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Premier Nursing Home v. Smt. Sumita Nath
2001 (2) CPR 303
STATE CONSUMER DISPTUES
REDRESSAL COMMISSION, WEST BENGAL : CALCUTTA
Consumer Protection Act, 1986 – Sections 15 r/w 12(1) (d) (ii) and 2(1) (0) r/w 2(1) (g) – Appeal against order of District Forum – Complaint filed claiming compensation for medical negligence in performing operation – Claim against doctor but nursing home also made party – Forum granting compensation against both – Appeal by Nursing home – Whether award for compensation, so far as it relates the Nursing Home. Accordingly, the Appeal succeeds and the order of the Forum so far as it directs payment of compensation by the Nursing Home is set aside. (Para 5)
Held Finally : In view of what goes before the appeal succeeds and the award of compensation so far as it relates to Nursing Home is set-aside. (Para 6)
Result : Appeal allowed accordingly.
Counsel for the parties:
For the Petitioner / Appellant : Mr. Prabir Basu and A. Dutta, Advocates.
For the Respondent / O.P.S. : Mr. T.K.Dutta and S. Banerjee, Advocates.
Where no claim for compensation was made against the nursing home, award of compensation against the nursing home, apart from the guilty doctor, is not justified.
S.C. Datta, President – This is an appeal by the Premier Nursing Home against the order of the Forum directing it to pay a compensation of Rs.20,000/- to the complainant on the ground of deficiency in service. It was Op-2 before the Forum whereas Dr.Anutosh was Op-1 before the Forum. The complainant is Smt. Sarmila Nath. She approached the Forum claiming compensation for the sum of Rs.3,42,076/- against OP-1. She has also prayed for cancellation of the registration of the Nursing Home as well as of the Doctor. It may be observed that no claim for compensation was made against the Nursing Home but the Forum had awarded a sum of Rs.20,000/- as compensation against the Nursing Home as well.
2. Aggrieved thereby the present appeal has been preferred by the Nursing Home, bur the Doctor did not prefer any appeal against the decision of the Forum. The Ld. Counsel appearing for the Appellant submits that the Forum has made out a new case of its own and passed an award for compensation against the Nursing Home. According to him the complainant did not make any allegation about the deficiency in service on the part of the Nursing Home nor did the complainant make any prayer for compensation against it, yet the Forum has chosen to make out a short case and to award compensation against it. It submits further that there is no evidence worth the name to show that there was negligence on the part of the Nursing Home in the matter of treatment of the Complainant.
3. What happened in this case is that the complainant was a regular patient of OP-1. She gave birth to a female baby on 19-8-1996 by Caesarean Operation performed by OP-1. After delivery she felt uncomfortable and again consulted the Doctor who referred her to one Dr. G.S.Kundu with report of Sonography, Dr. Kundu prescribed several test which were done at Calcutta Medical Center. After several days two Abscesses appeared on the lower abdomen and the same burst. She was admitted to a Nursing Home on the advise but the trouble continued. She consulted Doctor Urmila Khanna who suggested scanning of lower abdomen and the pus culture. Thereafter, she met Dr. Sital Ghosh, an eminent physician who suggested operation at Kothar Medical Centre. The operation was done on 18-11-1996 by Dr. Ashok Banerjee. When it was detected that a Mop had been left in the abdomen and in consequence of the existence of the mop the two big abscesses appear in her stomach. After the said mop was taken out from her abdomen she was cured. So, the complainant approached the Forum claiming compensation against the Doctor and cancellation of registration of the Nursing Home.
4. Both sides filed written objection and the definite stand of the present Appellant is that it had been unnecessarily dragged in this case. According to it, the entire responsibility of the treatment of the patient lies with the concerned Doctor and the Nursing Home is not responsible for the situation in any way.
5. It appears that a female child was born to the Complainant on 19-8-1996 by Caesarean Operation performed by OP-1. It appears that the Complainant having felt uncomfortable in the Stomach had undergone various tests and was under the treatment of several physicians. Even the Ultra Sonography Test could not detect the mop in the abdomen of the complainant. Ultimately, the said mop was brought out by Dr. Asoke Banerjee attached to Kothari Medical Centre on 18-11-1996. She alleges negligence on the part of the Doctor in the matter of caesarean operation and follow up treatment. But nowhere in the petition of complaint, the Complainant had made any allegation of negligence on the part of the Nursing Home. In the prayer portion, she had, of course, claimed cancellation of the registration of the Nursing Home, Ld. Counsel appearing for the Nursing Home submits that the Forum was wholly wrong in awarding compensation against Nursing Home in such circumstances. As indicated earlier, nowhere in the four corners of the complaint petition the complainant had made any allegation about deficiency in service on the part of the Nursing Home. Yet, the Forum was pleased to pass an award against the Nursing Home. It appears that the Forum has referred to a book titled Operation Theatre Technique to notice that it was the duty of the Serub Nurses to keep a very careful check on the instrument. Needles and swabs and packs etc. used in the Operation and she should be able to account for all at any stage of the operation. She should always inform the Surgeon on their correctness before being asked and must obtain acknowledgement in other cases. The Forum, of course, noticed that the overall responsibility of the operation remains with the Surgeon. It is not known who was the scrub Nurse who assisted the Surgeon during operation and whether every possible care was taken to ensure that nothing remains in the abdomen before the wound was stitched up. As noticed earlier, the Complainant has not made any specific allegation against the Nursing Home nor did she adduce any evidence to establish negligence on its part. In the circumstances, we think that the Forum was not justified in passing award for compensation against the Nursing Home. So, the portion of the award against the Nursing Home cannot be sustained. We think and hold that the Forum was not justified in passing a decree against the Nursing Home. Accordingly, the Appeal succeeds and the order of the Forum so far as it directs payment of compensation by the Nursing Home is set-aside.
6. It may be mentioned that the Surgeon has not appealed. During hearing it was submitted that the Doctor has since paid the amount of compensation. Be that as it may we do not think it necessary to decide whether the award of compensation against the Surgeon is justified or not. In view of what goes before the appeal succeeds and the award of compensation so far as it relates to Nursing Home is set-aside.
7. With this observation, the Appeal be disposed of.
Appeal allowed accordingly.
Dr Narayan Choudhary & Anr v Dr (Mrs ) Rita Poddar & ors.
1997(3) CPJ 557 : 1998 (3) CPJ 66 (WB SCDDRC)
The appellant pleaded against the District Consumer Redressal Forum’s order of allowing the case to proceed against a nursing home as a sum of Rs 5529 /- was paid to the nursing home under a receipt but there was no ultimate receipt analysing how the money was spent, nor any evidence showing that the money was paid to doctors, the district forum held that the complaint was not maintainable against the doctors.
The State Commission dismissed the appeal of the owner of the nursing home of not allowing the complaint against him , and upheld the decision of the District Forum and directed proceeding with the case.