ORDER

Res ipsa loquitur is not a cause of action but a rule of evidence. It eliminates the need for expert testimony on the standard of care and if the standard of care was breached, but it does not eliminate the complainant’s need to establish the causation.

1.       The present Complaint has been filed under section 21 of the Consumer Protection Act, 1986 by Smt. Barnali Chowdhury (Complainant No. 1) and her son – Master Samanway Chowdhury (Complainant No. 2) against the Woodlands Medical Centre, Kolkata (for short ‘Woodland Hospital – OP-1), Dr. Rajesh Jindel, Oncologist In charge (OP-2) and  Dr. Sanjay Patwari, Anesthetist (OP-3) for alleged medical negligence causing death of Kuntal Chowdhury due to   administration of Vincristine intrathecally.

2. The Complaint:   

2.1               In Feb-March 2008, Mr. Kuntal Chowdhury (since deceased, hereinafter referred to as the ‘patient’) was diagnosed as   Stage IIB Non-Hodgkin’s Diffuse large B-cell lymphoma (NHL- DLBCL) at Tata Memorial Hospital (TMH), Mumbai. He was  under treatment of Dr. Purvish M. Parikh Professor and Head of Department of Medical Oncology. The  Chemotherapy  by MCP 842 protocol was advised. At the end of March, the patient was airlifted to Kolkata and for chemotherapy (chemo) under consultation of  Dr. Rajesh Jindel, the Medical Oncologist (OP-2). He advised the patient to get admitted in Woodlands Medical Centre, Kolkata (OP-1). The Chemo port insertion was done on 01.04.2008 and thereafter, till 11.06.2008 the patient completed three Chemo cycles uneventfully. All 3 cycles were tolerated, no adverse reaction and the patient was comfortable. He gained around 10 to 12kg of weight.

2.2               On 17.02.2008, for B2 cycle the patient consulted OP-2 in his private clinic and as he advised, the patient got admitted to OP-1 in morning on 18.06.2008.  It was alleged that at about 10.30 am Dr. Sanjay Patwari (OP-3) administered Chemo. He Intrathecally (IT) injected Vincristine instead of it was to be given Intravenously (IV).  Thus, due to wrong administration of Vincristine intrathecally, the patient’s condition alarmingly deteriorated. On 20.06.2008, realizing the precarious condition of the patient and in order to wash off their hands form willful negligence the patient was discharged by OP-1 and 2  and referred him to TMH, Mumbai for emergency management. The patient was airlifted to Mumbai and admitted in TMH. He was admitted under Dr. Reena Nair, Additional Professor, Department of Medical Oncology with symptoms of fever, weakness of lower limb and urinary retention. Neurology reference was also taken. Dr. Reena Nair counseled the family members of the patient about very slim chances of survival because of progressive deteriorating condition. Therefore on 24.06.2008 the patient was shifted at Belle Vue Clinic, Kolkata.In the meantime, on 07.07.2008 a complaint was filed before  West Bengal Medical Council (WBMC)  by the  family of patient  against the OPs for willful negligence. The patient unfortunately passed away on 09.07.2008.

2.3     Being aggrieved, by the untimely death of the patient at the age of 37 years, who was working as a Software Engineer and sole earning member of the family, the patient’s wife and minor son have filed the instant Consumer Complaint before this Commission and prayed Rs. 3.10 Crore as compensation.   

3.      Defense:

All the OPs have filed their respective Written Versions.

3.1    Reply of Woodland Medical Centre (OP-1)

          The Director – Mr. Probir K. Bose filed reply on behalf of OP-1. He submitted that the Complaint is not maintainable against the OP-1. It involves complicated question of facts, which cannot be adjudicated in summary proceedings under the Consumer Protection Act, 1986 and the Civil Court is appropriate to decide such matter. The death of the patient was admittedly an act of negligence alleged to have been committed by the OP-2 and OP-3. Both the doctors were not associated directly with Woodland Hospit