DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __305_ _ OF ___2015
DATE OF FILING :_30.6.2015 DATE OF PASSING JUDGEMENT: _02.11.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Smt. Geeta Saha, deceased complainant, substituted by her legal heirs and representatives namely (a) Sri Gobindo Saha, (b) Gopinath Saha and (c) Smt. Namita Saha, all sons and daughter of late Profulla Chandra Saha and Late Geeta Saha and residing at 16/K/1, Jadav Ghosh Road, Sarsuna, P.S Sarsuna, Kolkata – 700 061.
O.P/O.Ps : 1. Dr. Dibyendu Halder, at 114F/1C, Salimpur Road, Kolkata- 31, P.S Lake.
2. Apex Clinic Pvt. Ltd. 844A, Raja Ram Mohan Roy Road, Behala, Kolkata – 68, P.S Thakurpukur.
3. Dr. Aniruddha Saha, at Sarsuna Medi Search, 159, Satin Sen Pally, Sarsuna, Kolkata – 61.
4. S.S.K.M Hospital, Department of Gastroenterology, 244, A.J.C Bose Road, Kolkata – 20, P.S Bhawanipur.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
With the allegation of medical negligence against the O.Ps, the original complainant namely Smt. Gita Saha, since deceased, approached the instant Forum by filing the instant case under section 12, C.P Act, 1986.
The facts leading to the filing of the instant case by the complainant may be epitomized as follows.
The original complainant is no more to see the result of the proceedings filed by her. Her sons and daughters have been substituted in this case for her. The original complainant aged about 71 years once fell ill suddenly and she approached the O.P-3 i.e the Doctor of her neighborhood who examined her and opined that the complainant was suffering from Gall Stone. He referred the complainant to another doctor i.e the O.P-1. O.P-1 found that the said complainant was suffering from Gall Stone upon examining the pathological test report and advised her tobe admitted to the Nursing Home i.e O.P-2 immediately for open Cholecystectomy on 14.11.2013. Accordingly, the said complainant was admitted to the said Nursing Home on 13.11.2013 and operation was conducted upon her by O.P-1 on 14.11.2013. Thereafter, prescribing some medicines O.p-1 discharged the said complainant from the Nursing Home on 17.11.2013 with direction to attend the Nursing Home on 22.11.2013 for review check-up. Since after discharge from the Nursing Home on 17.11.2013, the said complainant felt uneasiness and pain in operated area. On 22.11.2013 she attended O.P-1 and reported her difficulties to him ,but O.p-1 treated the patient most casually; he prescribed some medicines and tried to convince her that it was normal phenomena of such operation and would be cured in course of time. But, the pain continued unabated and, therefore, the original complainant was compelled to attend the chamber of O.P-3 on 24.11.2013 . O.P-1 examined the complainant and advised USG and also prescribed some medicines. But any relief was a far cry to the complainant. So, she visited SSKM Hospital at Calcutta for further check up and ,there Dr. B.K Dhali advised her immediate operation to the hospital. Complainant was admitted to SSKM Hospital ; operation was conducted again upon her there on 11.12.2013 and she was discharged from the said hospital on 14.1.2014. The said complainant incurred a cost of Rs.2,50,000/- due to wrong and negligent operation conducted by the O.P-1 and 2. O.P-3 has not also advised her to take immediate admission to any hospital or Nursing Home even after knowing the secretion from bile duct. So, he was also negligent in rendering treatment to the complainant. The condition of the said complainant started deteriorating day by day and ultimately she succumbed to death on 20.3.2017 due to faulty and negligent operation of O.P-1. Complainant no.1 ,the son of the original complainant lodged a complaint before the West Bengal Medical Council during lifetime of his mother , alleging medical negligence against O.P-1. The said council found O.P-1 guilty and ordered the name of O.P-1 to be struck out from the Register for one year. Now, the complainants pray for payment of cost of treatment amounting to Rs.2,50,000/- and also for compensation amounting to Rs.5 lac, etc. hence, this case.
The O.P-1 has been contesting the case by filing written statement ,wherein it is admitted that the patient was admitted to the Nursing Home on 13.11.2013 and that he conducted operation under general anesthesia upon the original complainant on 14.11.2013 after having taken written informed consent from the patient’s relatives. Gall Bladder of the patient was dissected out; cystic duct and artery were ligated separately with double silk ligatures. Operation was successful; patient was stable and no operative complication complained. The patient was discharged on 17.11.2013 ( 21.11.2013 perhaps written mistakenly) with medication advice. Thereafter, the patient did not come back to him for removal of stitch and dressing on 21.11.2013, nor did she report anything to him on that day. Her histopathology (Biopsy) report was not shown to him.
According to this doctor, i.e O.P-1, there may arise Biliary Fistula, resulting from injury of Common Bile Duct (CBD) or slip of Ligature from Cystic Duct ,which is a well-known complication in case of GB surgery. But, it can be contained by early diagnosis and management. As the patient did not report to him after operation, there arises no question of early management. There is no medical negligence on his part as alleged by the complainant and, therefore, the case should be dismissed in limini against him with cost.
Another written statement has also been filed by the O.P-3 who is a Homoeopath. According to him, he only supplied names of some eminent Surgeons for operation of Gall Stone of the original complainant. After operation, she came to him and he advised USG for her whole abdomen. Thereafter, she never returned to him. The complaint is vexatious and there is no medical negligence whatsoever on his part and as such, the complaint should be dismissed in limini with cost.
O.P-4 has not filed any written statement to contest herein ,because there is no allegations leveled against him by the complainant.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged in the complaint?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit has been filed on behalf of both the parties and the same are kept in the record after consideration. Questionnaires, Replies, BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of Ld. Lawyers ,appearing for the parties. Perused the pleadings of the parties and the materials on record. Considered all these.
A serious allegation of medical negligence has been brought against the O.Ps by the complainant. In a case of such kind, there are so many legal propositions propounded by our Hon’ble Apex court from time to time and for the sake of maintaining brevity in our judgment we think that we should not go through elaborate discussions of all those legal propositions observed by the Hon’ble Apex Court and we should proceed straightway to discuss the case on its merits.
In Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu, Guardbole and Anr. reported in AIR 1969 SC 128, the Hon’ble Apex Court was pleased to observe as follows: “The Practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is for the Law requires”.
In the light of the above observations, we do say that he highest degree of care is being not expected from the Surgeon i.e O.P-1.We only want a reasonable degree of care which is expected from an ordinary professional . Keeping the standard of carte in mind we proceed to see whether O.P-1 has discharged his duty properly in so far as the operation conducted by him on the deceased complainant is concerned.
The operation was conducted by the O.P-1 upon the deceased complainant on 14.11.2013 and the patient was discharged from the Nursing Home on 17.11.2013 . An open Cholecystectomy (removal of Gall Bladder) was done by the O.P-1 on the deceased complainant on general anesthesia. All these facts go undisputed. On a perusal of the materials on record, it is found that the O.P-1 did not take reasonable care during pre and post operative period. He was negligent all the while and it is so discernible on record.
Firstly, he did not make any pre-operative assessment of the patient before conducting the operation. A doctor should have made complete assessment of the patient before doing any kind of surgery. He should not rely upon the investigation results made by others. A copy of prescription dated 9.11.2013 has been filed on record by the complainant and it is seen therefrom that the Dr. D. Halder (O.P-1) has suggested some investigations to be done by the complainant. These investigations have been suggested by the said doctor without having examined the patient. We cannot understand how the Doctor suggests some investigations without having perceived the condition of the patient. This conduct on the part of the Doctor i.e O.P-1 is by itself a negligent one and may well be termed as a professional misconduct. This is one side of the matter.
The another side is that no investigation report was taken by the O.P-1 before conducting the operation upon the deceased complainant. Had there been any investigation or had there been any investigation results obtained, O.P-1 would have certainly mentioned all those results on the prescription or on the discharge certificate issued from the Nursing Home. No such investigation results have been mentioned on any prescriptions or on the discharge certificate issued from the Nursing Home. A copy of such discharge certificate is filed on record. So, it is found that O.P-1 conducted the operation upon the deceased complainant who was a 72 years old woman without making pre-operative assessment about her conditions. In Nizam’s Institute of Medical Science case, (2009) 6 SCC 1, it has been held that if complete investigation prior to actual operation not carried out, it is negligence of the doctor. Had O.P-1 done complete investigation, blockage at mid CBD ( which is detected by Dr. Dhali of SSKM Hospital) could have been detected and in that case complication arising from such destruction could have been avoided and blockage unlocked. Negligence and carelessness on the part of the O.P-1 thus started to make its first foot step herein.
Let us now proceed a further in our discussion to see whether any other carelessness has been done by the O.P-1.
O.P-1 has not also taken any post operative care even after operation of the deceased complainant. We have already mentioned that the said complainant was put to Cholecystectomy i.e removal of gall bladder. There is a great risk involved with such kind of surgery. As there is great risk involved in the surgery, a great care should be taken by the Surgeon while doing such kind of operation.
A few lines taken from Wikipedia (Internet) run as follows:-
“A serious complication of Cholesystectomy is bilary injury or damage to the bile duct. Damage to the bile duct is very serious because it causes leakage in the abdomen. Signs and symptoms of a bile duct leakage includes abdominal pain, fever and signs of sepsis several times following surgery. Complication from a bile leakage can follow a person for years and can lead to death. Bile leak should always be considered in any patient who is not recovering as expected after Cholecystectomy”.
So, it is found that the Cholecystectomy involves a greater degree of risk. The greater the risk, the greater the care which a surgeon should take in favour of such kind. The discharge report of Institute of Post Graduate Medical Education and Research, Kolkata, commonly known as SSKM Hospital is kept in the record. The patient was ultimately forced to be admitted to SSKM Hospital when post operative complications made her life miserable. From that discharge report is found that several complications arose after the operation conducted by the O.P-1 upon the deceased complainant. These are leakage of bilious fluid from the site of drainage tube, accumulation of biles in peritoneal cavity, ascits, complete block at mid common bile duct (CBD) with biliary leak, pleural effusion, septicemia etc. But, O.P-1 discharged the patient from the Nursing Home simply mentioning in the discharge certificate that she was on stable condition. It is the duty of the O.P-1 to explain how all these complications developed with the deceased complainant in post operative period. He did not care to look after all these. Even he did not care to attend the patient during her stay in the Nursing Home. Had he attended the patient in the Nursing Home during her stay, it would have been mentioned in the consolidated bill dated 17.11.2013 issued by the Nursing Home . A copy of such bill is placed on record by the complainant and nowhere in the bill is found that any fee was taken from the complainant for visit of the doctor to her during her stay in the Nursing Home in course of post operative period. Regards being had to all these, we feel inclined to say that O.P-1 doctor did not take proper care in post operative period and this negligence on the part of O.P-1 gave rise to various complications of the patient as mentioned above. All these complications to which the deceased complainant was subjected are contributions of the negligence of O.P-1 , and the deceased complainant had to bear the brunt of these to her death.
That O.P-1 is medically negligent is also found established in the report of West Bengal Medical Council. The complainant no.1 i.e the son of the deceased complainant lodged a complaint before the WBMC, Calcutta alleging negligence on the part of the O.P-1 in so far as the treatment of his mother was concerned. The said Council gave opportunity of hearing to the doctor and the complainants and thereafter found the doctor guilty of medical negligence and ordered his name to be struck off from the Register maintained by it. This report of medical council also goes a long way to prove that the O.P-1 was negligent in so far as treatment of the deceased complainant was concerned.
Next comes the question whether the Nursing Home i.e O.P-2 can be held vicariously liable for medical negligence committed by the O.P-1 . It has already been held that the O.P-1 committed medical negligence in the treatment of the deceased complainant. In Smt. Sabita Garg Vs. the Directo , National Heart Institute, 2004(8) SCC 56, the Hon’ble Supreme Court held that the hospital which admitted the patient for treatment can in no case be exonerated on the plea that its attending doctor who alone should be hauled up. Relying upon the said ratio as propounded by the Hon’ble Apex Court we do hold that the Nursing Home authority i.e O.P-2 will also be liable for negligence caused by the O.P-1.
Now about the negligence of O.P-3. We should first know who this O.P-3 is. O.P-3 is also a doctor; but he is a Homeopath, having BHMS degree. What is his role in this case ? Upon scrutiny of the materials on record , it is found that he acts as the Assistant of O.P-1. It is he who referred the deceased complainant to O.P-1 for surgery and it has been so stated by the complainant in their evidence. We find nothing to disbelieve the evidence of the complainant in this regard. That there is a nexus between the O.P-1 and O.P-3 is also reflected in the report of proceedings of West Bengal Medical Council. What has O.P-3 performed in this case? He did the dressing of the deceased complainant and also prescribed medicines. We feel no difficulty to say that O.P-3 prescribed medicines for the deceased complainant in post operative period having taken instruction from the O.P-1. The copies of 2 prescriptions issued by the O.P-3 have also been filed on record by the complainant. A perusal of these prescription dated 8.11.2013 and 24.11.2013 reveals that O.P-3 prescribed Allopathic medicines and also Homeopathic medicines. Homeopathic medicines are written on the prescriptions on the upper portion of the prescription and then Allopathetic medicines are written and this appears to be a tactics innovated by the O.P-3 in order to cover up his own misdeeds.
Be that as it may, it is sheer negligence and breach of duty on the part of the O.P-3 who being a layman in Allopathetic medicines prescribed allopathetic medicines to the patients and for this reason O.P-3 is held liable for causing medical negligence to the deceased complainant.
As regards O.P-4 , there is no allegation leveled against him by the deceased complainant and as such the complaint requires to be dismissed against him.
To sum up , it is found that there was total lack of duty to take care on the part of O.P-1; he did not apply even reasonable care and skill to treat the patient and therefore, the complainant, i.e the old lady had to carry the brunt of such negligence to her death.
In the consequence, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 1 and 3 and decreed exparte against O.P-2 with a cost of Rs.10,000/- .
Against O.P-4, the complaint is dismissed without cost.
The O.P nos. 1 and 2, who are held jointly and severally liable for payment of compensation to the complainants, are directed to pay Rs.4 lacs as compensation for causing medical negligence to the deceased complainant and also to pay a sum of Rs.17,135/- which has been paid by the deceased complainant to the O.P-2 as cost of treatment ,within a month of this order ,failing which the compensation amount, the cost amount of treatment and also the amount of litigation cost will bear interest @8% p.a till full realization thereof.
At the same time, the O.P-3 is also directed to pay compensation of Rs.1 lac for causing professional negligence , out of which Rs.50,000/- shall be given to the complainant and Rs.50,000/- shall be paid to Consumer Welfare Fund, within a month of this order, failing which this amount will also bear interest @8% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
