w w w . L a w y e r S e r v i c e s . i n

Kanika Mukherjee & Another v/s The Calcutta Medical Research Institute Represented by Managing Director & Others

Company & Directors' Information:- P N MUKHERJEE AND COMPANY PVT LTD [Active] CIN = U22219WB1993PTC059560

Company & Directors' Information:- CALCUTTA CO LTD [Active] CIN = U67120WB1940PLC009980

Company & Directors' Information:- B. MUKHERJEE & COMPANY PVT. LTD. [Strike Off] CIN = U25209WB1992PTC055755

Company & Directors' Information:- A MUKHERJEE & CO PVT LTD [Active] CIN = U22219WB1940PTC013674

Company & Directors' Information:- A K MUKHERJEE & CO PVT LTD [Strike Off] CIN = U51505WB1957PTC023546

Company & Directors' Information:- B K MUKHERJEE CO PVT LTD [Strike Off] CIN = U70109WB1921PTC004278

Company & Directors' Information:- J N MUKHERJEE & CO PVT LTD [Active] CIN = U51909WB1943PTC011346

Company & Directors' Information:- S N MUKHERJEE PVT LTD [Active] CIN = U74940WB1941PTC014185

Company & Directors' Information:- P K MUKHERJEE & CO PVT LTD [Strike Off] CIN = U51420WB1939PTC009657

Company & Directors' Information:- A N MUKHERJEE PVT LTD [Strike Off] CIN = U36992WB1949PTC017824

Company & Directors' Information:- MUKHERJEE & MUKHERJEE PVT LTD [Strike Off] CIN = U70101WB1960PTC024754

Company & Directors' Information:- H D MUKHERJEE & CO PVT LTD [Strike Off] CIN = U51109WB1947PTC015631

Company & Directors' Information:- N R MUKHERJEE PVT LTD [Strike Off] CIN = U27106WB1957PTC023649

Company & Directors' Information:- P MUKHERJEE AND CO PVT LTD [Strike Off] CIN = U99999DL1922PTC000090

    Complaint Case No. CC/154/2013

    Decided On, 03 July 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, MEMBER

    For the Complainant: Debnarayan Roy, Mousumi Chakraborty, Advocates. For the Opp. Parties: Abhik Kr. Das, Advocate.

Judgment Text

Ishan Chandra Das, President

This is to consider an application under section 17 (1) (a) (i) of the Consumer Protection Act where the complainant being the widow and daughter of one Benulal Mukherjee are praying for adequate compensation, as they lost said Benulal Mukherjee who met an unfortunate death due to medical negligence and deficiency in service at the OP no. 1/hospital, while the said patient was treated in the said Hospital.

Briefly stated, the case of the complainants was that one Benulal Mukherjee, the father of the complainant no. 2 and the husband of the complainant no. 1 (hereinafter referred to as the patient) suddenly became ill due to post rectum bleeding with neck pain on 23-12-2011 and he was immediately admitted to a local Nursing Home (Kasturi Medical Research Centre (P) Ltd. i.e. proforma OP no. 14) under one Dr. Ranjit Dutta. Said Dr. Dutta examined the patient and advised for immediate blood transfusion due to continuous bleeding. The patient was given 2 units O+ group of blood. Thereafter one Dr. J. D. Roy, a Gaestroentrologist advised for endoscopy and another 2 units of O+ blood was given to patient. Thereafter said doctor J. D. Roy advised for endoscopy and also another 2 unit whole of O+ blood was given to patient and as per doctor’s advice and for better treatment the patient was shifted to the OP No. 1/CMRI where he was admitted under one Dr. Anirban Chatterjee, in a special word in a stable condition though there was continuous bleeding. The patient was admitted under Dr. Anirban Chatterjee, as recorded in the Admission cum Consent form but it was informed by the Hospital Authority that said doctor was out of station and the patient was placed in charge of Dr. Somnath Mukherjee, another senior doctor and the same was recorded in another admission cum consent form. On 24-12-2011 at about 10-20 a.m. after admission of the patient one Dr. Dipak Das who diagnosed the patient as animic and at about 10-30 a.m. Dr. Somnath Mukherjee also diagonised the patient and advised immediate transfusion of blood and for urgent endoscopy to which the complainants also gave their consent, endoscopy test of the patient was done, report was received at about 11-30/12-00 noon and on seeing such report Dr. Somnath Mukherjee informed the complainants that the said report was normal having no complication for which the patient was referred to for colonoscopy test for proper diagnosis of the patient. On consent of his family members, colonoscopy was done but not the complete colonoscopy and the hospital authority informed that as there was clotting of blood at the colon with no tumer and it was advised for immediate transfusion of O+ whole blood. The Hospital Authority assured the complainants that they would arrange blood for the patient but no effective steps were taken by the Hospital Authority for arrangement of such blood to save the life of the patient but did nothing except passing of time and on interrogation about arrangement of blood they misbehaved with the complainants did not allow to meet the patient. When the complainant no. 2 was allowed to meet the patient, she found her father in a critical condition with pain of his neck, increase of continuous bleeding from rectum with increase of frequency from the time of administering medicine at the time of colonoscopy but no blood was given to the patient. The complainants requested the Hospital Authority for immediate transfusion of blood with an alternative proposal of arrange blood by themselves from the blood donors but the hospital authority did not pay heed to their request or proposal. At about 2-30 p.m. the attending doctor again prescribed for urgent blood transfusion. He also referred the patient to another senior doctor P. K. Nemani but not a single drop of blood was transfused to the patient till 4-30 p.m. At the time of visiting hours the patient himself asked the complainant for requesting the doctors to start immediate transfusion of blood to save his life and accordingly the complainants requested the medical staff of the Hospital for such transfusion but the attending medical staff nurse asked the patient party to contact Dr. Somnath Mukherjee for this issue, instead of disturbing them any more, though the patient party could not find said Dr. Mukherje, as he was out of the hospital. The patient party was in a helpless condition requested Dr. P. K. Nemani to give some medicines so that the patient could get relief from his neck pain. The complainants also requested Dr. Nemani for starting immediate blood transfusion but they were not adhered to rather he disclosed in presence of the patient that the patient would not survive more than two hours. After hearing such opinion, the patient became unconscious and his condition became critical and at about 6-45 p.m. 2 unit blood was given to the patient and after 5 minutes from such transfusion of blood, the patient suffered cardiac attack and such critical condition continued till 8-20 p.m. and about 8-50 p.m. the doctor of the CMRI attending the patient in the ICU declared that the patient died but before such declaration, the Hospital Authority called upon a few policeman and the declaration was made in their presence. The complainants alleged that they lost their patient due to utter negligence of the OP/Hospital and the Medical Attendants for which they claimed compensation and other consequential reliefs, in terms of their petition of complaint.

The OPs no. 1 to 4 and 6 to 13 filed a joint written version whereas the OP no. 5, Dr. Somnath Mukherjee, the treating doctor, filed a separate written version to contest the complaint case. The OPs in their respective written versions denied the cause of action as averred in the body of the application including negligence in the treatment of the patient, misbehavior with the relatives of the patient etc. All the OPs except the OP no. 5 in their written version claimed that the patient was brought to the CMRI from the Kasturi Medical Cntre where, as per relatives of the patient, the patient had been administered with blood transfusion. It was further claimed by the OPs that on his arrival, the patient was examined by several specialist doctors who had discharged their duties as per their best ability and skill. These OPs admitted that the CMRI has no blood bank of its own and it has tie up with blood banks for supply of blood .These OPs in their written versions categorically denied their responsibilities for the death of the patient. The OPs claimed that the complainants took responsibility of collecting blood but ultimately at about 2 p.m. on 24-12-2011, they expressed their inability of collecting blood before the Hospital Authority and requested the Hospital Authority to do the same and at about 6-00 a.m., the Hospital Authority could collect the blood for transfusion but at 8-50 p.m., the patient expired due to cardiac arrest for which neither the Hospital Authorities nor the doctors/nurses can be blamed.

The OP no. 5, Dr. Somnath Mukherje in his separate written version admitted that the patient (Benulal Mukherjee) was admitted to the Hospital and on requisition; the OP no. 5 examined the patient instantly, found him with anemia and P R bleeding in the same morning, previous history of diabetes hypertension and coronary artery disease. The OP no. 5 in his written version categorically stated that on examination he found the patient to be pale, anaemic with active P.R. bleeding, advised blood transfusion and gastroscopy etc. He also clarified that the condition of the patient was critical, returned the patient to the word with instruction of urgent blood transfusion and urgent surgical review. Denying medical negligence on his part and further denying all the parawise material allegations, all the OPs ultimately prayed for dismissal of the complaint case claiming that the allegations were false, vexations and baseless.

From a perusal of the written complaint it appears to us that the paient was brought to the Hospital/O.P.No.1 as the condition of the patient was critical due to several complications, and for transfusion of blood. The patient was previously admitted on 23-12-2011 at Kasturi Medical R`esearch Centre (P) Ltd. /OP no. 14 wherefrom he was shifted to CMRI for better management. The complainant alleged medical negligence of the OP no. 1, a Private Super Speciality Hospital, as the doctors attending the patient at the OP/Hospital were liable althrough. It was claimed that the patient was admitted under one Dr. Anirban Chatterjee who was not present at the time of admission of the patient and another Dr. Somnath Mukherjee treated the patient on 24-12-2011 at 10-20 a.m., prescribed some medicines and prescribed for urgent blood transfusion and referred the patient to Dr. P. K. Nemani for his surgical advice at 2.30. p.m. on 24-12-2011. It is also available from B.H.T. that the attending Doctor Nemani prescribed 2 units of blood for transfusion immediately.

The fact remains, the patient was admitted to the Hospital/Calcutta Medical Research Institute on the fateful date i.e. 24-12-2011 where the patient was treated during the day time, some tests were done, some medicines were prescribed and administered though at the final stage the blood was transfused but the patient could not accept the blood at the belated stage and ultimately met the unfortunate death. The Death Certificate given by the OP/CMRI (which is at page 26 of the file) clearly indicated that the cause of death was Gastro Intestinal Bleeding in a Post C.A.B.G. on Antiplatelet Therapy. The Death Certificate also noted the cause of death as ‘Natural’.

Ld. Counsel appearing for the OPs in course of argument relied on the evidence of one Dr. Prema Guha and submitted that the wild allegations of the complainants against the OPs regarding misbehavior, fraud etc. were outside the scope of the Consumer Court. He also submitted that the employees of the OP/Hospital could not be held responsible for the death of the patient as the OPs did not have their Blood Bank and such fact was informed to the patient party when the blood transfusion was first advised and despite the fact that the complaint party being aware of the non-availability of the blood at the OP/Hospital insisted the authority of the OP to get the patient admitted for his treatment.

Now the point for consideration before us is - whether the allegations of medical negligence in the instant case have been proved by the complainants.

In this context, Ld. Counsel for the OPs submitted with reference to a decision of the Hon’ble National Commission in Sikha Nayak Vs. Dr. Manabesh Pramanick, reported in 2006 CTJ 662 (CP) (NCDRC) and pointed out that “a case of medical negligence has to be proved by medical expert evidence and it cannot be based on mere statements of the patient”. In the instant case the complainants brought some allegations against the Hospital and the medical employees blaming them for the cause of death of the patient and raised their fingers for the alleged medical negligence. We found some prescriptions in the record and the Death Certificate of the victim where it was categorically noted that the patient met a natural death. Unless and until the allegations brought against the Hospital Authority is substantiated by any Medical Expert’s opinion, we are unable to accept the allegations brought against the Hospital Authority as sacrosanct and can impose any penalty upon them. Hon’ble National Commission also held in Dr. Harkanwaljit Singh Saini Vs. Gurbax Singh and Another, reported in I (2003) CPJ 153 (NC) that “in ab

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sence of expert opinion, the Commission cannot constitute itself to expert body and contradict statement of doctors” and in the present case it is stated that the patient met his natural death. Hon’ble Supreme Court in Martin F.D’Souza Vs. Mohd. Ishfaq, reported in 2009 CTJ 352 (SC), held that “the Consumer Forums and the courts are not experts in medical science and must not substitute their own views over those of the specialists”. Since the complainants did not produce any expert’s opinion before us for proving their allegations of medical negligence causing the death of their patient, we are unable to accept the allegations against the hospital or its doctors, as the case may be. No doubt the complainants made out a case alleging ‘medical negligence’ and ‘deficiency in service’ against the OP/Hospital but such allegation was not substantiated by any medical expert’s opinion, as pointed out earlier, the reason best known to them. In the back ground, we find reasons to believe that the complainants conducted their case half heartedly and in the absence of any medical expert’s definite opinion regarding medical negligence we are unable to hold that the complainants deserve any relief in the instant case. Accordingly, we dismiss the Complaint Case. We do not pass any order as to costs.