SOMRAJ SEN Vs. KOTHARI MEDICAL CENTRE

JUDGEMENT

(1.) On 4/2/2012, Dr. Arunima Sen, a young practicing physician (since deceased -hereinafter referred to as the'patient') consulted the Gynaecologist - Dr. Samir Roy (hereinafter referred to as the 'OP-2') for her pelvic pain during menses. As prescribed, she took Oral Contraceptive Pills from July, 2012 to March, 2013, got relief for that period and then the medicines were stopped. Again on 19/3/2013, she developed pain and consulted the OP- 2, who advised 'D and C' laparoscopic Dye Test. As it was an invasive procedure, the patient did not agree for the test. However, during subsequent visits on 30/4/2013, 31/10/2013 and 22/2/2014, the OP-2 insisted for the test. Therefore, the patient agreed and the test was fixed to be done on 5/3/2014 in Kothari Medical Centre (OP-1). It was alleged that on 5/3/2014, the procedure commenced at about 9.50 am, however within 15 minutes of its commencement, Dr. Samir Roy informed the patient's husband Dr. Somraj Sen (Complainant No. 1) that the patient suffered a massive Cardiac Arrest and no hope of survival. At 11.15 am, the patient was shifted to ICU, but while shifting, the patient's attendants did not notice any signs of life. It was alleged that the patient was pretentiously taken to ICU to give false impression of continuing treatment. The patient was declared dead at about 1.30 p.m. The Complainants alleged that the death was due to gross medical negligence of the Hospital and the OP-2. The Complainant lodged an FIR before Alipore Police Station registered U/S 304A/34 of IPC. The post mortem examination was done at the Katapukur Morgue, which prima facie revealed cause of death being surgical procedure. According to the Complainants, it was a case of res-ipsa loquitur. The patient's husband, after the incident, took opinion of few expert doctors, which revealed gross negligence of the OP- 2. He was lacking skill to perform D and C Laparoscopic Dye Test and performed the procedure even though the patient was not willing.

(2.) It was further alleged that the OP-2 failed in his duty of care and caused bowel injury to the patient, which went unnoticed. The video recording of the procedure was not done. The Complainant further alleged that it was negligence per se of Anaesthetist - Dr. Jyotsana Basu - OP- 3, who failed to do pre-aesthetic checkup (PAC). The Complainant further alleged that as per anaesthesia prescription, no pre-operative medicines (sedatives) were given and anaesthesia chart shows interpolation, it was not maintained properly. The OP- 3 administered anaesthesia without safety measures like multi-channel monitors and the procedure was done without Capnograph machine. The OPs- 2 to 8 were also negligent, who failed to detect the deteriorating condition of the patient and failed to revive her during cardiac arrest due to lack of emergency equipment in the operation theatre. The endometrial tissue was not sent for histopathology and the hospital stated that it was misplaced.

(3.) Thus, being aggrieved by the gross medical negligence on the part of OPs, the Complainants have filed this complaint under Sec. 21(a)(i) of the Consumer Protection Act, 1986 and prayed for compensation to the tune of Rs.50,47,59,167.00 against OPs - 1 to 8 jointly and/or severally along with 18% interest. Defense: