published in http://188.8.131.52/ncdrcrep/judgement/00130816122903619FA56506%20.htm
FIRST APPEAL NO. 565 OF 2006
(Against the order dated 06.06.2006 in S.C.Case No.339/O/1997 of the State Commission, West Bengal)
The Mission of Mercy Hospital
& Research Centre,
125/1, Park Street, Town of
Calcutta, Calcutta-700017 …..Appellant
1. Shri N.C.Majumder
S/o Late Surendra Kumar Majumder
Residing at 89, S.G.D.Road, Birati,
Post Office –Birati, Police Station-
Nimta, District 24-Parganas (North)
2. Dr. S.Majumder,
Haematology Department and working
for gain as Medical Officer/Attendant
Under the Opposite Party No.1 at-
125/1, Park Street, Kolkata-700017
3. Dr. D.Halder, working for gain as
Medical Officer/Medical Attendant
Under the Opposite Party No.1 at-
125/1, Park Street, Kolkata-700017
4. SISTER-IN-CHARGE of Opposite Party
No.1, in the Haematology Department,
125/1, Park Street, Kolkata-700017 …..Respondents
HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Appellant : Mr. Amit Ray and Ms. Tatini Basu, Advocate
For the Respondents : NEMO
PRONOUNCED ON: 12-08-2013
PER MR. VINAY KUMAR, MEMBER
This appeal has been filed against the order of West Bengal State Consumer Disputes Redressal Commission in Consumer Complaint 339/O/1997. The State Commission has allowed the Complaint against OP Nos.1, 2 and 3, simultaneously dismissing it against OP No.4. Total compensation of Rs.4 lakhs has been awarded in favour of the Complainant. Of this, Rs.3 lakhs is ordered to be paid by OP-1/ Mission of Mercy Hospital and Research Centre and Rs.50,000/- each by OP Nos.2 and 3.
2. The case of the Complainant before the State Commission was that his wife, late Binapani Majumder was a case of Refractory Anemia since June, 1996 and on medical advice she was admitted in the OP Hospital on 11.2.97. After admission she was given saline and other preventive medicines. On 12.2.97, Dr. R.N. Dutta advised administration of saline/blood transfusion and other medicines for malaria prevention and also injection for refractory anemia ailment. On 13.2.97, she was administered Hemax Injection. Methylprainisiolone (i.v.) and blood transfusion etc. According to the complainant, no blood is transfused to a patient in a frozen condition without warming up the blood at least uptothe patient’s body temperature. After administration of the above injection, cold blood was transfused in flagrant violation of the basic medical norm or practice and within 2/3 minutes of pushing the injection this cold blood transfusion instantly had a cascading effect on his wife and she developed convulsion-condition. According to the complainant on 15.02.97, the patient developed restlessness, insomania, severe pains all over her body and also breathing trouble. Complainant alleged that no care was taken by the Staff Nurse or the doctor and when on 16.02.97 he went to the Hospital his wife was groaning and crying. Complainant further alleged that on 16.2.97, the Duty Medical Officer without consulting Dr. R.N. Duttainstructed the nurse to inject two injections namely Fortwin I vial and Calmpose I vial to the Refractory Anemia patient in total disregard of all medical norms and ultimately his wife expired. Complainant filed a consumer complaint alleging medical negligence against the OP Hospital and doctors.
3. A perusal of the impugned order shows that the State Commission, while allowing the complaint, has placed substantial reliance upon the expert opinion of Dr. S.K. DuttaChaoudhary, produced on behalf of the Complainant. The Commission has observed that:-
“In paragraphs 9,10,11 of his Affidavit (page 92 & 93 of the Paper Book) this expert doctor has opined that a person suffering from ailment or having low blood pressure on poor heart condition is never administered two medicines namely injection Calmpose and injection Fortwin and according to his opinion the Cardiac failure as recorded in the Death Certificate of the patient was directly due to the administration of the said two medicines in such a physical condition of the patient as has been already described above. The doctor has further stated that supporting treatment by way of Oxygen and Saline could have saved her. With this opinion of expert is added the circumstances that there is no record forthcoming from the O.Ps to show that the blood pressure or pulse rate of the patient was ever checked by Dr.Halder during his period of crisis before the fatal injection was administered. It is also on record that this Dr. Halder who was In-Charge did not requisition any Oxygen cylinder or mask or saline to save the life of the patient.”
4. However, during the course of hearing of this appeal, it was observed that the above medial expert examined on behalf of the Complainant before the State Commission had died before the OPs had any opportunity to cross examine him. It was therefore, decided to refer the matter to the All India Institute Medical Sciences, New Delhi for opinion. Accordingly, a four member Medical Board was constituted by the Medical Superintendent, AIIMS. Its report has been received and perused. The record of the State Commission has also been summoned and perused.
5. In another significant development during the hearing of this appeal, the Complainant Shri N.C. Majumdar passed away. The application to bring the LRs on record was allowed on 26.7.2012. However, notices sent to the LRs on 27.4.2011, 14.9.2011, 01.10.2012 and on 14.5.2013 have not yielded any results. They have remained unclaimed. In between, the Commission had also directed on 3.7.2009 that the sum of Rs.1 lakh deposited by the appellant should be permitted to be withdrawn by the respondent/Complainant, subject to furnishing adequate security to the satisfaction of the Registrar of this Commission. It is learnt from the Registry that this amount was not withdrawn by the respondent/Complainant and is still available as deposit in the name of the Registrar of this Commission.
6. In the reference made by this Commission to the AIIMS, specific opinion had been sought on four points. The expert report received is directly with reference to those four points. They are listed below:-
“Question (i). Whether the reaction/convulsion which the patient developed immediately after transfusion of blood on 13.02.97 is attributable to the transfusion of cold blood without bringing it to the level of normal human body temperature?
Answer: There is no evidence of any reaction/convulsion on 13.02.1997 after the blood transfusion as per given medical record.
Question (ii).Whether the reactions/convulsions which the patient developed after transfusion of blood on 15.02.97, were managed properly?
Answer: There is no record of any convulsion on 15.02.1997. Patient had rigors (shivering) on 15.02.1997, which was managed accordingly.
Question (iii). Whether the administration of injections, Calmpose and Fortwin on 16.02.97 was contra-indicative keeping in view the health condition, including the cardiac condition, of the patient ?
Answer: Medical records do not mention any details of patient cardiac conditions. According to medical records inj. Fortwin & inj. Calmpose were administered intramuscularly (I/M) due to restlessness and pain. However, the reasons of restlessness and pain is difficult to assess from the medical record.
Question (iv) Whether the death of the deceased on 16.02.97 is directly or indirectly attributable to the said complications which followed after blood transfusion on 13.02.97 and after administration of injections on 16.02.97.
Answer: It seems unlikely that the blood transfusion on 13.02.1997 resulting in the event of death on 16.02.1997. It also seems unlikely that intramuscular (I/M) administration of Inj. Fortwin and Inj. Calmpose would have caused the cardio-respiratory arrest. Her primary condition of refractory anaemia is also not recorded properly in the medical recortds.”
7. The complaint petition before the State Commission itself accepts that the deceased was suffering from the condition of ‘refractive anaemia’. As per the medical lexicon, it is a condition of unresponsiveness to treatment. Considering this in the light of the opinion categorically expressed in the report of the AIIMS, the finding of State Commission that it was a case of gross negligence cannot be sustained.
8. Consequently, the appeal of Mission of Mercy Hospital/OP-1 before the State Commission is allowed and the order of the West Bengal State Consumer Disputes RedressalCommission in Consumer Complaint No.339/0/1997 is set aside, qua the appellant. The deposit of Rs.1 lakh made by the Appellant together with the accrued interest and the statutory amount of Rs.35,000/- are directed to be released in favour of the Appellant.
(ASHOK BHAN, J)