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2019 DIGILAW 365 (CAL)

People’s Medi-Treat Pvt. Ltd. v. Gopal Bose

2019-03-14

SABYASACHI BHATTACHARYYA

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JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. The present challenge is directed against an order whereby the West Bengal Clinical Establishment Regulatory Commission allowed a complaint registered by the father of an unfortunate girl, namely, Trisha Bose. 2. Trisha, while she was in the care of the petitioner, met with an accident and died as a result. The consistent case of both the parties is that the young lady was going to be released from the hospital very soon and her treatment was almost over. At this juncture, on a particular occasion, she expressed her desire to use the washroom to release herself, although she was on saline. The case of the nursing home/petitioner, as corroborated by the concerned attendant and a co-patient of Trisha, who was an eyewitness to the incident, is that when Trisha wanted to go to the washroom, the attendant initially tried to dissuade her due to her frail health. However, the young lady insisted upon going to the toilet by herself and she had to be permitted to do so, being accompanied by the attendant. While Trisha was on the verge of returning to her bed, she fell down, initially on the attendant, who could not carry her weight since Trisha was on the heavier side, and thereafter she fell to the floor. Immediately thereafter, as is borne out by the complaint of the opposite party no. 1 (father of the deceased), the nursing home contacted the parents of Trisha over phone and intimated them of the fall suffered by Trisha. 3. The girl was moved immediately to the I.C.U. of the petitioner nursing home, where she was being treated. Unfortunately, the young lady could not be saved and met with her death. 4. It has been argued on behalf of the complainant before the Regulatory Commission as well as in this Court that the petitioner was negligent in treating Trisha, particularly since it was recorded in the notes of the I.C.U. that Trisha had died from ‘Ventricular Tachycardia’. The subsequent notes kept by the nursing home said “Ventricular Tachycardia of unknown Aetiology.” It was recorded by the Commission that in the entire clinical note there was no remote indication of an episode that the patient had fallen and sustained external injury. 5. The subsequent notes kept by the nursing home said “Ventricular Tachycardia of unknown Aetiology.” It was recorded by the Commission that in the entire clinical note there was no remote indication of an episode that the patient had fallen and sustained external injury. 5. The subsequent reports and statements of the autopsy surgeon who did post-mortem on Trisha, showed that the deceased had suffered several external injuries, which clearly indicate that she had a fatal fall. The complainant alleges that the nursing home was duty-bound under Rule 11 of the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017 to draw up a written treatment plan and to record the salient clinical findings, the result of every evaluation or assessment and advice, in the case-sheet containing such particulars as might be notified, as part of a mandatory record-keeping. In the said Rules, the details of the treatment plan and hospital care were also provided for. The complainant alleges that such Rules were not complied by the nursing home-in-question. 6. The other limb of allegation, which was accepted by the Commission, was that it was for the attendant of the nursing home to have restrained Trisha from using the toilet, particularly when a bedpan was admittedly available to Trisha. It is argued on behalf of the complainant that since Trisha was on saline, she should not have been permitted to go to the washroom on her own. 7. Certain discrepancies, as pointed out before the Commission, were also argued in this Court. Apparently, there was an indication in the case made out by the nursing home that the deceased had fallen on the attendant, who could not carry her weight, and then fell on the floor. However, it is argued that the enquiry report returned by a medical board of four eminent doctors stated that the deceased fell down on the floor of the toilet and her female attendant tried to save her from the fall but failed as the patient was bulky and the attendant was thin-built. 8. It has further been alleged that the nursing home tried to suppress its negligence by recording the result of death to be “Ventricular Tachycardia” instead of indicating that the fall of the deceased in the nursing home was the cause of her death. 9. 8. It has further been alleged that the nursing home tried to suppress its negligence by recording the result of death to be “Ventricular Tachycardia” instead of indicating that the fall of the deceased in the nursing home was the cause of her death. 9. The stand of the petitioner, who was the respondent in the Commission below, has been that the enquiry report clearly indicates that the nursing home had done all that was within its powers to try to save Trisha. It has been argued that the treatment of Trisha was almost complete and she was going to be discharged on the next day. As such, there was no occasion for the attendant to insist after a certain point that Trisha use the bedpan instead of going to the washroom. As such, it has been argued that there was no negligence on the part of the nursing home who did their best in intimating the parents of Trisha immediately after the accident occurred and moved Trisha to the I.C.U. of the same hospital and in taking utmost care in an attempt to save her. Hence, the petitioner seeks to argue that there was no negligence on the part of the nursing home at all, as erroneously held by the Commission. 10. It is evident from the records that the cause of death of the deceased was shown to be a cardiac failure, termed as “Ventricular Tachycardia.” It is also clear from the records that the aetiology of such Ventricular Tachycardia was recorded to be unknown by the doctor, who had taken the note. 11. First, even if the said recording was an attempt to suppress the cause of death of Trisha, the same cannot necessarily lead to the inference of a pre-death negligence in treating Trisha. In the event the cause of death was alleged to be suppressed, several recourses were/are open to the complainant to take due action in such regard, subject to proof. But in the present case, such posthumous wrong recording, if at all, could not furnish any reason for the Commission to fix liability of negligence on the nursing home regarding the treatment of Trisha till the moment prior to her death. 12. But in the present case, such posthumous wrong recording, if at all, could not furnish any reason for the Commission to fix liability of negligence on the nursing home regarding the treatment of Trisha till the moment prior to her death. 12. Moreover, prima-facie it does not appear that such recording was an attempt on the part of the nursing home to suppress the facts for two reasons, apart from others: First, the hospital authorities informed the parents of the deceased immediately after the accident. Secondly, a co-patient of Trisha corroborated that there was no negligence on the part of the attendant who was representing the hospital in the room where Trisha was being treated. On the contrary, the attendant tried to dissuade the young lady to go to the wash room and when the latter refused and insisted upon going to the washroom herself, the attendant accompanied her to and fro. Due to an accident, unfortunately, Trisha fell down and such fall could not be cut off by the attendant as the attendant was of a more frail build than Trisha, as per the enquiry report by the four doctors, whose credibility has not been questioned before any forum by the complainant. Hence, it would defeat logic to hold that the hospital, in the same breath, informed the parents of the patient immediately about the fall and tried to suppress the cause of death by changing the cause of death in its records. 13. It often happens that the notes kept in ICUs are cryptic in nature, indicating the immediate cause of death and/or findings directly pertaining to the death. The case history of the patient generally pertains to the ailment for which she/he is admitted to the medical facility. Trisha was not admitted to the petitioner-nursing home as a result of her fall but for an entirely different ailment relating to her abdominal pain, for which she had been treated and relating to which no question of negligence was raised on the part of the nursing home in keeping records or in treating her in the nursing home. 14. The allegations of the complainant pertain to the death of Trisha due to her fall. Since nothing contained in the records indicates that the nursing home was responsible for the fall in any manner, no negligence could be attributed to the hospital without any rhyme and reason. 15. 14. The allegations of the complainant pertain to the death of Trisha due to her fall. Since nothing contained in the records indicates that the nursing home was responsible for the fall in any manner, no negligence could be attributed to the hospital without any rhyme and reason. 15. The other aspect of the argument, as to the attendant being duty-bound to forcibly restrain Trisha to her bed despite her wanting to use the washroom, cannot be accepted for the following reason: Trisha was on the verge of being discharged from the nursing home soon and her treatment was almost over, although she was on saline. Being on drip does not always ipso facto indicate that the patient does not have the permission to walk. There being nothing on record to show that the deceased was in such a frail physical condition that she was unable to walk to go to the toilet, the demeanor of the attendant at having tried to dissuade Trisha could only be construed as a gesture of care so that Trisha, in her weak condition, was not injured. Since such request was overridden by the patient, as corroborated by a co-patient, this Court cannot have any option but to hold that no negligence could be attributed to the nursing home under any stretch of imagination. The Commission approached the matter entirely on conjecture and surmise in directing the petitioner to pay compensation of Rs. 10 lakh for no fault of its own. The negligence of duty for which the petitioner has been castigated in the impugned order, pertain virtually to the alleged negligence of the staff of the nursing home to take basic care in allowing the patient to walk from the bed to the toilet, which could not tantamount to negligence at all in the circumstances of the case, as discussed above. 16. In such view of the matter, the impugned order ought to be set aside, having been passed on conjecture and de hors the law. 17. Accordingly, C.O. No. 609 of 2019 is allowed on contest, thereby setting aside the impugned order. 18. There will be no order as to costs.