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	Important judgements passed by the Consumer Courts When a patient is critical, even if the hospital does not have the resources to undertake the surgery, it will be considered as negligent, if does not arrange for shifting the patient to another hospital, which has the resources. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI FIRST APPEAL NO. 490 OF 2015 (Against the Order dated 25/05/2015 in Complaint No. 04/2000 of the State Commission West Bengal) TAPAN KUMAR BAUR & ANR. PROPRIETOR OF AROGYA NIKENTAN NURSING HOME, VILLAGE: SHYAMSUNDARPUR, P.S.- DASPUR, POST DHARAMPUR, DISTRICT: PASCHIM MEDINIPORE, WEST BENGAL ...........Appellant(s) Versus ASHIM BANERJEE SON OF BIBHUTI BANERJEE, OF VILLAGE: BELTALA, POST OFFICE: DASPUR, DISTRICT-MEDINIPORE (WEST) ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL, PRESIDENT HON'BLE MR. DR. S.M. KANTIKAR, MEMBER Dated : 03 Jun 2019 ORDER HON’BLE DR. S.M. KANTIKAR, MEMBER On 29.08.1999, Complainant, Ashim Banerjee’s daughter, Ms. Rita aged about fifteen years (for short, ‘patient’) suffered severe abdominal pain and was taken to Nursing Home of OP-1 at 7.00 a.m. According to the Complainant, the OP-1 verbally told that the condition of patient was serious due to burst of appendix and the patient would die if not treated immediately. The patient was not admitted but, kept waiting in the veranda of nursing home. In the evening without disclosing the actual disease, one staff of OP-1 nursing home took few signatures of the Complainant on typed papers. The patient was taken to operation theatre (OT) in the night. The operation was completed around 9.30 pm. After the operation the patient was unconscious, Complainant was not allowed to see his daughter. At about 11.30 p.m., the OP-1 and 2 took the patient in serious condition to Ghatal S. D. Hospital by ambulance. It was only then; the Complainant came to know about the death of his child. OP-3 did not issue the death certificate. Being aggrieved by the death due to alleged negligence and deficiency during treatment from the OPs, the complainant filed a consumer complaint before the State Commission, West Bengal. 2. Both the OPs have filed their respective written versions and denied all allegations. According to the OPs, the patient had the problem since four months prior to the date of operation. On 29.08.1999, the patient was brought to the nursing home in serious condition. The medical officer Dr.M.Maity examined the patient at 7 am and asked the Complainant to take the patient to the State Hospital or S.D Ghatal Hospital. But, the Complainant expressed his inability to shift the patient elsewhere. Therefore, on humanitarian ground decision to operate the patient was taken by OPs. As, there was no surgical team available in the OP- 1 (Hospital), therefore operation was conducted only when the surgical team from S.D Hospital had agreed to assist for the operation. The operation started around at 8:00 p.m and was completed at around 9:30 p.m. The patient did not regain consciousness after the surgery, therefore she was shifted by ambulance to Ghatal S.D. Hospital at about 11:40 pm wherein patient was examined by the doctors in the emergency department, but the patient expired at 1:50 am on 30.08.1999. The Post mortem (PM) was performed, it did not reveal any evidence of surgical mishap. Therefore, there was no negligence on the part of opposite parties. 3. After hearing the parties and considering the evidence on record, the State Commission partly allowed the complaint and directed the OP – 1 to pay compensation of Rs. 2 lakh and litigation cost of Rs. 20,000/- to the complainant. The Commission also directed the OP- 2 to pay Rs. 1 lakh as compensation and Rs. 20,000/- towards litigation cost. Payments to be made within 45 days from the date of passing of the order, failing which, interest @9% per annum shall accrue from the date of default till realization. The complaint against OP- 3 was dismissed as no deficiency could be seen as patient was brought dead to the OP- 3. 4. Being aggrieved, this instant first appeal was filed by OP-1 & 2. 5. We have heard the learned counsel for the parties and perused the material on records. Learned counsel for the Complainant vehemently argued that the patient was brought at 7 am to the nursing home of OP-1. She was unattended and kept in the veranda of the nursing home till evening. Neither blood group nor any pre-operative tests were performed. The serious condition of the patient was never informed to the Complainant. The counsel further submitted that at about 8.30 p.m. the patient was taken to the OT but no gynaecologist or nurse was present there. The OP-2 was not a gynaecologist but he had conducted the surgery. The counsel submitted that the OP- 3, Ghatal S. D. Hospital did not issue death certificate and not given any definite opinion on the post mortem report. Therefore, all the opposite parties caused deficiency and negligence on the part of opposite parties. 6. The counsel for the Appellants /OP 1 and 2 re-iterated the contentions which were raised before the State Commission. 7. We have carefully perused the medical records and the sequence of events. We note that the patient was admitted in OP-1-nursing home at 7.00 a.m. on 29.08.1999. The Medical Officer, Dr. M. Maity examined the patient. The OP- 2 (Dr. Madhusudan Pal -Surgeon) recorded that , it was a critical case of appendicular perforation and the patient was advised to go to the emergency department at Ghatal S. D. Hospital or any other hospital immediately. However, patient’s father expressed his inability to shift the patient. The doctor prescribed some medicines. But the father of the patient expressed his inability to shift the patient. We further note that on 29.08.1999 at 7.15 p.m., the high risk consent from patient’s father was obtained for appendectomy operation. The operation was performed under General Anesthesia by the team consisting of surgeon, Dr. Pal (OP- 2) and Dr. B. Khanra, surgical assistant and Dr. B. Banerjee, Anesthetist. The operation was completed around 9.30 pm and at 10.00 pm, the patient’s consciousness went on deteriorating. The anesthetist re-intubated the patient for ventilator support. In-spite the efforts patient’s condition deteriorated further and at 10.15 p.m., the surgical team decided to transfer the patient to Ghatal S. D. Hospital. At about 11.15 p.m., ambulance was arranged and the patient was taken to Ghatal S. D. Hospital with ventilator support accompanied by the surgical team. The patient was unconscious and declared dead at about 1.50 a.m. on 30.08.1999. 8. We have perused the impugned order passed by State Commission which held the OPs liable with following observations as below: From the materials on record it is evident that in spite of making treatment from 7 a.m. onwards the OP Nos. 1 and 2 failed to form a surgical team and when the patient was on the verge of death they requested Dr. Banerjee and Dr. Khanna who came from Ghatal and thereafter the operation was performed. But the condition of the patient by that time was so critical that after operation she could not regain her consciousness. When things came to such a pass the doctors of the OP Nursing Home arranged ambulance with ventilator support and accompanied the patient to the S.D. Hospital, Ghatal, but after admission there as per the note sheet of the Hospital the patient had already expired. The deficiency in service on the part of the OP Nos. 1 and 2 lies in the fact that in spite of starting the treatment from 7 a. m. onwards and knowing the fact very well that it was a case of emergency surgery, they utterly failed to form the surgical team although OP No. 2 was all along present. We have already mentioned that the contention of the non-availability of surgical team is no excuse and it amounts to negligence on the part of the OP Nos. 1 and 2. Moreover when the father of the patient expressed his inability to arrange for vehicle, the doctors of the OP Nursing Home ought to have arranged the ambulance at the very beginning which could have been a bona fide attempt to save the life of the patient. Towards the end the doctors of the OP Nursing Home arranged the ambulance with ventilator support and the patient was taken to S.D. Hospital, Ghatal, but that ended in fiasco. We, therefore, find that OP Nos.1 and 2 are responsible for the deficiency in service and the negligence in their failure to arrange for surgery at the right point of time. 9. We gave our thoughtful consideration to the arguments of both the parties. The main question in the instant case revolves around the doctor’s duty of care towards the patient during emergency. As, admittedly patient was in serious condition when she was brought to the nursing home on 29.08.1999, thus in our view, the OP-1- proprietor of nursing home ought to have arranged a facility to shift the patient in the morning itself. Even otherwise, in our view OP-2 is a surgeon examined the patient at 11 am, knowing well about the serious condition of patient due to suspected appendicular perforation, he instead of just advising patient to shift, he would have made serious attempts to arrange an ambulance or perform the emergency surgery at the earliest by calling doctors from Ghatal Hospital. Under such circumstances, at least conservative management of patient was expected from OP-2. In the instant case nothing was done by the OP-1 and 2, but neglected the serious patient who was just lying in the verandah of nursing home. Thus, during emergency it was not a reasonable care from the OP-1 and 2. It was an act of omission on the part of both the OPs when they knew that the patient was knocking the door of death. 10. Admittedly, there was delay of 12 hours, on humanitarian consideration the OPs decided to operate the patient. They requested the anaesthetist and surgical assistant to come from Ghatal S. D. Hospital and the operation was performed at 9 pm, unfortunately in the instant case the delay of 12 hours proved fatal to the patient. In our view, non-availability of surgical team was a lame excuse. It was total neglect caused further deterioration. In case, if in the morning itself, OPs ought to have arranged an ambulance to shift the patient, but they failed to do so. This amounts to deficiency in service. 11. To know about complications of acute appendicitis, we took reference from the standard books on surgery viz "Text Book of Surgery" by Sabiston, "Short Practice of Surgery" by Baily & Love, and Farquharson's “Textbook of Operative Surgery”. Also reliance be placed upon the case T.T.Thomas Vs Elisa, AIR (1987) Kerala 52 in which similar delay in appendectomy had led to the death of the patient. The Court held that "failure to perform emergency operation and death due to failure amounts to negligence on the part of surgeon". We feel that it is even worse than not starting the treatment at all and permitting the patient to be shifted taken to another hospital immediately. The treatment is to be continued it does not only save the precious time required to transportation to the referral centre but also increase patient’s chance of survival. 12. For the reasons stated hereinabove, we do not find any need to interfere with the reasoned order of the State Commission. The appeal being devoid of any merit is hereby dismissed. Top

When a patient is critical, even if the hospital does not have the resources to undertake the surgery, it will be considered as negligent, if does not arrange for shifting the patient to another hospital, which has the resources.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

FIRST APPEAL NO. 490 OF 2015
(Against the Order dated 25/05/2015 in Complaint No. 04/2000 of the State Commission West Bengal)

TAPAN KUMAR BAUR & ANR.
PROPRIETOR OF AROGYA NIKENTAN NURSING HOME, VILLAGE: SHYAMSUNDARPUR, P.S.- DASPUR, POST DHARAMPUR,
DISTRICT: PASCHIM MEDINIPORE,
WEST BENGAL    ...........Appellant(s)
Versus
ASHIM BANERJEE
SON OF BIBHUTI BANERJEE, OF VILLAGE: BELTALA, POST OFFICE: DASPUR,
DISTRICT-MEDINIPORE (WEST)    ...........Respondent(s)

BEFORE:
    HON'BLE MR. JUSTICE R.K. AGRAWAL, PRESIDENT
    HON'BLE MR. DR. S.M. KANTIKAR, MEMBER

Dated : 03 Jun 2019

ORDER

HON’BLE DR. S.M. KANTIKAR, MEMBER

          On 29.08.1999, Complainant, Ashim Banerjee’s daughter, Ms. Rita aged about fifteen years (for short, ‘patient’) suffered severe abdominal pain and was taken to Nursing Home of OP-1 at 7.00 a.m. According to the Complainant, the OP-1 verbally told that the condition of patient was serious due to burst of appendix and the patient would die if not treated immediately. The patient was not admitted but, kept waiting in the veranda of nursing home. In the evening without disclosing the actual disease, one staff of OP-1 nursing home took few signatures of the Complainant on typed papers. The patient was taken to operation theatre (OT) in the night. The operation was completed around 9.30 pm. After the operation the patient was unconscious, Complainant was not allowed to see his daughter. At about 11.30 p.m., the OP-1 and 2 took the patient in serious condition to Ghatal S. D. Hospital by ambulance. It was only then; the Complainant came to know about the death of his child. OP-3 did not issue the death certificate. Being aggrieved by the death due to alleged negligence and deficiency during treatment from the OPs, the complainant filed a consumer complaint before the State Commission, West Bengal.

2.       Both the OPs have filed their respective written versions and denied all allegations. According to the OPs, the patient had the problem since four months prior to the date of operation. On 29.08.1999, the patient was brought to the nursing home in serious condition. The medical officer Dr.M.Maity examined the patient at 7 am and asked the Complainant to    take the patient to the State Hospital or S.D Ghatal Hospital. But, the Complainant expressed his inability to shift the patient elsewhere. Therefore, on humanitarian ground decision to operate the patient was taken by OPs. As, there was no surgical team available in the OP- 1 (Hospital), therefore operation was conducted only when the surgical team from S.D Hospital had agreed to assist for the operation. The operation started around at 8:00 p.m and was completed at around 9:30 p.m. The patient did not regain consciousness after the surgery, therefore she was shifted by ambulance to Ghatal S.D. Hospital at about 11:40 pm wherein   patient was examined by the doctors in the emergency department, but the patient expired at 1:50 am on 30.08.1999. The Post mortem (PM) was performed, it did not reveal any evidence of surgical mishap. Therefore, there was no negligence on the part of opposite parties.

3.       After hearing the parties and considering the evidence on record, the State Commission partly allowed the complaint and directed the OP – 1 to pay compensation of Rs. 2 lakh and litigation cost of Rs. 20,000/- to the complainant. The Commission also directed the OP- 2 to pay Rs. 1 lakh as compensation and Rs. 20,000/- towards litigation cost. Payments to be made within 45 days from the date of passing of the order, failing which, interest @9% per annum shall accrue from the date of default till realization. The complaint against OP- 3 was dismissed as no deficiency could be seen as patient was brought dead to the OP- 3.

4.       Being aggrieved, this instant first appeal was filed by OP-1 & 2.

5.       We have heard the learned counsel for the parties and perused the material on records. Learned counsel for the Complainant vehemently argued that the patient was brought at 7 am to the nursing home of OP-1. She was unattended and kept in the veranda of the nursing home till evening. Neither blood group nor any pre-operative tests were performed. The serious condition of the patient was never informed to the Complainant. The counsel further submitted that at about 8.30 p.m. the patient was taken to the OT but no gynaecologist or nurse was present there. The OP-2 was not a gynaecologist but he had conducted the surgery. The counsel submitted that the OP- 3, Ghatal S. D. Hospital did not issue death certificate and not given any definite opinion on the post mortem report. Therefore, all the opposite parties caused deficiency and negligence on the part of opposite parties.

6.       The counsel for the Appellants /OP 1 and 2 re-iterated the contentions which were raised before the State Commission.

7.      We have carefully perused the medical records and the sequence of events. We note that the patient was admitted in OP-1-nursing home at 7.00 a.m. on 29.08.1999. The Medical Officer, Dr. M. Maity examined the patient. The OP- 2 (Dr. Madhusudan Pal -Surgeon) recorded that , it was a critical case of appendicular perforation and the patient was advised to go to the emergency department at Ghatal S. D. Hospital or any other hospital immediately. However, patient’s father expressed his inability to shift the patient. The doctor prescribed some medicines.    But the father of the patient expressed his inability to shift the patient. We further note that on 29.08.1999 at 7.15 p.m., the high risk consent from patient’s father was obtained for appendectomy operation. The operation was performed under General Anesthesia by the team consisting of surgeon, Dr. Pal (OP- 2) and Dr. B. Khanra, surgical assistant and Dr. B. Banerjee, Anesthetist. The operation was completed around 9.30 pm and at 10.00 pm, the patient’s consciousness went on deteriorating. The anesthetist re-intubated the patient for ventilator support. In-spite the efforts patient’s condition deteriorated further and at 10.15 p.m., the surgical team decided to transfer the patient to Ghatal S. D. Hospital. At about 11.15 p.m., ambulance was arranged and the patient was taken to Ghatal S. D. Hospital with ventilator support accompanied by the surgical team. The patient was unconscious and declared dead at about 1.50 a.m. on 30.08.1999.

8.       We have perused the impugned order passed by State Commission which held the OPs liable with following observations as below:
From the materials on record it is evident that in spite of making treatment from 7 a.m. onwards the OP Nos. 1 and 2 failed to form a surgical team and when the patient was on the verge of death they requested Dr. Banerjee and Dr. Khanna who came from Ghatal and thereafter the operation was performed. But the condition of the patient by that time was so critical that after operation she could not regain her consciousness. When things came to such a pass the doctors of the OP Nursing Home arranged ambulance with ventilator support and accompanied the patient to the S.D. Hospital, Ghatal, but after admission there as per the note sheet of the Hospital the patient had already expired. The deficiency in service on the part of the OP Nos. 1 and 2 lies in the fact that in spite of starting the treatment from 7 a. m. onwards and knowing the fact very well that it was a case of emergency surgery, they utterly failed to form the surgical team although OP No. 2 was all along present. We have already mentioned that the contention of the non-availability of surgical team is no excuse and it amounts to negligence on the part of the OP Nos. 1 and 2. Moreover when the father of the patient expressed his inability to arrange for vehicle, the doctors of the OP Nursing Home ought to have arranged the ambulance at the very beginning which could have been a bona fide attempt to save the life of the patient. Towards the end the doctors of the OP Nursing Home arranged the ambulance with ventilator support and the patient was taken to S.D. Hospital, Ghatal, but that ended in fiasco. We, therefore, find that OP Nos.1 and 2 are responsible for the deficiency in service and the negligence in their failure to arrange for surgery at the right point of time.

9.       We gave our thoughtful consideration to the arguments of both the parties. The main question in the instant case revolves around the doctor’s duty of care towards the patient during emergency. As, admittedly patient was in serious condition when she was brought to the nursing home on 29.08.1999, thus in our view, the OP-1- proprietor of nursing home ought to have arranged a facility to shift the patient in the morning itself. Even otherwise, in our view OP-2 is a surgeon examined the patient at 11 am, knowing well about the serious condition of patient due to suspected appendicular perforation, he instead of just advising patient to shift, he would have made serious attempts to arrange an ambulance or perform the emergency surgery at the earliest by calling doctors from Ghatal Hospital. Under such circumstances, at least conservative management of patient was expected from OP-2. In the instant case nothing was done by the OP-1 and 2, but neglected the serious patient who was just lying in the verandah of nursing home. Thus, during emergency it was not a reasonable care from the OP-1 and 2.   It was an act of omission on the part of both the OPs when they knew that the patient was knocking the door of death.

10.     Admittedly, there was delay of 12 hours, on humanitarian consideration the OPs decided to operate the patient. They requested the anaesthetist and surgical assistant to come from Ghatal S. D. Hospital and the operation was performed at 9 pm, unfortunately in the instant case the delay of 12 hours proved fatal to the patient. In our view, non-availability of surgical team was a lame excuse. It was total neglect caused further deterioration. In case, if in the morning itself, OPs ought to have arranged an ambulance to shift the patient, but they failed to do so. This amounts to deficiency in service.

11.     To know about complications of acute appendicitis, we took reference from the standard books on surgery viz "Text Book of Surgery" by Sabiston, "Short Practice of Surgery" by Baily & Love, and Farquharson's “Textbook of Operative Surgery”. Also reliance be placed upon the case T.T.Thomas Vs Elisa, AIR (1987) Kerala 52 in which similar delay in appendectomy had led to the death of the patient. The Court held that "failure to perform emergency operation and death due to failure amounts to negligence on the part of surgeon". We feel that it is even worse than not starting the treatment at all and permitting the patient to be shifted taken to another hospital immediately. The treatment is to be continued it does not only save the precious time required to transportation to the referral centre but also increase patient’s chance of survival.

12.     For the reasons stated hereinabove, we do not find any need to interfere with the reasoned order of the State Commission. The appeal being devoid of any merit is hereby dismissed.