Tapan Kumar Baur Propretor, Arogya Nikentan Nursing Home v. Ashim Banerjee, FIRST APPEAL No. 490 of 2015 decided by National Consumer Disputes Redressal Commission, New Delhi on 03 June 2019
Facts: On 29.08.1999, Complainant, Ashim Banerjee’s daughter, Ms. Rita aged about fifteen years suffered severe abdominal pain and was taken to Nursing Home of OP-1 at 7.00 a.m., were verbally told that the condition of patient was serious due to burst of appendix and the patient would die if not treated immediately, 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, patient was taken to operation theatre (OT) in the night, and operation was completed around 9.30 pm. After the operation the patient was unconscious, Complainant was not allowed to see his daughter, 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.
Defense: 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.
Order: State Commission directed the OP – 1 to pay compensation of Rs. 2 lakh and litigation cost of Rs.20,000/- to the complainant, the OP- 2 to pay Rs. 1 lakh as compensation and Rs.20,000/- towards litigation cost. No deficiency against OP no.3 could be seen as patient was brought dead to the OP- 3.
Observations: 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.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.
Held: 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. 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 bonafide 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. 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. 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 .
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.