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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
D.K. Jain, President and Mrs. Vineeta Rai, Member
Dr. Baidya Nath Chakraborty, Consultant of Institute of Reproductive Medicine
& Ors. —Appellants
versus
Shri Chandi Bhattacharjee
& Ors. —Respondents
First Appeal No. 19 of 2009
(From the order dated 31.10.2008 in Complaint No.110/0/2000 of the West Bengal State Consumer Disputes Redressal Commission.)
Decided on 24.4.2014
For the Appellant :Mr. S.K. Ghosh and Mrs. Rupali Ghosh, Advocates
For Respondent No. 1: In person.
IMPORTANT POINT
Consent of patient cannot be used as a defence against medical negligence.
Headnote:(i) Torts—Negligence—Negligence is omission to do what law requires, or failure to do anything in a manner prescribed by la—It is the act which can be treated as negligence without any proof as to surrounding circumstances because it is contrary to dictates of ordinary prudence—Negligence is strictly nonfeasance and not malfeasance—Law of negligence applies to doctors as it applies to other professionals like lawyers, architects, etc., as they are required to perform the task assigned to them with requisite skill and expertise possessed by them for performing that task—Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that skill which he professes to possess shall be exercised with reasonable degree of care and caution. (Paras 9 and 12)
(ii) Torts—Medical Negligence—A doctor cannot be held negligent if he has acted with normal care in accordance with a recognized practice—Conduct of a general practitioner is to be judged on touchstone of conduct of a general practitioner, whereas conduct of a professed specialist has to be at par, if not better, with conduct of a similarly skilled specialist—A specialist has to exercise a higher degree of care than a generalist—Even amongst specialists if one specialist claims that he is better skilled as compared to others in same field, general perception and expectation in mind of patient would be of a better and higher degree of treatment and care as compared to other specialists—This expectation imposes a greater degree of care upon such a super specialist. (Para 16)
(iii) Consumer Protection Act, 1986—Sections 17, 19 and 21—Medical services—Medical negligence—Death of pre-term baby after delivery—State Commission directed Appellants to pay to Complainant a sum of Rs.1.5 Lakhs and Rs.1 lakh respectively as compensation with costs—Having already suffered two miscarriages, Complainant and his wife consulted Appellant with hope that being a specialist, they would get best possible treatment and care from Appellants—Ante natal care is an extremely important and integral part of medical care—Appellants had failed to provide to Complainant and his wife requisite ante natal care which they were required to provide—No neonatal facilities were available in Nursing Home where preterm delivery was conducted—Even a Neonatologist was not available at the time of delivery—Consent procured by Appellants does not absolve them from their obligation to render due care to Complainant’s wife and their preterm baby it cannot be used as a defence for their negligence—Appeal dismissed with costs of Rs. 50,000/-. (Paras 18, 19, 20, 26 and 27)
Result: Appeal dismissed with costs.
D.K. Jain, President—This appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”), has been preferred by the Consultant (Appellant No. 1), the doctor-in-charge (Appellant No. 2) and the Institute of Reproductive Medicine, Kolkata (Appellant No. 3), questioning the correctness and legality ofORDER dated 31.10.2008 passed by the State Consumer Disputes Redressal Commission, West Bengal (for short “the State Commission”) in Complaint No. 110/0/2000. By the impugnedORDER, the State Commission has, inter alia, directed Appellants No. 1 and 2 to pay to the Complainant a sum of Rs.1.5 lakhs and Rs.1 lakh respectively as compensation with costs, etc., on account of medical negligence on their part in treating and taking care of his wife and their preterm baby, who died within few hours of his birth.
2. The salient facts, as narrated in the Complaint, are that after two miscarriages, the Complainant and his wife decided to consult Appellant No. 1, Dr. Baidya Nath Chakraborty, considered to be a specialist in reproductive medicine. The doctor examined the lady on 17.01.1996 and 11.04.1996 and prescribed certain medicines, whereafter she conceived the third time. On one of the visits to Appellant No. 3 Institute, on 22.01.1997, a consent form for treatment at the Institute was got signed from the Complainant and his wife. On 10.02.1997, when his wife felt discomfort, she was taken to the Institute where she was advised to get admitted in one Merryland Nursing Home, Opposite Party No. 4 in the complaint and Respondent No.2 in this Appeal, as it was stated that the deliveries of all patients under the treatment of Appellant No.1 were performed at the said Nursing Home, managed by Appellant No 2; certain medicines were prescribed by the doctor and she was discharged. Again on 04.03.1997, for the same discomfort, when she was in her 28th week of pregnancy, she had to be admitted to the same Nursing Home. She was attended to by the same doctor who had attended on her on the earlier occasion. While she remained admitted in the said Nursing Home, neither Appellant No. 1 nor Appellant No. 2 visited her. On 08.03.1997, i.e. after four days of her admission, from 12.30 p.m. to 7.30 p.m., while she was ‘trembling’ and was ‘in great pain’ still despite repeated requests, Appellant No. 1 did not examine her as he was stated to be busy in a seminar. It was around 9.30 p.m., that Appellant No. 2, wife of Appellant No.1, performed the preterm delivery in the absence of any Neonatologist. Since there was no arrangement for neonatal care in the Nursing Home for a preterm infant, at Complainant’s request, the Nursing Home staff contacted one Dr. Amit Roy, a Neonatologist, who advised them to shift the baby to the Peerless Hospital and B.K. Roy Research Centre, Respondent No. 3 in this appeal. The baby was shifted to the said hospital in a taxi and admitted around at 2.10 a.m. on 09.03.1997. However, he expired the same morning at 8.55 a.m.
3. Alleging gross negligence on the part of the Appellants, the Complainant filed complaint under Section 17 of the Act, praying for compensation of Rs.10 lakhs for the death of the baby and for loss of mental balance of his wife because of excessive shock, mental and physical pain/torture on account of death of the child.
4. The complaint was contested by the Appellants as also by the Nursing Home. A common written statement was filed by Appellants No. 1 to 3. The Nursing Home and Peerless Hospital filed their separate objections. All the allegations of medical negligence either in diagnosis, prescription of medicines or inadequate attention by the Nursing Home were denied. It was stated that when Complainant’s wife experienced labour pain on 08.03.1997, Appellant No. 2 had herself conducted the delivery, which was normal; she had herself contacted the Neonatologist at the Peerless Hospital and arranged for shifting of the infant to the said hospital. It was also stated that the exigency
