Park Hospitals And Another vs The West Bengal Clinical ...
2023 Latest Caselaw 5717 Cal

                    In the High Court at Calcutta
                   Constitutional Writ Jurisdiction
                            Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                         WPA No. 16381 of 2021

                     Park Hospitals and another
                                 Vs.
                The West Bengal Clinical Establishment
                 Regulatory Commission and another

     For the petitioners             :       Mr. Abhratosh Majumder,
                                             Mr. Soumabho Ghosh,
                                             Mr. Deepan Sarkar,
                                             Mr. Saaquib Siddiqui,
                                             Mr. Aviroop Mitra

     For the respondent no.2         :       Mr. Avijit Ghoshal

     Hearing concluded on            :       21.08.2023

     Judgment on                     :       30.08.2023



     Sabyasachi Bhattacharyya, J:-

1. The petitioner no.1 is a Clinical Establishment (CE) under the

West Bengal Clinical Establishment (Registration, Regulation and

Transparency) Act, 2017 (hereinafter referred to as, "the 2017

Act") and the petitioner no.2 is its Managing Director. The

present challenge has been preferred against an award passed

against the petitioner no.1 by the respondent no.1-Authority that

is The West Bengal Clinical Establishment Regulatory

Commission (WBCERC), directing payment of compensation of

Rs.20 lakh for negligence in treatment of Dr. Shraddha Bhutra,

herself a doctor.

2. Dr. Bhutra had conceived and was under medical observation of

Dr. (Mrs.) Supriya Khetan. The delivery was scheduled on June

12, 2021. On April 24, 2021, the patient had a mild chest-pain

in the evening and had a check-up by Dr. Khetan at her Bangur

chamber, who advised the patient that everything was normal

and there was no need to worry, upon which the patient returned

home. The same evening at around 10:00 p.m. the patient felt

severe pain in her lower abdomen. The complainant/respondent

no.2, her husband, called up Dr. Khetan but the latter allegedly

refused to prescribe medicine and did not agree to come to the

house of the patient to examine her. Dr. Khetan advised hospital

admission. Accordingly, the patient was taken to the Apollo

Hospital which declined to admit the patient on the ground that

the Hospital was full of Covid patients and it would be risky to

admit a pregnant patient there.

3. The complainant rushed the patient, his wife, to the Bhagirathi

Neotia Woman & Child Care Centre (for short, "BNWCCC"), at

Rawdon Street, run by the petitioner no.1. The patient, along

with the complainant, reached the hospital at about 11p.m. when

her blood-pressure (diastolic) was 117. The said Hospital

informed the patient‟s family that they had talked to Dr. Khetan

over phone but she had instructed not to admit the patient at

Neotia. The patient‟s family requested the Hospital to admit her

but in vain.

4. After waiting there for about 45 minutes, the patient and her

family went to the Belle Vue Hospital at around 11:55 p.m. when

the patient was already in a state of collapse. Belle Vue was

reluctant to admit the patient till 12:30 a.m. Such admission was

done under pressure of medial publicity and call from the police

at the instance of the family of the patient. Despite all efforts by

the attending RMO at Belle Vue, the patient was declared dead at

around 11:12 a.m.

5. Learned senior counsel for the petitioner argues that no

complaint was lodged against the Apollo Hospital although the

Apollo Hospital shirked its duty as clinical establishment as well.

Even Belle Vue has been given a clean-chit, although a

considerable delay was occasioned by the Belle Vue and the

patient met her unfortunate demise in Belle Vue after having had

to wait for a considerable period of time.

6. It is argued that the petitioners had filed an affidavit, to which a

rejoinder was filed by the complainant. However, such affidavit

was not considered at all by the respondent no.1-Commission.

7. It is argued that BNWCCC provided preliminary treatment to the

patient, measured her blood pressure and also provided an

ambulance, in which she was taken to the Belle Vue Hospital. As

such, there was no negligence on the part of the petitioner no.1.

8. It is further contended that independent proceedings have been

taken out before the Medical Council against Dr. Supriya Khetan,

the attending doctor. However, BNWCCC cannot be blamed,

since the staff of the BNWCCC had immediately contacted Dr.

Khetan, upon the patient being brought, which has not been

denied, upon which it was Dr. Khetan who said that the

appropriate facilities were not available in BNWCCC, for which

the patient could not be admitted to the said CE.

9. Since it was the attending doctor who had so advised, the staff of

BNWCCC was in no manner responsible for any sort of medical

negligence whatsoever.

10. Learned counsel places reliance on the transcripts of the

telephone conversation between Dr. Khetan and the hospital staff

during the relevant juncture, which is a part of the materials on

record, in support of such submission.

11. Learned senior counsel for the petitioners argues that even the

respondent no.1-Commission observed that Dr. Banerjee, a

member of the Commission, on whose report the petitioners were

indicted, was critical against Belle Vue as would appear from his

opinion set out in the order of the Commission. However, the

Commission observed that the patient was attended at Belle Vue,

as was seen in a video, although what treatment was actually

given or not would be the exclusive domain of the West Bengal

Medical Council.

12. It is argued that the same logic ought to have been applied to the

BNWCCC as well, as it was beyond the purview of the

Commission to enter into the treatment protocol meted out by the

CEs. The only ambit of the Commission‟s enquiry was

negligence, which was not found in case of the BNWCCC at all.

13. It is reiterated that even the ambulance where the patient was

kept sitting for a considerable period of more than half an hour at

the Belle Vue, was provided by the BNWCCC.

14. The petitioners thus assail the impugned order of the

Commission.

15. Learned counsel for the respondent no.2/complainant places

reliance on a judgment reported at AIR 1989 SC 2039 [Pt.

Paramanand Katara Vs. Union of India and others]. In the said

judgment, it is argued, it was observed that preservation of

human life is of paramount importance and every doctor has the

professional obligation to extend his services with due expertise

for protecting life. It was held that there is no legal impediment

for a medical professional, when he is called upon or requested to

attend to an injured person needing his medical assistance, to

extend such service, since there is no doubt that the effort to save

the person should be the top priority not only of the medical

profession but even of the police or any other citizen connected

with the matter or who happens to notice such an incident or

situation.

16. Learned counsel next cites an unreported judgment dated

December 2, 2019 passed in Narayana Hrudyalaya Limited and

another Vs. The West Bengal Clinical Establishment Regulatory

Commission and others in W.P. 21787 (W) of 2019. It was held

there in that apart from adjudicating on merits, the Commission

is empowered to compensate and pass such other orders as

deemed appropriate as well, which, read in conjunction with

powers to award such compensation as deemed appropriate,

indicates that such separate mentioning of the power lends a

stand-alone existence of Clause (ix), even independent of Clause

(iii) of Section 38(1) of the 2017 Act.

17. Learned counsel places reliance on Section 38 of the Act as well.

It is argued that on the fateful day, the BNWCCC did not provide

immediate and basic treatment to the patient, thereby failing to

meet the obligations of the medical professionals.

18. It is argued that the judgment cited by the respondent no.2 casts

an obligation on the State as well as all persons, whether

Government Doctors or otherwise as well as hospitals, to provide

immediate medical aid to a patient in need, which was denied to

the patient in the present case.

19. It is argued that due the callous attitude of the BNWCCC in not

admitting the petitioner‟s wife at the crucial juncture and keeping

her waiting for 45 minutes, which turned out to be fatal, the

BNWCCC committed a flagrant violation of the duties of CEs. As

such, the compensation awarded against the BNWCCC was

justified.

20. Upon hearing learned counsel for the parties, it transpires that

the patient, even as per the report of an expert on which the

Commission relied, was suffering from Eclampsia, which is a

pregnancy-induced hyper-tensive disorder with super imposed

seizures/convulsions, which is largely preventable. As per the

report, there is a WHO (World Health Organisation)-designed

effective „Anti-Convulsion Tranquilizer Therapy‟ in Eclampsia and

other anti-convulsant regimes. It was further observed in the

report that each transfer and transport had added to the

seriousness and severity of Eclampsia.

21. The Commission in the present case relied on such report and

disbelieved the defence of the BNWCCC.

22. Let us now examine the role of the BNWCCC in the unfortunate

plight of the deceased wife of respondent no.2, who was herself a

doctor. The Commission held that the second CE that is the

BNWCCC, in its view, was fully responsible for the unfortunate

death, in the same breath holding that it is not sure whether the

patient could be saved or not, however, she was refused

treatment by Neotia which would be apparent from the affidavit

itself. BNWCCC, it was observed, had categorically stated in its

affidavit that they did inform the condition of the patient to Dr.

Khetan who did not advice them to admit and as such they could

not admit the patient contrary to her instruction.

23. It was also observed that the patient had neurological

complications, for which she was referred to Apollo Hospital by

the concerned medical practitioner, Dr. Khetan.

24. The BNWCCC submits that the RMO of BNWCCC called Dr.

Khetan at around 11:30 p.m. complaining that the patient was

not allowing her to clinically examine her and that the

complainant behaved rudely over phone.

25. However, there is no proof in support of such allegation. Be that

as it may, as it transpires from the discussions by the

Commission, the negligence of Dr. Khetan is prima facie

established. Although Dr. Khetan may have her reasons, she did

not care to visit the patient in the fateful night when the patient

suffered from severe pain in her lower abdomen at about 10 p.m.

26. As per the allegations, Dr. Khetan not only refused to prescribe

medicine, but also did not make any effort to see the patient but

only advised her hospital admission.

27. As per the advice of Dr. Khetan, the patient was taken to Apollo

which did not admit the patient on the ground that the Hospital

was full of Covid patients and it would be risky to admit a

pregnant patient there.

28. Surprisingly, no complaint has been lodged against Apollo,

although it was the first CE which refused admission to the

patient. There is nothing on record to indicate that, despite there

being several Covid patients, there was no infrastructure at

Apollo at the relevant juncture to admit a pregnant lady, having

convulsions and serious neurological complications. The said

aspect ought to have been looked into by the Commission. The

cryptic version of Apollo was that as per their records, the patient

never visited the CE on the fateful or any other day, and, hence,

they were unable to apprise the Commission that what had

actually happened on that day. The said issue was not explored

any further. Surprisingly, the complainant/husband of the

patient did not make any formal complaint against Apollo. Even

at the time of hearing, he did not make any request to add Apollo

as a respondent. Even the visit of the patient to Apollo was

denied. The Commission held that in the absence of proper proof

it would be difficult for it to blame Apollo. Since no complaint

was lodged against it, there is no scope of ascertaining the role of

Apollo in the sordid episode. Thus, the finding of Commission on

such score cannot be faulted. The insinuation of the petitioners

that Apollo was never indicted cannot be of much help to the

petitioners, since no complaint has been lodged in the first place

against Apollo.

29. As such, the remaining chief players in the drama on the fateful

night were BNWCCC and Belle Vue.

30. Belle Vue, it has been rightly argued, was given a clean-chit by

the Commission despite several factors casting serious doubt on

the role of Belle Vue as well. First, Belle Vue was the last CE

which the patient was taken to and where she met her demise.

31. Even as per the Commission‟s findings, the patient reached Belle

Vue at about 11:55 p.m. but was not admitted to Belle Vue till

12:30. Only when one of the members of the patient‟s family

streamed a video on social media and warnings were issued by

the police to Belle Vue, was the patient admitted by Belle Vue.

Thereafter, the patient was treated by Belle Vue, which is

apparent from the video which was examined by the Commission.

The Commission did not go into the medical protocol or the

treatment protocol adopted by Belle Vue and was satisfied merely

on the perusal of the concerned video footage, which showed that

there was activity surrounding the patient. However, the

exemption of Belle Vue from the entire episode by the

Commission cannot be sustained. Such exemption, in fact, is

patently contrary to the report on which the Commission relied

on for indicting the BNWCCC.

32. As per the said report, the last stop in the fatal journey was at the

Belle Vue Clinic where it was mid-night around 12 a.m. of 25th

April. The medical note written there shows diagnosis of pre-

Eclampsia with convulsion/seizure at 10:15 p.m. Still the patient

was kept waiting without any medication and treatment for over

half an hour, as alleged. The patient was eventually admitted in

Belle Vue on the threat of exposure in the social media and a

telephone call from the local police station at Shakespeare Sarani.

An attempt for resuscitation was done then, but was little too

late. Eclampsia, it was observed in the report, was largely

preventable.

33. From the above circumstances, it is clear that Belle Vue kept the

patient waiting for at least 35 minutes at a crucial juncture,

immediately after which the patient met her demise. Such apathy

on the part of the Belle Vue, keeping in mind that the admission

there took place only upon social media inducement, ought not to

have been pardoned by the Commission while assessing

compensation.

34. Insofar as the BNWCCC is concerned, it was required to be

ascertained as to whether the BNWCCC actually has the

infrastructure to treat Eclampsia. Although, prima facie, the

BNWCCC is supposed to be a Multi-Specialty Hospital taking care

of women and children and ought to have sufficient expertise and

infrastructure regarding pregnancy complications, it cannot be

ascertained without an examination on facts as to whether it had

the infrastructure at the relevant point of time to give proper

treatment to the patient. Apparently, the telephonic conversation

between the BNWCCC staff and Dr. Khetan, annexed to the writ

petition, indicates that Dr. Khetan was of the opinion that at

Neotia „there isn‟t a proper ICU‟ and that the BNWCCC does not

have proper facility. The said fact was not ascertained properly

on the basis of materials by the Commission while passing the

impugned award.

35. One other aspect, apart from the facility at BNWCCC, is whether

the BNWCCC provided proper medical care to the patient during

her wait for 45 minutes. The BNWCCC claims that basic medical

attention was given to the patient and her biological parameters

were checked as far as possible. It is also alleged that an

ambulance was provided by the BNWCCC, which has not been

denied from any quarter. Hence, prima facie, it is arguable as to

whether the BNWCCC was really the sole CE which was to take

the entire blame for the sad demise of the patient.

36. In fact, the petitioners are justified in arguing that whereas the

Commission observed that it could not go into the question of

treatment protocol with regard to Belle Vue, double standards

were applied in as much as BNWCCC is concerned, due to the

observation of the Commission that the latter did not extend

proper medical care to the patient.

37. Hence, the Commission ought to have adverted to the aforesaid

factors and yardsticks while deciding the issue of compensation.

38. Accordingly, WPA No.16381 of 2021 is allowed, thereby setting

aside the impugned award passed the respondent no.1-

Commission dated September 6, 2021 on the sad demise of Dr.

Shraddha Bhutra. The matter is remanded to the respondent

no.1-Commission for a re-adjudication, upon giving opportunity

to the parties to produce further evidence to substantiate their

cases and for a fresh decision on the issue as to the

compensation to be awarded against the BNWCCC and/or Belle

Vue Clinic in the facts and circumstances of the case, in the light

of the observations as made hereinabove. It is expected that the

Commission shall complete such re-adjudication at the earliest,

preferably within three months from the date of communication of

this order to the Commission.

39. There will be no order as to costs.

40. Urgent certified server copies, if applied for, be issued to the

parties upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )