Calcutta High Court (Appellete Side)
Royd Nursing Home And Healthcare ... vs The State Of West Bengal And Ors on 22 July, 2021
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 1202 of 2021
Royd Nursing Home and Healthcare Limited and Anr.
Vs.
The State of West Bengal and Ors.
For the petitioners : Mr. Pranit Bag,
Ms. Jayati Chowdhury,
Ms. Ranjana Seal
For the opposite party
no. 2 : Mr. Atarup Banerjee,
Mr. Golam Nure Imrohi
Hearing concluded on : 14.07.2021
Judgment on : 22.07.2021
Sabyasachi Bhattacharyya, J:-
1. The first petitioner is a nursing home and a company registered under
the Companies Act, 1956, represented by its director and shareholder,
the second petitioner.
2. The present revisional application has been moved against an order
bearing Order No. 2 dated February 24, 2021 passed by the West
Bengal Clinical Establishments Regulatory Commission (opposite
party no. 2) in Case Reference no. Kol/2019/000681. By the said
2
order, respondent no. 2 imposed a compensation of Rs. 1 lakh against
the petitioner no. 1.
3. The complaint before the Commission arose out of the unfortunate of
a patient demise who had visited the petitioner no. 1-nursing home for
Maxio-Facial Cosmetic Surgery. After having been administered
anaesthesia, the patient allegedly had a seizure and was transferred to
some other clinical establishment where the patient passed away after
about three days of treatment.
4. The Commission recorded that it enquired from the petitioner no. 1
whether the latter preserved the particular vial, syringe and/or any
other equipment pertaining to the anaesthesia procedure. It was
contended by the petitioner no. 1 that, soon after the incident, the
patient had been shifted to some other establishment, of which the
petitioner no. 1 had no track. After about three months thereafter,
the petitioners received a complaint. Since there was no protocol to
preserve the equipment about which the Commission enquired, the
petitioner no. 1 had not preserved any such vial, syringe and/or any
other equipment.
5. The Commission went on to observe that the patient had a severe
convulsion and shock during anaesthesia, on which the petitioner no.
1 should have reviewed the circumstances irrespective of any
complaint. The first step of such review, according to the commission,
should be to examine the vial and the syringe to find out whether
there was anything wrong with the same.
6. The Commission further found that it is true, had the Post Mortem
been done, it could get the real answer as to the cause of the death;
however, appreciating the mental state of the unfortunate husband of
the patient at the material time, it was presumed by the Commission
that he could not take any decision on that score, for which the
husband cannot be blamed.
7. In the penultimate paragraph of the impugned order, the Commission
specifically found that, since it did not know the cause of the death in
absence of the Post Mortem examination, it could not fix the
responsibility for the demise. However, it could not brush aside the
issue and that was highlighted before it. Accordingly, a "token"
compensation of Rs. 1 lakh was imposed on petitioner no. 1 and
ancillary were orders passed.
8. Learned counsel for the petitioners contends that the impugned order
is tainted by patent perversity since the Commission, despite arriving
at the finding that it did not know the cause of death, imposed a
compensation of Rs. 1 lakh against the petitioner no. 1.
9. Learned counsel for the petitioners relies on Section 2(k) of the West
Bengal Clinical Establishments (Registration, Regulation and
Transparency) Act, 2017 as well as Section 38(1)(iii) of the 2017 Act to
argue that the petitioner squarely comes within the definition of
"nursing home" as defined in the said Act and the Commission had
lacked jurisdiction to decide on questions of medical negligence,
which power is conferred solely on the State Medical Council.
10. Only after a complaint of medical negligence was dealt with by the
concerned State Medical Council, the Commission-respondent no. 2
can assume jurisdiction.
11. In the present case, it is submitted, no medical negligence having
been proved at any point of time and/or even made out, let alone
being decided by the State Medical Council concerned, the impugned
order was wholly without jurisdiction.
12. Learned counsel appearing for the opposite party no. 2, at the outset,
places reliance on Narayana Hrudyalaya Limited and Another V. West
Bengal Clinical Establishment Regulatory Commission and Others,
reported at (2019) SCC OnLine Cal 6980, wherein it was held by this
court, inter alia, that the Commission had the power to deal with such
complaints, where a concession was given.
13. Learned counsel further contends that this court does not have
jurisdiction under Article 227 of the Constitution of India to interfere
with the matter of the respondent no. 2 in view of Section 46 of the
2017 Act having provided that no Civil Court shall have jurisdiction to
entertain any suit or proceeding in any respect of any matter which an
adjudicating authority or the West Bengal Clinical Establishment
Regulatory Commission is by or empowered under the Act to
determine and no injunction shall be granted by any court or other
authority in respect of any action ought to be taken in pursuance of
any power conferred by or under the Act.
14. Thirdly, learned counsel for the opposite parties contends that,
contrary to the arguments of the petitioners, the petitioner no. 1 in a
letter dated February 20, 2021, written to the Secretary of opposite
party no. 2, clearly denied that any surgery was conducted in the year
2019. However, such allegation was subsequently belied by the
arguments advanced on behalf of the petitioners before the
Commission. Learned counsel places reliance on paragraph no. 2 of
such letter annexed at page 30 (Annexure P-2) of the present
application under Article 227 of the Constitution of India.
15. Learned counsel for the petitioners, in reply, reiterates that no
complaint was lodged regarding unnatural death at any point of time
by the husband/relatives of the patient. As such, the petitioners did
not have any duty or reason to preserve the relevant vials and syringe
of anaesthesia for an indefinite period thereafter. In fact, the patient
met her unfortunate fate in a different clinical establishment than
petitioner no. 1, that too, three days after she was treated in the
petitioner no. 1 - nursing home.
16. The first complaint was received after three months by the petitioner
no. 1, before which there was no occasion for the petitioner no. 1 to
preserve such equipment pertaining to the administration of
anaesthesia on the said patient.
17. It is seen from the impugned order and the materials on record, as
well as upon considering the respective submissions of the parties,
that, although the victim of the unfortunate incident-in-question had
allegedly suffered a seizure, she was immediately transferred to some
other clinical establishment where she was treated and expired three
days thereafter. No complaint was made before or against the
petitioner no. 1 prior to three months thereafter.
18. The opposite parties have failed to substantiate the allegation that the
petitioners had exhibited negligence in not preserving the vials,
syringe and equipment used for the anaesthesia of the patient, or that
there was any statutory duty on the part of the petitioners to do so.
That apart, it is not practical or possible for clinical establishments to
preserve each and every used vial, syringe and/or other equipment
used for anaesthesia. Such preservation of all equipment would be an
impractical scenario since there will be a consequent accumulation of
considerable junk and would create storage issues unnecessarily.
19. More importantly, the Commission categorically held in the impugned
order itself that it did not know the cause of death in absence of any
Post Mortem examination and could not fix the responsibility for the
unfortunate death. Even after arriving at such finding, the petitioner
no.1 was unreasonably directed to pay a compensation of Rs.1 lakh.
It is beyond logic as to how, in the absence of any material to fix
responsibility and without fixing the responsibility on anyone, the
petitioner no.1 could be saddled with compensation, of whatsoever
amount. Hence, the findings and observations of the Commission in
the impugned order are diametrically contrary to the conclusion
arrived at in imposing costs on petitioner no.1.
20. Although the circumstances of the demise-in-question were extremely
unfortunate for the victim and her family, the petitioner no.1 could
not be saddled with compensation of any amount, since the
Commission specifically arrived at the finding that it could not fix
responsibility on anyone for the death.
21. That apart, Section 38(1)(iii) categorically stipulates that allegations of
medical negligence have to be dealt with by the State Medical Council
concerned, which is a pre-requisite for the Commission to assume
jurisdiction. In the absence of any such prior adjudication in the
present case, the Commission lacked jurisdiction to pass the order of
compensation.
22. Narayana Hrudyalaya Limited (supra) was rendered on a different
footing altogether. Since there had been a concession on behalf of one
of the parties to compensate the victim. The issue decided in the said
judgment involved the question whether, despite the bar under
Section 38(1)(iii) of the 2017 Act, the Commission could impose
compensation if a concession on that score was given by the Clinical
Establishment.
23. Such question was distinct and different from the issue involved in
the present allegation, since there was no concession, at any point of
time, from the end of the petitioner.
24. In the absence of any such concession, the ratio of the cited judgment
is not attracted to the present case. Thus, the respondent no. 1-
Commission acted patently without jurisdiction in entertaining the
complaint and granting compensation of Rs. 1 lakh against the
petitioner no. 1. Such assumption of jurisdiction is patently contrary
to law as contemplated in Section 38(1)(iii) of the 2017 ct, and, as
such, is bad in law.
25. In view of the above considerations, C.O. No. 1202 of 2021 is allowed,
thereby setting aside Order No. 2 dated February 25, 2021 passed by
the West Bengal Clinical Establishment Regulatory Commission, in
Case Reference No. Kol/2019/000681 (Sunil Kumar Saha Vs. Royd
Nursing Home & Healthcare Ltd.).
26. There will be no order as to costs.
27. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
