NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
FIRST APPEAL NO. 452 OF 2014
 
(Against the Order dated 30/06/2014 in Complaint No. 65/2010 of the State Commission West Bengal)
WITH
IA/2699/2016,IA/5477/2015
1. APEX INSTITUE OF MEDICAL SCIENCE
A UNIT OF APEX HOSPITEX AND NEUROSCIEENCE LTD., HAVING ITS REGISTERED OFFICE AT 1219, SURVAY PAR, SANTOSHPUR,
KOLKATA-700075
WEST BENGAL
...........Appellant(s)
Versus 
1. PAPIA BANERJEE & 3 ORS.
WIDOW OF LATE NILOY BANERJEE, RESIDING AT A139, LAKE GARDENS,
KOLKATA-700075
WEST BENGAL
2. DR. TIRTHANKAR BHATTACAHRYA,
R/O. AT 2/145, SHREE COLONY,
OLATA-700092
3. DR. SANDIP ROY,
RESIDING AT FLAT NO. 14A1, BAY TOWER, HILAND PAR, CHAK GARIA,
KOLKATA-700094
4. THE DIRECTOR, APEX INSITUTE OF MEDICAL SCIENCE,
1219, SURVAY PARK SANTOSPUR, P.S. JADAVPUR,
KOLKATA-700075
WEST BENGAL
...........Respondent(s)
FIRST APPEAL NO. 453 OF 2014
 
(Against the Order dated 30/06/2014 in Complaint No. 65/2010 of the State Commission West Bengal)
WITH
IA/2699/2016,IA/5477/2015
1. DR. SUSANTA BHATTACHARYA & 12 ORS.
CHAIRMAN AND ONE OF THE DIRECTORS OF APEX HOSPITEX AND NEUROSCIENCE LTD., AND R/O. AT NO. 189, EAST SANTOSHPUR, CO-OPERATIVE HOUSING
KOLKATA-700099
...........Appellant(s)
Versus 
1. PAPIA BANERJEE & ANR.
WIDOW OF LATE NILOY BANERJEE, RESIDING AT A-139, LAKE GARDENS,
KOLKATA-700075
2. APEX INSTITUTE OF MEDICAL SCIENCE
1219, SURVAY PARK, SANTOSHPUR, P.S. JADAVPUR,
KOLKATA-700075
WEST BENGAL
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER
 HON'BLE DR. S.M. KANTIKAR,MEMBER

For the Appellant :
For the Appellant : Mr. Partha Sil, Advocate
( in FA No. 452/2014)
For the Appellant : Mr. Soumya Dutta, Advocate
( in FA No. 453/2014)
For the Respondent :
For the Respondent No. 1: Mr. H. Brahmachari,
Advocate with
Mr. Ayan Pal, Advocate
For Other Respondents : NEMO

Dated : 31 Aug 2016
ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

By this order we propose to dispose of above-noted two appeals arising out of the impugned order of the State Commission, West Bengal.

2.         Briefly stated, facts relevant for the disposal of the appeals are that respondent/Papia Banerjee widow of late Niloy Banerjee filed a consumer complaint in the State Commission, West Bengal on the allegations that on 24.8.2009 her husband shri Niloy Banerjee sustained injuries in an accident. He was taken to Bangur Hospital where he was given initial treatment and on the same day he was shifted to the appellant hospital (opposite party No.2). Shri Niloy Banerjee was discharged from the hospital on 27.8.2009. After coming on, Shri Niloy Banerjee felt acute pain in the lower abdomen. The complainant sought advice of the family physician Dr. Bibek Sarkar and on the advice of the family physician, Shri Niloy Banerjee was readmitted in opposite party No.2 hospital on 28.8.2009. On examination immediate surgery of Niloy Banerjee was suggested. The surgery was performed on 29.8.2009 and the patient was shifted to ICU for close monitoring. On 4th September, 2009 Shri Niloy Banerjee was shifted from ICU to the general ward. It is the case of the complainant that hospital authorities were requested to assign a full time nurse for taking continuous care of the patient and despite of a requisition in this regard no action was taken on the request. On 5th September, 2009 at around 2.30 am the complainant was telephonically informed by the hospital that Niloy Banerjee had fallen from the height and his condition was critical. The complainant alongwith the relatives rushed to the hospital and on reaching there found her husband dead. The hospital authorities issued a provisional medical certificate detailing the cause of death. It was mentioned in the death certificate that the death has occurred due to multiple injuries including head and abdominal injuries due to fall from height. According to the complainant the hospital has concealed the facts leading to the death of the patient and presumption was that the death has been caused because of surgical lapse. A legal notice was issued to the opposite parties asking for the real cause of death. The opposite party in its reply dated 25.2.2010 stated that during the stay in the general bed Niloy Banerjee managed to sneak past the duty nurse and went to the roof by climbing the fire escape stairs and fell from there. On the aforesaid allegations, holding the hospital authorities/opposite parties guilty of medical negligence the respondent filed the consumer complaint seeking following reliefs: -

Under the above facts and circumstances the petitioner prays before your Lordship for a direction to issue show cause notice upon the opposite parties causing death of the petitioner’s husband due to negligence and to direct to pay Rs.61,20,000/- for the loss of income which the petitioner’s husband would have earned for the family, Rs.32,40,000/- for family agony, suffering and emotional loss, and to pass such further order or orders as your Lordship may seem fit and proper.”

 

3.         The opposite parties No.1, 2 & 4 filed a joint written statement seeking disposal of the complaint on the ground that no cause of action against the opposite parties was disclosed in the complaint. It was admitted that Shri Niloy Banerjee was admitted in the opposite party hospital on 24.8.2009 under the care of opposite party No.3. The patient had multiple injuries and complaint of pain all over the body. On examination it was found that the patient was suffering from injuries on face. The patient responded to the treatment and was recovering satisfactorily. On the repeated request of the family members, the patient was discharged from opposite party hospital on 27.8.2009. It is alleged that the patient was readmitted in the hospital on 28.8.2009 at 12.15 hrs. with the history of acute abdominal pain. After examination opposite party No.4 Dr. Sandeep Roy conducted surgery of abdomen on 29.8.2009. Thereafter the patient was shifted to the ICCU. On 3rd September, 2009 the patient was shifted to general bed of the hospital as his recovery was satisfactory and the condition was stable. During the stay in the general bed the patient was able to sneak past the duty nurse and went to the roof by climbing the fire escape stairs and fell from there. The duty nurse on seeing the patient missing started searching for Shri Niloy Banerjee. At that point a sound of something falling on the ground came and the security personnel discovered a person lying on the ground floor and he was identified as Shri Niloy Banerjee. The police authorities and the family members of Shri Niloy Banerjee were informed immediately. It is claimed by the hospital authorities that they had treated the patient diligently and there is no negligence on the part of the hospital authorities which can be directly connected to the death of Shri Niloy Banerjee. Opposite party No.3 in his separate written statement took the plea that the complaint has been filed on the basis of conjectures and non-specific allegations. Opposite party No.3 pleaded that no cause of action was disclosed against him as there is no allegation of negligence or deficiency in service on his part. Opposite party No.3 claimed that he referred the patient to Dr. Kaushik Nandi on 25.8.2009 and the patient was seen by Anaesthetist Dr. Subhasree Majumdar. The patient underwent a soft tissue repair under satisfactory condition. Throughout the period till 27.8.2009 the patient was examined by three doctors apart from RMOs and he never complained of lower abdominal pain. It is alleged that on telephonic conversation the opposite party No.3 advised to bring the patient to the hospital and he was examined by doctor surgeon Sandeep Roy, who conducted the necessary surgery. After the successful surgical operation during recuperation the patient jumped from the roof of the hospital and committed suicide.

4.         The State Commission on consideration of pleadings and the evidence did not find any medical negligence on the part of the part of the hospital or the doctors vis-a-vis the treatment of late Shri Niloy Banerjee. The State Commission, however, found the opposite parties No.1 & 2 guilty of deficiency in service in care of the patient in not taking precautionary steps for the safety and security of the patients admitted in the hospital and allowed the complaint against opposite parties No.1 & 2. Complaint qua opposite parties No. 3 & 4 was dismissed. Relevant observations of the State Commission holding opposite parties No.1 & 2 guilty of deficiency in service are reproduced as under: -

            “The fact, therefore, remains that the patient died due to fall from height while he was under the care and custody of the OP Hospital. It was the duty of the hospital authority to take all precautionary steps for the safety and security of the patient. The incident as it happened speaks of serious negligence on the part of OP Nos. 1 and 2. The contention of the learned counsel for the OPs that it was an accidental death and there was no negligence or deficiency in service on the part of the Ops, under the circumstances of the case, is not acceptable. The doctrine of rep ipsa loquitur is squarely applicable in the circumstances of the case. The judgment cited by the learned counsel for the OPs in respect of a decision of the Hon’ble Supreme Court of Canada [University Hospital Board vs. Lepine, (1966)] SCR 561 to the effect that a sudden leap through the window was not an event which a reasonable man would have foreseen and have been required to take more precautions than were available, is not applicable in the facts and circumstances of the instant case. On this point the learned counsel for the complainant has referred to a decision in the case Dr. Kunal Saha vs. Dr. Sukumar Mukherjee & Ors. (supra) wherein it has been held that compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts. The learned counsel for the complainant has further referred to the decision reported in the case of Madan Lal Arora vs. Sh. Dharam Pal Ji & Ors. (supra) wherein it has been laid down by the  Hon’ble National Commission that in a case where negligence is evident, complainant does not have to prove anything. This ratio is squarely application in the instant case, in as much as, the death due to fall from height occurred owing to the severe negligence on the part of the hospital authorities and it speaks of gross deficiency in service. The explanation of the hospital authorities that on 4.9.2009 at late night the patient somehow sneaked past the attending nurse and went to the roof and jumped therefore, is not at all acceptable and the hospital authorities cannot be absolved of all the liabilities in this regard. So far as the doctors, that is, OP Nos.3 and 4 are concerned, they are not responsible, in as much as, there is no allegation as to the treatment/surgery done. For the death of the patient the OP Nos. 1 and 2 are liable to pay compensation and litigation cost to the complainant.”

 

5.         Feeling aggrieved of the order of the State Commission the above-noted appeals have been filed by the opposite party hospital and the Directors of the hospital respectively.

6.         Learned counsel for the appellants have assailed the impugned order of the State Commission on the ground that State Commission after having taken a view that there was no medical negligence by the opposite party no. 3 & 4 in the treatment of Niloy Banerjee has fallen in error by holding the appellant hospital as also the appellant directors of the hospital guilty of negligence and deficiency in care of Niloy Banerjee leading to his death, which undisputedly is suicidal in nature.

7.         Learned counsel for the respondents in respective appeals on the contrary has argued in support of the impugned order and contended that State Commission has rightly held the appellant opposite parties guilty of deficiency in service qua the care and safety of the deceased Niloy Banerjee.  Counsel for the respondents in support of their context has relied upon the judgments Supreme Court in the matter of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Others 2013 (4) CPR 639 (SC) , as also judgment of this Commission in the matters of Dr. ( mrs. ) Indu Sharma Vs. Indraprastha Apollo Hospital and Ors. 2015 (3) CPR  119 (NC), B T Sridhar & Ors. Vs. Vokaligara Sangha & Ors. 2015 (2) CPR 732 (NC).

8.         We have considered the rival contentions.  From the record, it is clear that the appellants have been held responsible for the death of Niloy Banerjee, who on the fateful night managed to sneak out from the general ward of the hospital, climbed to the roof and jumped from there resulting in his death.  The question is whether for that episode, the appellant hospital or its directors can be held responsible under the consumer jurisdiction?  In order to find answer to the above question, it would be seen whether the appellant hospital or its employees in any manner lacked in taking reasonable care and precaution to ensure personal safety of the deceased Niloy Banerjee.  In this regard, it has to be born in mind that Niloy Banerjee was an ordinary patient without any history of psychiatric problem, depression or mental disorder which would have required the hospital authorities to take extra care and precaution to ensure that the patient may not cause self harm or harm to someone else.  In the instant case, as it is apparent from the record, Niloy Banerjee, after a surgery and recovery period in ICU was shifted to the general ward and on the fateful night he managed to sneak out the ward, climbed to roof and jumped from there, meaning thereby that this is a case of suicide for which the appellant hospital or its directors cannot be held responsible for negligence.  The question whether or not, the appellant were guilty of negligence in the context of this case has to be tested on the anvil of reasonableness. Similar question came up before the Supreme Court of Canada in the matter of The University Hospital Board Vs. Gerald Lepine and George Monckton Vs. Gerald Lepine  SCR  Supreme Court of Canada (1966) 561 which related to the case of a psychiatric patient who jumped through the window resulting in permanent disability. In that case, the hospital authorities were sought to be held liable on the ground that they had failed in taking reasonable care and precaution expected of them to prevent harm to the aforesaid psychiatric patient.  In the said judgment, Supreme Court of Canada observed as under:

This is one of the “hard cases” which could easily make bad law unless one adheres to established principles of responsibility in the face of the actual situation as it developed and moved to a rapid and unexpected climax when Lepine emerged from the bathroom, having given no prior sign of wanting to destroy himself.

     The question of whether there was or was not negligence in a given situation has been dealt with in many judgments and by writers at great length. One principle emerges upon which there is universal agreement, namely, that whether or not an act or omission is negligent must be judged not by its consequences alone but also by considering whether a reasonable person should have anticipated that what happened might be a natural result of that act or omission. As was said by Lord Thankerton in Glasgow Corporation Vs. Muir:

     The court must be careful to place itself in the position of the person charged with the duty and to consider what he or she should have reasonably anticipated as a natural and probable consequence of neglect and not to give undue weight to the fact that a distressing accident has happened.

     Applying this principle and recognizing the duty which a doctor and a specialist such as Dr. Monckton owes to his patient and the duty which a hospital owes to a given patient as an individual, I am impelled to the conclusion that Lepine’s sudden leap through the window was not an event which a reasonable man would have foreseen and have been required to take more precautions than were available in this case.  Short of having put Lepine in some restraining device or of keeping him at ground level, both of which were rejected by the Appellate Division as being necessary or required, the injuries sustained by Lepine were the result of an impulse on his part which could not reasonably have been foreseen.  To hold otherwise would, in my judgment, make doctors and hospitals insurers against all such hazards which they are not.”

 

9.         We are inclined to agree with the principles laid down in the said judgment.  In the instant case, Niloy Banerjee had left the general ward, climbed to the roof and jumped on impulse which a reasonable person would not have foreseen particularly when Niloy Banerjee was not even psychiatric patient or suffering from depression or mental disorder.  The hospital authorities, in our considered opinion  cannot be held negligent for failing to prevent such unexpected events which a reasonable person  is not expected to foresee.  Therefore, in our view, the State Commission has committed a grave error in holding the appellants guilty of negligence with regard to the proper care and custody of Niloy Banerjee.  Impugned order, therefore, cannot be sustained.

10.       In view of the discussion above, we accordingly allow both the appeals, set aside the order of the State Commission and dismissed the complaint.

 
......................J
AJIT BHARIHOKE
PRESIDING MEMBER
......................
DR. S.M. KANTIKAR
MEMBER