaint case is barred
by limitation. It is contended that the baby died on 04/05/09 and the
complaint case was filed on 19/08/13. It is submitted that the
Complainant filed criminal case against the doctors and the said case
ended in FRT. It is contended that there is no law that after the end of
the criminal trial the complaint case has to be filed. It is submitted
that no petition for condonation of delay was filed by the Complainant and, as
such, the complaint case is liable to be dismissed.
The
Learned Counsel for the Complainant has submitted that the baby died on
04/05/09, but prior to 16/10/12 the Complainant was unaware of the negligence
of the OPs. It is contended that from the statement of Dr. U.P. Ghosal,
the Autopsy Surgeon, the Complainant came to learn that the Operating Surgeon
committed mistake in surgery. It is submitted that without consent of the
Complainant party the child was operated upon and against the submission of FRT
the Ld. C.J.M. has been pleased to direct further investigation. It is
contended that from the papers received from the criminal case on submission of
FRT, the Complainant came to know about the negligence on the part of the OPs.
We
have heard the submission made by both sides and perused the papers on
record. On the point of limitation it has been stated in the objection
against the Miscellaneous Application that on 16/10/12 the Complainant received
the final report, copy of the P.M. report, the statement u/s 161 Cr.P.C. of Dr.
U.P. Ghosal and expert opinion from which the Complainant came to know that
there was negligence on the part of the OPs. On the other hand, the
contention of the Misc. Applicant is that the cause of action arose from the
date of death of the baby, that is, on 04/05/09 and the complaint was filed
after the expiry of two years from that date. In view of the specific
pleading of the Complainant that from the papers of the criminal case supplied
to him after the submission of FRT on 16/10/12 he came to learn about the
negligence on the part of OPs, we are of the considered view that the cause of
action arose from 16/10/12 and the complaint has been filed within the period
of limitation. The contention of the Learned Counsel for the Misc.
Applicant is, therefore, not acceptable.
MA 245 of 2015 is dismissed. Fix
29/06/16 for filing W.V.”
Written
Version of the Respondents assessed at a glance;
{ Annexed } – Page number – 17 to 24
Questionnaire
and Reply of the Respondents; Relevant one;
{ Annexed } - Page number – 25 to 45
Judicial
References ;
(1) The
Apex Court defined “informed Consent” in the context of doctor patient
relationship, in a verdict delivered on the Samir Kohli – Versus – Dr. Prabha
Manchanda case, it ruled that a doctor had to secure the consent of a patient
before commencing a treatment, including surgery. Whereas your petitioner ward
is minor and not even upto the age of 12 years, as per Section 90 of the Indian
Penal Code to obtain consent from the ward of your petitioner, as such your
petitioner can only give consent, which he did not given for the said purported
operation of his ward, and the doctors of the said institution did not
expressed and informed in details about the necessity of the operation of your
petitioner ward. The said operation has been conducted forcibly and without the
consent of your petitioner.
(2) In the
case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbark Babu Godbole and Anr., AIR
1969 SC 128 and A.S. Mittal Vs. State of U.P., A.I.R. 1989 SC 1570, it was laid
down that when a doctor is consulted by a patient, the doctor owes to his
patient certain duties which are : (a) duty of care in deciding whether to
undertake the case, (b) duty of care in deciding what treatment to give, and
(c) duty of care in the administration of that treatment. A breach of any of
the above duties may give a cause of action for negligence and the patient may
on that basis recover damages from his doctors.
(3) In
the case of the Indian Medical Association Vs. V.P. Shanta and Ors. III ( 1995
) CPJ 1 ( SC ), the Supreme Court finally decided on the issue of coverage of
medical profession within the ambit of the Consumer Protection Act’ 1986, so
that all ambiguity on the subject was cleared.
(4) The
National Commission in the case of Dr. Ravishankar Vs. Jery K. Thomas and Anr.
II ( 2006 ) CPJ 138 ( NC ), held that based on the facts and circumstances, the
obvious deduction is that the appellant doctor is responsible for leaving
behind ribbon guaze resulting in complication. Medical Negligence was proved,
and such cases is very similar to the present case matter, as such this present
cases is related to the facts and circumstances of Wrong Operation and also
without the consent of your petitioner, and thus this is the case well
established medical negligence.
(5) In
the case of Prashanth S. Dhakanka Vs. Nizam Institute of Medical Science and
Ors. ( 1999 ) CPJ 43 ( NC ), the National Commission deliberated on important
issue such as what constitute medical negligence, the duty of a hospital to
engage a specialist when a specialist is available, vicarious liability of a
hospital for omission and commissions of doctors and staff, and compensation
for mental and physical torture.
(6) The
facts and circumstances as described herein above are well settled medical
negligence of the Doctors and hospitals, and in such event as described in the
Indian Medical Association Vs. V.P. Shanta and Ors. III ( 1995 ) CPJ 1 ( SC ),
no expert opinion is required, as such it is well seen that the wrong operation
has been done by the Doctors at the Left side of the child, while he was
suffering with the Right side Harnia, problems, as alleged by the Doctors.
(7) In the
case of Bolam Vs. Frien Hospital Management Committee, ( 1957 ) 2 All ER 118,
McNair, J. summed up the law as the following : “ the test is the standard of
the ordinary skilled man exercising and professing to have that special skill.
A man need not possess the highest expert skill : It is well established law
that it is sufficient if he exercise the ordinary skill of an ordinary
competent man exercising that particular art. In the case of a medical man,
negligence means failure to act in accordance with the standards of reasonably
competent medical men at the time. There may be one or more perfectly proper
standards, and if he confirms with one of these proper standards, then he is
not negligent”, and whereas in the present facts and circumstances, the acts
and omissions well constitute the negligent act of the doctors.
(8) In the
case of the State of Haryana and Ors. Vs. Smt. Santra, I ( 2000 ) CPJ 53 (SC )
( by S. Saghir Ahmed and D.P. Wadhwa, J.J. ), the Supreme Court hold as “ Claim
for damages was based on the principle that if a person has committed civil
wrong, he must pay compensation by way of damages to the person wronged”.
(9) In the
All India Medical Council Cases ( Supra ), it has been held by the Hon’ble
Supreme Court of India, as some of the negligent acts as in the present
application, submitted by the petitioner before the Hon’ble Commission, does
not require any expert opinion, as such the negligent acts are at the prima
facie established and clearly understand.
Conclusion;
The Petitioner is well entitled to get
relief/s in terms of his prayer, in the given facts and circumstances, in the
interest of administration of Justice.
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Total number of Pages 45 (Forty Five).
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