DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __152_ _ OF ___2014
DATE OF FILING :_3.4.2014 DATE OF JUDGEMENT: 12.4.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Makhanlal Sarkar, Vill. Shyamnagar, P.O Ranaghat, P.S Ranaghat, Dist. Nadia.
O.P/O.Ps : 1. Desun Hospital & Heart Institute, represented by its Managing Director, Desun More, EM Bypass, Kasba Goal Park, Kolkata- 107.
2. Dr. Sudipta Ray, C/o Desun Hospital & Heart Institute, Desun More, EM Bypass, Kasba Goal Park, Kolkata- 107
3. Dr. Uttam Kumar Saha, C/o Desun Hospital & Heart Institute, Desun More, EM Bypass, Kasba Goal Park, Kolkata- 107
4. Dr. Sanjay Singh, C/o Desun Hospital & Heart Institute, Desun More, EM Bypass, Kasba Goal Park, Kolkata- 107
5. Dr. Arnab Nagwani, C/o Desun Hospital & Heart Institute, Desun More, EM Bypass, Kasba Goal Park, Kolkata- 107
6. Dr. Pradip Sen, C/o Desun Hospital & Heart Institute, Desun More, EM Bypass, Kasba Goal Park, Kolkata- 107
7. Dr. Biplab Dolui, C/o Desun Hospital & Heart Institute, Desun More, EM Bypass, Kasba Goal Park, Kolkata- 107
8. Dr. Kaushik Sen, C/o Desun Hospital & Heart Institute, Desun More, EM Bypass, Kasba Goal Park, Kolkata- 107
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J U D G M E N T
Sri Ananta Kumar Kapri, President
With allegation of medical negligence and unfair trade practice on the part of the O.P Hospital and O.P Doctors, the complainant has filed the instant case under section 12, C.P Act, 1986 against the O.Ps.
Facts leading to the filing of the instant case may be epitomized as follows.
The complainant is a practicing lawyer in Kalyani Court ,Nadia. On 17.11.2012, he suddenly fell respiratory problem and went unconscious in court room. He was taken to Gandhi Memorial Hospital for giving instant treatment. Then, after discharge from the said hospital he was taken to O.P-1 hospital by his relatives as per advice of doctor of the aforesaid hospital for angiography and other investigations ,if necessary. He was admitted to the O.P-1 hospital under O.P-2 on 17.11.2012. O.P nos. 2,3 and 8 jointly examined the complainant and decided for coronary angiography (CAG). On 20.11.2012 angiography was done by O.P-3 with assistance of O.P-2. Next day, i.e on 21.11.2012, complainant started feeling pain in his right hand. Pain gradually increased. But, the above doctors did not bother to take any step except giving some oral medicines. When the pain went out of toleration, the O.P doctors again examined and told to the complainant that an infection had developed in the operated site and plastic surgery needed to prevent infection. As per advice of O.ps, complainant had to give consent for second operation. Thus, second operation was performed by O.P-5 ; rotten tissues were removed. But, after 4 days of second operation, he i.e the complainant again started feeling pain in right arm and also found that he had lost his ability to move that hand. O.P nos. 2 and 5 advised him to take discharge on assurance that his right hand would gradually improve in course of follow-up treatment. But, complainant has not recovered ; he cannot write properly now by his right hand. Even, pain in operated area still subsists and his professional carrier is on the verge of destruction. He cannot wear his dress now and has been a disabled person. He has been still suffering from tremendous pain at right wrist. He is a victim of medical negligence and unfair trade practice. So, he prays for payment of compensation of Rs.10 lac and Rs.6,62,335/- as cost of treatment. Hence, this case.
Written statement is filed by the O.P nos. 1,3,4,5 ,7 and 8 jointly, wherein it is contended inter alia that the complainant was admitted on 17.11.2012 at around 6.50 p.m with history of loss of consciousness in that morning preceded by vomiting and nausea. He was shifted to ICU on the advice of O.P-2. Investigations like ECG, ECHO, CT Scan of brain including several pathological tests were done and he was kept under clinical management. At about 10.30 p.m that day he complained dizziness. ECG was taken and it showed bradycardia. So, halter-monitoring was advised with installation of temporary pacemaker on SOS basis. On 18.11.2012 at about 2.10 a.m temporary pacemaker was placed. On 19.11.2012, the complainant was examined by O.P-3, a Consultant Cardiologist, and O.P-8 a Consultant Neurologist. O,.P-3 advised coronary angiography ( CAG) . On 20.11.2012 CAG was done; temporary pacemaker removed and patient was kept under constant monitoring. He was found comfortable without any complaint. On early morning of 21.11.2012, he had oozing of blood from CAG site. On 21.11.2012 at about 7.40 a.m , RMO of the hospital saw blister in the right wrist with blackening of skin and swelling on the right forearm of the complainant. Then , on the advice of O.P-7 an Orthopedic Surgeon, urgent arterial and venous Doppler study of the right upper-limb was done, which was normal. The advice of O.P-6, a Plastic Surgeon, was taken. He opined that patient developed post angiography compartment syndrome and advised fasciotomy. Fasciotomy was done by O.P nos. 5 and 7 on 21.11.2012. Thereafter, the condition of the complainant started developing gradually ; patient was discharged against medical advice. There is no deficiency in service on the part of these O.Ps. The treatment of the patient has been conducted properly in accordance with the established norms and protocols and, therefore, the case should be dismissed in limini against them.
O.P-6 has filed a separate written statement. He contends that patient was not admitted under him and he only gave opinion as a Plastic Surgeon after having examined the patient and treatment papers. He diagnosed that patient was suffering from compartment syndrome of the arm which is a complication associated with angioplasty. About 10 hours after angioplasty he saw the patient and was of the opinion that emergent fasciotomy should have been performed and unless it was performed, the complainant was likely to lose his arm for gangrene. He did not conduct fasciotomy. There is no medical negligence and deficiency in service on his part and, therefore, the case should be dismissed against him.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of medical negligence, deficiency in service and unfair trade practice as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The complainant led evidence on affidavit. So also by the O.P-1. Questionnaires, replies and BNAs filed are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 , 2 :
Already heard the submission of Ld. Lawyers ,appearing for the parties. Perused the petition of complaint, written statement and the expert opinion kept in the record and also the materials on record. Considered all these.
We know very well that the liability under Consumer Protection Act is strict liability, not absolute liability. Absolute liabilities admit no exception, whereas strict liability admits some exceptions. The exceptions are;- 1) Consent of plaintiff, 2) Act of God or Vis major, 3) Plaintiff’s own default, 4) Act of stranger and 5) Statutory authority. Except these defence, no other defence is permissible. In case of medical negligence if the O.P Doctor proves that he took due care and caution and also applied due skill and knowledge as is expected from an ordinary skilled man, he cannot be held liable.
Keeping this principle in mind, we like to proceed with our discussion to see whether the O.P doctors exercised due care and caution as well as due skill and knowledge in so far as the treatment of the complainant was concerned.
First of all, we like to see whether the decision taken by the O.P doctors for fasciotomy was correctly taken applying due care and skill as is expected from an ordinary skilled person of their stature. Fasciotomy operation was conducted upon the complainant on 21.11.2012 and this is admitted by the O.Ps in their joint written statement. The relevant portion of their statement as it transpires in para 1 of page 4 of their written statement is reproduced herein below as follows:-
“ Large hematoma caused hand ischemia due to pressure – induced occlusion of both the radial and ulnar arteries. Compartment syndrome is managed with the help of fasciotomy. Fasciotomy with hematoma evacuation is performed as an emergency procedure to prevent chronic ischemia injury”.
From the above averment, it is given to understand that fasciotomy was performed upon the complainant on emergent basis to prevent chronic ischemia due to pressure – induced occlusion of both the radial and ulnar arteries. The above averment of the O.Ps makes it clear that there was inadequate blood supply and blockage of blood vessel in the above mentioned arteries of the complainant. “Ischemia” means inadequate blood supply and “Occlusion” means blockage of blood vessel. According to the opinion of the O.Ps, as it goes in simple words, the complainant suffered from blockage of blood vessel and inadequate blood supply in the arteries of right forearm.
Now, we have to know what compartment syndrome is and what is fasciotomy operation. Definition of compartment syndrome and necessity of fasciotomy operation have been given in the reply given by the Medical Board to the questionnaire of the complainant. This reply is kept in the record. Compartment syndrome is increased pressure within one of the body’s compartments which contains muscles and nerves must commonly occurs in forearm and leg. Acute compartment syndrome as in the suspected case may lead to lack of blood supply to muscles and nerves resulting in loss of function of limbs, vide reply Serial no.2 of questionnaire of the complainant by Medical Board. This compartment syndrome may be relieved by operation which is called fasciotomy.
From all these, it is made crystal clear that fasciotomy operation is needed to clear compartment syndrome and compartment syndrome always involves lack of blood supply to muscles and nerves, which may result in loss of function of limbs. It is the version of the O.Ps that Doppler study was performed upon the complainant before fasciotomy and the Doppler study reveals normal flow of blood in the arteries of forearm of the complainant. If this be so, it may safely be held that there was no blockage in the artery of the complainant and that there was at all no inadequate blood supply in the relevant arteries of the complainant. Still , the O.P doctors decided to perform fasciotomy on the complainant. O.P-6 is said to be a plastic surgeon. He has admitted in his written statement that he advised fasciotomy. Our question is why such advice of fasciotomy of the complainant was given by the O.P doctors ,when there is clear evidence available in the Doppler study that there was no inadequate supply of blood , nor any blockage of artery of the complainant. This point has also come to the notice of the Medical Board and the Medical Board has scrupulously made an attempt to bypass this issue. It may be a part of their attempt to save the brothers of their medical fraternity.
To make the point more clear , the question of the complainant and the reply given thereto by the medical board are reproduced below as such:-
“ Question.3 - Whether compartment syndrome developed in this particular case of Makhanlal Sarkar after his operation.
“Reply no.3 - After angiography (CAG) there was a possibility of developing compartment syndrome in this case as significant muscle Oedema (swelling) led to some flow compromise as evidenced by the absence of radial pulse and cold right upper extremity. However, Doppler study showed arterial and venous flow in right upper limb”.
Does the above reply of expert body not indicate, though not in specific words, that there was no compartment syndrome within the patient, although there were oedema , absence of radial pulse and cold right upper extremity. The report indicates that there was no compartment syndrome suffered by the complainant as the Doppler study shows normal radial and venous flow in right upper limb. It indicates that fasciotomy was not the answer to the symptoms suffered by the complainant. But the O.P doctors have conducted fasciotomy on the complainant. They have acted on mere conjecture and hunch that chronic ischemia may develop within the complainant. The O.P doctors have done what they should not have done. They have not exercised due care and skill while performing treatment of the complainant. They have not discharged the strict liability entrusted upon them by law. This is nothing but medical negligence on their part.
It is the case of the complainant that his right hand does not work properly still now. It is his case that he cannot write properly by his right hand and that even he cannot wear his dress. The complainant was examined by the Medical Board and the Medical Board has also found that the right hand of the complainant is not working properly, vide the report dated 18.4.2016 of the Medical Board, kept in the record. The relevant portion of the said report is quoted as follows:-
“……..the debridement of the degenerated tissue with fasciotomy was done correctly. There was no evidence of any problems of arterial flow of the finger, though the patient presently complained of difficulty in using small muscle of his right hand specially in writing after few lines. May be due , as opined by the Neurologist, to motor deficit or associated osteoarthritis for which the present board advised certain investigations on 15th February 2016…”
This report also corroborates the complainant’s version that the right hand of the complainant is not working properly. According to the expert medical opinion, the cause of such inability of the right hand of the complainant is motor deficit or associated osteoarthritis . There is no evidence on record that the complainant suffered from osteoarthritis. So, question of inability of the right hand of the complainant caused by osteoarthritis does not arise. Such inability is attributed to motor deficit as pointed out in the expert medical board as referred to above. Motor deficit means deficiency in motor nerve. In this regard, reply no.7 given to the question of the complainant by Medical Board seems to be very much important and relevant. The said reply goes thus;
“7. Usually at the time of processing the wound debridement , the local important structures including nerves are not damaged because only the devitalized tissues are removed. But it cannot be opined with certainty as anything may happen inadvertently and can be confirmed by the operative surgeon himself”.
From the aforesaid medical reply of expert medical body, it is crystal clear that there occurs no injury to nerves at the time of processing the wound debridement. But, nerve may be injured due to inadvertence of operative surgeon. It has already been mentioned that the problem of the right arm of the complainant is due to motor nerve injury. Motor nerve is not functioning properly and it has been so pointed out in the expert medical report. There is no explanation from the operating surgeon as to why this motor nerve of the complainant is not functioning and how the motor nerve received injury which has impaired normal functioning of the said nerve. Taking all these into consideration we feel no hesitation to say that the impairment of the normal power of the right arm of the complainant is nothing but due to inadvertence of the operating surgeon during the process of wound debridement . It is undisputed fact that wound debridement operation of the complainant was conducted by the O.P doctor. All these facts also go to prove one thing and one thing only that O.P doctor did not apply due care and skill while performing debridement operation upon the complainant and ,therefore, they are held to be guilty of medical negligence and consequently deficiency in service on their part. The complainant is, therefore, entitled to get compensation from the O.Ps.
Last but not least in importance, we go on reiterating that the private hospitals and doctors thereof have scant regard to the compliance of the guidelines of the Hon’ble Supreme Court in the matter of taking consent of the patient while proceeding to perform diagnostic or surgical treatment on them. In Samira Kohli Vs. Dr. Prava Manchanda, reported in AIR 2008 SC 1385, it has been laid down by the Hon’ble Apex Court that the consent of the patient taken by the doctors must always be informed consent and informed consent must be based on adequate information supplied to the patient or to the patient party by the doctor or the members of his team.
In the instant case, it is given to understand to this Forum on behalf of the O.P that the compartment syndrome is the usual complication of CAG. The doctors who performed CAG of the complainant should have disclosed before the patient that such and such complications were likely to arise the patient and thereafter consent of the patient was obtained. In that case only, consent is said to be informed consent and such kind of consent was valid and legal. If such informed consent is not taken by the doctors that consent is of no avail. Performing any kind of treatment/surgery without taking such kind of consent form the patient or the patient party is nothing but a clear case of medical negligence.
Coming to the facts of the instant case, it is found that no consent form has been placed on record by the O.Ps to prove that they took valid consent from the patient before performing the operation. In absence of such valid document we feel constrained to say that the O.P doctors did not take any “Informed consent” from the complainant before performing the treatment/surgery upon the complainant and this is also clear instance of medical negligence on the part of the doctors.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps with a cost of Rs.10,000/-.
The O.Ps, who shall be jointly and severally liable to the complainant, are directed to pay a sum of Rs.4,50,000/- as the treatment cost sustained by the complainant and also a sum of Rs.4 lac as compensation for medical negligence of the O.Ps to the complainant within a month of this order, failing which, the compensation amount and the cost amount will bear interest @9% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to deliver a copy of the judgment free of cost to the parties concerned.
President
I / We agree
Member
Dictated and corrected by me
President
