DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 467 OF 2013
DATE OF FILING: 27.11.2013 DATE OF PASSING JUDGEMENT: 27.08.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : Shri Sushil Kumar Paul, S/O – Late Bijoy Kishore Paul, Deulpara, Anandabazar, Near Nandi Pukur, P.O. – Naihati, P.S. – Naihati, Dist. - North 24 Parganas, Pin – 743165.
Through : - Consumers’ and Elderly’s
Right Protection Society,
Registration No.: S/1L/No 57340 of 2008-2009
Having its Registered Office at 4H, Shanagar Road, P.S. – Tollygunge, Kolkata – 700 026.
O.P/O.Ps : 1. Dr. Gouri Shankar Bhattacharyya, C/O – Fortis Hospital No. 730, Anandapur EM Bypass Road, P.S. - Tiljala, Kolkata – 700 107.
Alternative Address : C/O – Orchid Nursing Home, P-17, CIT Road, Phoolbagan, P.S. – Phoolbagan, Kolkata – 700 054.
2. Medical Superintendent, Fortis Hospital Ltd., No. 730, Anandapur EM Bypass Road, P.S. – Tiljala, Kolkata – 700 017.
3. The Register, West Bengal Medical Council, 8, Lions Range, P.S. – Hare Street, Kolkata – 700 001.
4. Secretary, Medical Council of India, Pocket – 14, Sec – 8, Dwaraka, Phase – I, New Delhi – 110077.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Alleging medical negligence as well as deficiency in service on the part of the O.P.s, the complainant has filed the instant case under section 12, CP Act, 1986 praying for compensation etc.
The epitome of the facts leading to the filing of the instant case by the complainant runs as follows.
Complainant was suffering from rash and itching on his both legs and therefore he approached O.P. 1 doctor on 29.04.2011. He referred the complainant to Dr. Rajashree Banerjee who examined the complainant on 02.05.2011 and prescribed some medicines. Thereafter on 27.06.2011, the complainant was admitted to O.P. 2 hospital under advice of O.P. 1 who diagnosed the case of the complainant as one being “Autoimmune vasculitis” and applied the first dose of chemo therapy. He was discharged on 02.07.2011 from the said hospital with direction to attend the hospital on 06.07.2011 for review. On 06.07.2011, the complainant again attended the O.P. 2 hospital and O.P. 1 directed him to attend the hospital on 18.07.2011 for second dose of chemo therapy. In this way, 6 rounds of chemo therapy were applied to the complainant in O.P. 2 hospital by O.P. 1. According to the complainant he was not informed at any point of time by O.P. 1 that chemo therapy treatment was being applied to him. No consent of him was also ever taken by O.P. 1 before subjecting him to chemo therapy. So, alleging gross medical negligence and deficiency in service on the part of O.P. nos. 1 and 2, the complainant has filed the instant case praying for compensation etc. Hence, this case.
O.P. 1 has been contesting the case by filing W/V wherein it is contended inter-alia that the complainant first came to him on 29.04.2011 with complaint of bleeding gum, tounge, lip crack etc. He referred him to Dr. Rajashree Banerjee and Dr. Dhrubo Roy who are dental surgeon and also E.N.T surgeon respectfully. Patient was diagnosed to be suffering from “Autoimmune vasculitis” and therefore he was admitted to O.P. 2 hospital on 27.06.2011 for conservative treatment. Vasculitis is an inflammation of blood vessel which causes changes in the wall of blood vessels. As a part of treatment chemo therapy was done with the knowledge and consent of the patient party. Complainant was again admitted to the hospital on 18.07.2011 for treatment of second cycle of chemo therapy and he was discharged on 22.07.2011 with direction to come on 03.08.2011 for review. In this way 6 doses of chemo therapy was administered upon the complainant. No wrong treatment was ever done upon the complainant and neither medical negligence nor any deficiency in service was caused to the complainant. The complaint is vexatious and frivolous and therefore it should be dismissed in limini with cost.
O.P. 2 hospital has filed the written version which is kept in record. The content of the said written version is almost same with that of O.P. 1.
The names of O.P. nos. 3 and 4 have been expunged from this case, vide order no 44 dated 19.01.2018.
Upon the averments of the parties, the following points are formulated for consideration.
POINTS FOR CONSIDERATION
- Are the O.P.s guilty of medical negligence as well as deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief as prayed for?
EVIDENCE OF THE PARTIES
Both the parties have led their evidence on affidavit and these are kept in record. Questionnaires, replies and BNAs filed by the parties are also kept in record after consideration.
DECISION WITH REASONS
Point no. 1 and 2 :
Ld. Lawyer appearing for the complainant has contended that nothing was informed to the complainant by O.P. no. 1 about chemo therapy treatment. According to her, O.P. 1 is an oncologist. The patient was suffering from rash and itching on both legs and therefore he i.e. O.P. 1 doctor should have referred the patient to a skin specialist for taking opinion before subjecting him to chemo therapy treatment. Chemo therapy treatment is usually rendered to a cancer patient and the complainant was not having any cancerous disease. Neither biopsy nor any other test has been done by O.P. 1 to detect presence of carcinoma within the complainant. There is nothing mentioned in W/V filed by O.P. no. 1 that he got the trace of carcinoma within the complainant. In absence of all these, O.P. 1 has applied chemo therapy which is a medicine of treatment of cancerous disease upon the complainant. This is nothing but, as goes her submission, wrong treatment rendered by O.P. 1. O.P. 1 should therefore be held guilty of medical negligence and the complainant is entitled to compensation for the wrong treatment of O.P. 1.
It is further also submitted on behalf of the complainant that O.P. 1 should have taken valid consent from the complainant before administering invasive chemo therapy on the complainant. He should have divulged the details of the plan regarding therapy sought to be administered upon the complainant. But, nothing was stated to the complainant by O.P. 1 and no consent whatsoever was taken by O.P. 1 from the complainant before application of chemo therapy upon him. This is also one aspect of medical negligence on the part of O.P. 1, as goes the submission of Ld. Lawyer appearing for the complainant.
Ld. Lawyer appearing for O.P. 1 has submitted that the complainant was suffering from “Autoimmune vasculitis”. The medicine for vasculitis and cancer is one and the same. The medicines used as chemo therapy agent by O.P. 1 in the case of the complainant are used in the treatment of both vasculitis and cancer. According to him, complainant is not afflicted with cancer; chemo therapy has been given to him as part of treatment of vasculitis. To fortify his contention, Ld. Lawyer for the O.P.s has placed some medical literature obtained from website. It is further submitted by him that chemo therapy treatment is a conservative treatment and therefore, there is no need to take consent of the complainant. O.P. 1 has committed no wrong in the treatment of the complainant; he has acted in conformity with standard of normal medical protocol and he has not committed any medical negligence nor any deficiency in service in the treatment of the complainant.
It goes unchallenged that the complainant approached O.P. 1 on 27.06.2011 with complaint of rash and itching on his both legs. It also goes undisputed that O.P. 1 diagnosed the case of the complainant as one of “Autoimmune vasculitis” in case of mixed connective tissue disorder, as it is reflected from discharge summary dated 02.07.2011, page 28 of the petition of complaint. Equally undisputed is the fact that O.P. 1 has administered 6 rounds of chemo therapy upon the complainant on different dates. It also stands established on record that O.P. 1 doctor is an oncologist. In the face of such undisputed fact, it is to be seen first whether proper diagnosis of complainant was ever made by O.P. 1. We should know what vasculitis is and how vasculitis is diagnosed. Vasculitis is common inflammation of blood vessels i.e. arteries and veins. Vasculitis is thought to be an autoimmune disease which means the body comes under attack by its own immune system. In vasculitis immune system attacks the blood vessels.
There are various types of vasculitis and the division of vasculitis is made on the basis of the size of arteries such as vasculitis affecting largest arteries, vasculitis affecting medium sized arteries, vasculitis affecting small and medium sized arteries and vasculitis affecting small arteries only. Now about the diagnosis of vasculitis. To ascertain vasculitis, some most common tests are required to be done and these are : A) Biopsy – surgical removal of small piece of tissue for inspection of microscope; B) Angiography – a type of x-ray to look for abnormalities of blood vessels; C) a blood test. Some blood tests are so suggestive of a certain type of vasculitis that a positive ANCA test (Antinutrophil Cytoplasmic Antibodies) can help to detect this type of vasculitis (Source : American College of Rheumatology on Vasculitis, obtained from website and it is referred by the O.P. doctor).
Coming to the facts of the instant case, it is found that O.P. 1 made provisional diagnosis only to the effect that the complainant suffered from “Autoimmune vasculitis”. This decision was reached by the said doctor having noticed some abnormalities in blood report. In blood test report of the complainant, C-ANCA positive, serum IgE as 135, IgE as 81 and ANF/ANA positive, as stated by O.P. 1 in his W/V vide paragraph 17 thereof. But, it has already been mentioned in the medical literature referred to above that blood test is one of the methods for diagnosis of vasculitis. The 2 other methods are Biopsy and Angiography. O.P. 1 has not made any attempt to get Biopsy and Angiography report of the complainant in order to confirm his provisional diagnosis of vasculitis. Without being confirmed about the diagnosis of vasculitis, O.P. 1 doctor started to apply chemo therapy on the complainant. He has not taken proper care in the matter of treatment of the complainant. He has not taken as much care as a skillful physician should have taken in the case of treatment of the complainant. Moreover, he has not also determined the types of vasculitis the complainant was suffering from. We have made it clear in our forgoing discussion that there are many types of vasculitis and the treatment for all these vasculitis also differ in many respects. So, a good physician should first determine what type of vasculitis the complainant was suffering from. O.P. 1 has not made such diagnosis relating to the type of vasculitis; he has straightway taken a hasty decision to apply chemo therapy upon the complainant. He has not felt any necessity to take a second opinion from any other specialist. All these acts of O.P. 1 doctor appear to be layman’s like. The complainant was suffering from skin disease. O.P. 1 is not a skin specialist; he is an oncologist. Oncologist is a person who has acquired specialty in the study and treatment of tumors. O.P. 1 doctor has not been able to produce any evidence to prove that the complainant was suffering from any kind of tumors. It is not also case of the defence that complainant was suffering from cancer. Vasculitis may come in the field of different kinds of specialists i.e. Rheumatologists, Dermatologists, Neurologists, Ophthalmologists, and Nephrologists etc. So, O.P. 1 should have determined the type of vasculitis of the complainant and referred him to that specialist. Abstention from determination of the type of vasculitis by O.P. 1 doctor is medical negligence on his part. He has not given due importance to the treatment of the complainant; he should have referred the complainant to Dermatologists or to Rheumatologists or to Neurologists whatever it may be. The fact is that the case of the complainant does never come within the field of oncologists in which O.P. 1 is well versed. Still, O.P. 1 has not let the complaint to flee out of his hand; he has even gone down to the extent of applying chemo therapy (which is mainly used in any case of cancer treatment). For the sake of argument, if it be assumed for a moment that the complainant was suffering from vasculitis as diagnosed by O.P. 1, the O.P. could have prescribed other medicines for treatment of such disease instead of applying chemo therapy. Chemo therapy is the last weapon in any case of treatment, when all attempts to cure the patients go in vain. But, in the instant case, O.P. 1 has applied chemo therapy upon the complaint on the very first day i.e. on 27.06.2011. Having regard to all these as discussed above, it is found O.P. 1 doctor has not made proper diagnosis of the complainant and without making proper diagnosis he has applied chemo therapy upon the complainant. He has not given proper advice to the complainant by referring the complainant to any other specialists. He has been guilty of medical negligence as he has not done what he should have done in the case of treatment of the complainant. He has handled the case of the complainant like a tinker without having any special skill and knowledge in the treatment of the disease of vasculitis.
It is alleged by the complainant that no consent has been taken from him by O.P. 1, while proceeding to administer chemo therapy upon important. It is also the submission of the complainant that he has been kept in dark by O.P. 1 regarding application of chemo therapy upon him. Ld. Lawyer appearing for O.P. has contended that the chemo therapy treatment is conservative one and therefore O.P. 1 is not required to take consent of the complainant. The submission of Ld. Lawyer appears to be not acceptable. O.P. 1 adopted a prolonged course of chemo therapy to be administered upon the complainant. Complainant has every right to know what treatment is planned by the doctor as every kind of treatment is an innovation upon the body and mind of the patient. Patient has right to know the process of each and every treatment including the bad affects of treatment. It is only when the treatment plan as well as the effect of such treatment are informed to the patient, the patient can give a valid consent to the doctor. In the instant case, it has not been informed to the complainant by O.P. 1 that chemo therapy would be applied to him. A copy of discharge summary report dated 02.07.2011 has been placed on record with the petition of complaint, vide page 28 thereof. Nowhere in the discharge summary is mentioned anything about O.P. 1’s plan that he decided to administer chemo therapy upon the complainant. Such a concealment or suppression of the treatment plan of the complainant does not behove of a good physician. The object of physician is to cure the patient; the character of the physician must be transparent and must not admit any kind of duplicity. Concealment about the application of chemo therapy to the complainant by O.P. 1 makes the application of chemo therapy upon the complainant nothing but an unauthorized invasion upon the body of the complainant without his consent. This is also medical negligence as well as deficiency in service on the part of O.P. 1. O.P. 1 is the doctor and O.P. 2 is the hospital. O.P. 1 has committed wrong and negligence for which he is liable to the complainant. O.P. 2 being the hospital is also vicariously liable for omission and commission of O.P. 1. Complainant is deemed entitled to relief and reliefs which is granted as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P. nos. 1 and 2 with a cost of Rs. 10,000/-.
The O.P. nos.1 and 2 who shall remain jointly and severally liable to the complainant, are directed to pay a sum of Rs. 5,00,000/- as compensation to the complainant for loss suffered by him, physically and mentally due to medical negligence and deficiency in service on the part of the O.P.s, within a month of this order failing which the compensation amount and the cost amount will bear interest at the rate of 10 % p.a. till full realization thereof.
At the same time, it is laid down that the complainant will pay Rs. 50,000/-to legal aid account of this forum if the compensation amount is paid to him by the aforesaid O.P.s.
Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.
I/We agree Member President
Directed and corrected by me
President
