DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

       C.C. CASE  NO. _152_ OF 2015

DATE OF FILING : 30.4.2015               DATE OF JUDGEMENT: 3.04.2019

Present                 :   President       :   Ananta Kumar Kapri

                                 Member(s)    :    Jhunu Prasad

COMPLAINANT   :    Andrew Francies, son of late Joseph Francies, 50, Alipore Road, Kolkata-27, P.S Alipore.

•  VERSUS  -

O.P/O.Ps                    :  1.  Dr. Sanjoy Mondal, Medica Super Speciality Hospital, 127, Mukundopure, E.M Bypass, P.S Purba Jadavpur, Kolkata-99.

                                    2.   Dr. Dilip Pahari, Medica Super Speciality Hospital, 127, Mukundopure, E.M Bypass, P.S Purba Jadavpur, Kolkata-99.

                                    3.    The Superintendent, Medica Super Speciality Hospital, 127, Mukundopure, E.M Bypass, P.S Purba Jadavpur, Kolkata-99.

__________________________________________________________________

                                                J  U  D  G  M  E  N  T

Sri Ananta Kumar Kapri, President

             Alleging medical  negligence as well as deficiency in service on the part of the O.Ps/doctors and hospital, the complainant has filed the instant case under section 12, C.P Act, 1986 agaisnt the O.Ps.  

               Facts leading to the filing of the instant case may be epitomized as follows.

               Complainant’s elder sister viz. Barbara Ghosh ,since deceased, was admitted to O.p-3 hospital on 30.12.2014 on the advicve of O.P-1 i.e Dr. Sanjoy Mondal  of O.P-3 hospital for removal of stent and removal of stones from Common Bile Duct (CBD). Next day i.e on 31.12.2014 she was placed in CCU without taking any consent from family members as her condition became ,as goes the version of the O.P, critical. Within a few hours of her admission, her condition turned from bad to worse due to wrong medication. She developed Cholangitis followed by septicemia , multi organ failure, coma etc. She was made a victim of gross medical negligence of the O.Ps. She was put to dialysis on 1.1.2015 for 15 hours  - firstly and secondly, for 6 hours each and thirdly for 3 hours in a day of 24 hours. She was again put to dialysis for the 4^th time on 2.1.2015. Dialysis sheets are not signed by the O.P doctors and these are full of various overwriting. The doctors of O.P-3 hospital were tremendously negligent; they did not explain the line of treatment either to the patient or to the relatives of the patient; nor did they explain the complications likely to arise from the treatment planned by the O.P Doctors. Noticing such kind of negligence on the part of the O.Ps, the complainant was compelled to take away the patient on 2.1.2015 to another hospital where she i.e the patient died o n 3.1.2015.  

               Now, alleging gross medical negligence, deficiency in service and also unfair trade practice on the part of the O.Ps, the complainant has filed the instant case ,praying for payment of compensation etc. by the O.Ps. Hence, this case.

              All the O.Ps have filed written statement separately to contest the case. It is averred by the O.P-1 doctor that patient had been suffering from cirrhosis of lever, portal hypertension with Hepatitis B virus (HBV) positive. She had stones in CBD since 2008 and had undergone an endoscopic retrograde cholangio – pancreatography (ERCP) on 6.2.2012 and hence had a stent lying inside her for more than 24 months, when it is a well known fact that these stents are normally allowed to remain in place for a maximum of three months as beyond this period there is every possibility for the stents to get blocked and subsequently infection in the form of fulminant cholangitis to develop. The patient was negligent in not getting the stents removed even after 24 months. Patient was clinically examined by him for the first time on 9.12.2014. Dialysis of the patient started not for high creatinine ,but for low urine and profound and intractable acidosis was the primary reason for multiple sittings of dialysis.  The treating doctors including O.p-1 had regularly apprised the patient’s relatives about her condition and the line of treatment. There is no deficiency in service ,nor any kind of medical negligence on his part and, therefore, the case should be dismissed in limini with cost.

               It is the averment of the O.P-2 that the patient was referred to him at the hospital by O.p-1 after her admission. He examined the patient for the first time on 31.12.2014 in the morning and found presence of cholangitis suggested by fever and jaundice, sepsis suggested by increased leucocyte counts (34940/cmm) ; and decreased urine volume with rise of creatinin from 1mg/dl to 6mg/dl suggesting a diagnosis of acute kidney injury. So, the patient was transferred to CCU.  As the patient had very high creatinine level and as there was chance of other complications tobe developed, she was put to dialysis as a life saving measure ,having taken consent of the relatives. But, before any further treatment could be provided, patient was discharged on 2.1.2015against medical advice and was taken to another hospital by her relatives. There is no deficiency in service ,nor any medical negligence on his part and the case should be dismissed in limini with cost.

              O.P-3 has also filed written statement  of its own ,wherein it is averred mainly that subsequent to admission of the patient, her condition deteriorated so much so that she was taken to CCU as a life saving measure. Consent of the relatives of the patient is not at all necessary in such precarious condition and there is no illegality if such consent is taken subsequently. All patients who happen to undergo surgery  are told about the risk of treatment/surgery and the same process has also been followed and documented in this regard. The complaint being harassive and malafide deserves to be dismissed with cost.

                Upon the averments of the parties, the following points are formulated for consideration.

POINT FOR DETERMINATION

1. Is there any medical negligence involved on the part of the O.Ps as alleged by the complainant in relation to treatment of deceased Barbara Ghosh, the elder sister of the complainant?
2.          Is the complainant  entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

             Petition of complaint is treated as evidence of the complainant vide his petition dated 8.12.2018. Evidence on affidavit is filed by the O.Ps separately and the same are kept in the record. Questionnaires, replies filed by the parties are 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 petition of complaint, written statement and also the materials on record. Considered all these.

                 Ld. Lawyer appearing for O.P nos. 1 and 2 has contended that the instant case is not maintainable in law inasmuch as the complainant is not the legal representative of the deceased person i.e Barabara Ghosh.

                 The complainant has filed some photocopy of documents along with his petition dated 4.12.2018, which are kept in the record. From Voter I.D card of the deceased Barabara Ghosh it is found that Koushik Ghosh was her husband. It is further revealed on perusal of the photocopies of Pan Card of the complainant and also the pan card of the deceased that Joseph Francis was their father. So, it stands established from all these documents  and the KMC death certificate that the complainant and the deceased  are full brother and sister and also that the husband of the deceased predeceased her without leaving behind any issue. This being so, the instant complainant being younger brother of the deceased is a legal heir of the deceased and as such the complainant is entitled to maintain a complaint under section 12, C.P Act, 1986 ,being the legal representative of the deceased Barbara Ghosh. The complaint is found to be quite maintainable in law.

                  There are some admitted facts which need no further discussion. Admitted fact is that the deceased was admitted to O.P-3 hospital on 30.12.2014 under O.P-1 i.e Dr. Sanjoy Mondal.  Also admitted is the fact that the deceased was shifted to Critical Care Unit (CCU) on 31.12.2014 i.e the very next day of her admission. It is the allegation of the complainant that deceased was shifted to CCU for nothing with a view to plundering money from the complainant. The version of the O.P doctor is that there was urgent necessity for shifting the patient to CCU. The grounds cited by O.P-1 are that the patient had possible Cholangitis with liver decompensation ( Liver failure) and respiratory distress. So, the patient , as goes his version, was shifted to CCU for better management of the patient. It is evident on record that the patient was admitted on 30.12.2014 to the hospital under O.P-1 and thereafter she was referred to O.P-2 i.e Dilip Pahari on 31.12.2014. O.P-2 found presence of cholangitis suggested by fever and jaundice, sepsis suggested by increased leucocyte counts (34940/cmm) ; and decreased urine volume with rise of creatinin from 1mg/dl to 6mg/dl suggesting a diagnosis of acute kidney injury. From the version of O.P-2 it is crystal clear that

the O.P-2 shifted the patient to CCU on some surmise and conjecture. O.P-1 also gave consent to the shifting of the patient to the CCU on the theory of probabilities. O.P-1 has stated in his written version that the patient had possible cholangitis with liver decompensation and respiratory distress vide para 2(d) at page 3 of his written statement. So, it is found that both O.P nos. 1 and 2 who are doctors of a super specialty hospital have sent the patient to CCU on mere surmise and conjecture. It is well known fact that lodgment in CCU entails a heavy cost to the patient and this is also admitted by the O.Ps in their written statement. So, the O.P doctors should have kept themselves confirmed about the presence of cholangitis and sepsis as presumed by them, to be present in the patient by cogent medical tests. They did not do it accordingly. No test was done by them for confirmation of cholangitis. MRCP report dated 11.12.2014  of O.P-3 hospital does not reveal presence of cholangitis. Discharge report of O.P-3 hospital ,which is on record, does not reveal cholangitis. Report dated 16.12.2014 of SSKM Hospital ,vide Annexure 12A to the petition of complaint, reveals “No cholangitis at present”. The prescription of O.P-1 , a copy of which is placed on record by the complainant, does not reveal the presence of cholangitis. Patient was admitted to hospital on 30.12.2014. Did cholangitis develop within the patient overnight? It might have been so, but the O.p doctors and the O.P hospital will have to establish by cogent evidence that cholangitis developed within the patient overnight. They could have produced the treatment sheet dated 30.`12.2014. But no such treatment sheet dated 30.12.2014 has been produced on record by the hospital authority. There is no evidence on record to show that the patient suffered from kidney or bladder failure. O.P nos. 1 and 2 are now seen to have acted merely on their self-drawn suggestions. Such kind of treatment is not expected from a super specialty hospital which remains open day and night and which boasts of rendering treatment of excellent quality. What prevented these doctors to be sure on the aforementioned diseases before shifting the patient to CCU. Heard earned money of the poor patients does not come ex nihili.  The hospital authority and also the doctors should have exercised their judgment perfectly and more carefully while sending the patient to CCU. They must not send the patient to CCU only for extracting money.

                   The patient was admitted to the hospital on 30.12.2014. There is no document furnished by the O.Ps to prove that on that very day the patient’s condition became very much critical. It has been argued on behalf of the O.Ps that the TLC of the patient increased tremendously, that the creatinine also increased considerably and, therefore, the O.P doctors rightly shifted the patient to CCU. Two medical lab examination report dated 11.12.2014 and 31.12.2014 are placed on record by the complainant. Report dated 11.12.2014 reveals that creatinine – 1.40 and report dated 31.12.2014 reveals that creatinine – 6.07, which is somewhat higher than the normal range  ( .07 – 1.20). The report dated 2.1.2015 reveals total WBC count is 34.980. Another important thing is available from the examination report dated 31.12.2014.  It shows the location of the patient as such, “Location: CCU 1(10)”. This implies that the blood sample of the patient was collected from the patient, when the patient was located in CCU. So, the raised data of medical examination reports dated 31.12.2014 & 2.1.2015 does never reflect what was the conditions of these things prior to her admission to CCU. The prescription of O.P-1 does never reveal that the patient was in critical condition and that she needed urgent shifting to CCU immediately after admission. What prevented him from mentioning in his prescription that the patient was in critical condition, requiring immediate admission to CCU. It is only for the reason that the patient was not in critical condition and she was not in urgent necessity of shifting to CCU.  Regards being had to all these, we are of the opinion that the O.Ps have awfully failed to prove that there was occasion necessitating the patient to be lodged in CCU. She was lodged in CCU for nothing by the O.Ps only for extracting money from her. We find no document in support of the version of the O.Ps who have failed to make out the critical condition of the patient before her admission to CCU. That apart, no pre-entrance test has been conducted by O.P nos. 1 & 2 to ascertain condition of patient before her shifting to CCU. This is nothing but medical negligence of O.P nos. 1 & 2 as well as unfair trade practice. It is unfair trade practice, because the said O.Ps gave a mis-statement to the complainant that the patient was in critical condition, necessitating shifting to CCU immediately.  

                   Upon perusal of the papers of the hospital, it is found that the case records have not also been properly prepared and maintained by the hospital authority.  The hospital papers appear to be self contradictory and as such a prudent man will think twice to place any reliance on those papers. This sorry state of hospital papers also goes a long way to reveal super carelessness and super-manipulation on the part of the super specialty hospital i.e O.P-3. In discharge report, issued by the O.P-3 hospital on 2.1.2015 , it is mentioned in the column of ‘Present History’, as such,

“ This 67 year old diabetic hypertensive known patient of CLD ( Hepatitis B related) with portal hypertension of CKD patient of choledocholithiasis. She was earlier diagnosed to have choledocholithiasis and was stented at that time. The stent was changed on repeated occasions ( 2008, 2012, December 2014). She was admitted here for surgical management”.

                  The patient Barbara Ghosh is said to be a CKD patient in the discharge report as mentioned above. CKD patient means chronic kidney disease of a patient. But, she had no kidney disease and it is highlighted in the expert report of the medical board, vide expert medical opinion sent by Medical Superintendent cum Vice Principal, SSKM Hospital , vide letter  no. SSKM/MSVP/642/2016 dated 19.7.2016, kept in the record. The expert medical report reveals thus,

“ (f)  she had no evidential support of having pre-existing renal disease”. So, it is found that the expert medical opinion belies the version of discharge report of O.P-3. A further perusal of hospital paper also goes to reveal that there is documentary manipulation caused by the hospital in its papers. The discharge report reveals that the patient was discharged from O.P-3 hospital on 2.1.2015 at 11.45 a.m , vide Discharge Certificate (Annexure 25 to petition of complaint). But dialysis sheet dated 2.1.2015 (vide Annexure 24  to the petition of complaint) says otherwise. It shows that dialysis of the patient continued from 10.30 a.m to 1.30 p.m on 2.1.2015 . One document reveals discharge of the patient at 11.45 a.m on 2.1.2015 and another document reveals that patient was on dialysis up to 1.30 p.m on 2.1.2015. We cannot understand which of the documents of the hospital is true. The fact remains that these documents have been manufactured by the hospital in order to cover up their negligence in the treatment of the patient. We want to say nothing more against the hospital and its doctors except this thing alone. The maintenance of records should be made properly by a hospital authority in so far as the treatment of the patient is concerned ; but that thing is not also done properly. Is it not gross carelessness on the part of the hospital and its doctors? It is gross carelessness and this carelessness of the hospital and the doctors pervades everywhere and in everything.

                  There are three duties of the treating doctors as laid down by the Hon’ble Apex Court in the case of Dr. Laxman Balakrishna Joshi Vs. Dr. Trimbak Babu Godbole ,reported in AIR 1969 SC 128. These three duties encompass the following cardinal principles,

1.  The doctor owes a duty of care in deciding whether to undertake the case.
2. The doctor owes a duty of care in deciding what treatment to give , and
3. The doctor owes a duty of care in the administration of that treatment.

The breach of any kind of duties gives a right of action for negligence to the patient. When a medical profession decides to treat a patient, he is duty bound to treat him with a reasonable degree of skill, care and knowledge . Failure to act in accordance with the medical standard in vogue and failure to exercise due care and diligent are generally deemed to constitute medical negligence.

Coming to the facts of the instant case, it is found that O.P-1 and O.P-2 unnecessarily sent the patient to CCU on their surmise and conjecture without doing any investigation. They did not act properly in doing so. This is nothing but medical negligence on the part of the O.P doctors i.e O.P nos. 1 and 2 , because they have caused breach of “Duty of care” imposed upon them by the law of the land.

The patient was put on dialysis by O.P-2 and O.P-1 has also supported the decision of O.P-2 to put the patient on dialysis. According to O.P-2, creatinine of the patient was high and was likely to develop AKI ( Acute Kidney Injury) and sepsis like lactic acidosis , hyperkalimia , fluid overload, vide para 4 of the written statement filed by O.P-2. Lactic Acidosis is a acid condition of a body and it can be controlled by medication. O.P-2 should have filed a medical literature to establish that such kind of acidosis can only be controlled by putting the patient on dialysis. No such medical literature has been filed by him. “Hyperkalimia” means presence of excessive potassium in the blood of the patient. Medical laboratory examination report dated 31.12.2014 is placed on record by the complainant and this report shows – Potasium-2.90 , whereas normal range is 3.50-5.30. So, it is found that potassium level of the patient was never above the normal range ; the patient was not at all a patient of hyperkalimia. Still, the patient is put on dialysis by O.P nos. 1 and 2 , saying that the patient is suffering from hyperkalimia. The patient was also put to dialysis to avoid sepsis. Symptoms of sepsis, as collected from the Internet, includes :

1. Fever above 101’F ( 38’C) or temperature below 96.8’F ( 36’C).
2. Heart rate higher than 90 beats per minute.
3. Breathing rate higher than 20 breach per minute.
4. Probable or confirmation information.

So, it is found that increase or decrease of temperature must remain present in the case of patient suffering from sepsis.No hospital record has been placed before the Forum to show that the temperature of the patient was recorded on 31.12.2014 ,on which date the patient was put on dialysis. Without recording temperature it cannot be ascertained whether sepsis was present within the patient or not. Rather, it is found that there is no noting of temperature on dialysis sheet dated 1.1.2015. Only there is a noting (35’Ç) in dialysis sheets ( 2^nd and 3^rd phase) dated 1.1.2015. But, the 2^nd phase-sheet is full of over-writing. So, the noting of temperature seems to be a subsequent manipulation. The version of O.P-2 also appears to be very much important in this regard. He does never say that the patient was suffering from sepsis . What does he say? He says that sepsis was likely to be developed and, therefore, the patient was put on dialysis. It has already been discussed that the doctors i.e O.P-1 and O.P-2 who are employed in a super speciality hospital i.e O.P-3 act on mere surmise and conjecture. They put a person on dialysis on mere surmise and conjecture. This is the lot of our patients and our patients are to suffer for gross carelessness of these doctors and this type of hospital.

The complainant has submitted in person all along before the Forum that no consent whatsoever was taken from them while shifting the patient to CCU or while putting her to dialysis. Consent in such a case is a must. The law requires not only consent but informed consent. The consent of the patient must be valid and based on adequate information. ‘Adequate information’ must be supplied to the patient by the doctors or any member of his team. Adequate information are to be supplied in the following manners –

1.  Nature and procedure of treatment and its purpose, benefits and effects;
2. Alternatives, if any, available;
3. An outline of substantial risk;
4. Adverse consequences of refusing treatment.

 O.P-3 has filed consent form vide annexure A to written statement filed by him. On perusal of this annexure A , it is found that it is a general consent form and nothing is written on it as to nature and procedure of treatment,. Nothing is written on it indicating outline of risk factor of the treatment sought to be rendered by the treating doctor. The style of writing annexure A reveals and reveals only that the job was performed in perfunctory manner.

O.P-1 was the treating doctor. He sent the patient to CCU. It is he who should have explained the risk of such treatment to the patient. It is he who should have taken the consent either from the patient or from the patient party . He should have given a chance to the patient/patient party to form a judgment in the matter of shifting to CCU or any other treatment. The aforesaid guidelines have been laid down by the Hon’ble Apex Court in the case of Samira Kohli Vs. Dr. Prabha Manchanda, reported in (2008) 2 SCC 1. The O.P Doctors have thrown the said guidelines into the air . They care a fig to comply with those guidelines of the Hon’ble Apex Court. They are ,therefore, held to be guilty of medical negligence , as it is found now, that carelessness has entered into their soul.

O.P-3 is a super speciality hospital. Our expectation knows no bound. We cherish very high expectation on a super speciality hospital. We desire treatment per excellence from such kind of hospitals. Patients go their by the reputation of super speciality hospital. The medical negligence has been redefined by the Hon’ble Supreme Court in Malay Kumar Ganguli Vs. Dr. Sukumar Mukherjee (2009) 9 SCC 221,wherein the Hon’ble Supreme Court has preferred Bolitho Test to Bolam Test.  It has been held therein that the quality of care to be expected of a medical establishment should be in tune with  and directly proportional to its reputation.

We have pointed out various kinds of flaws in the treatment of the patient. We have pointed out that the doctors of O.p-3 have acted on mere surmise and conjecture and have compelled the patient to siphon off a huge amount of money by shifting her to CCU and by subjecting her to undergo continuous dialysis . Proper treatment has not been rendered to that patient. Legitimate expectation of the patient, which is normally expected from a super specialty hospital, has been belied. . The hospital has failed to exercise care proportionate to the expectation of the patient and the complainant.

Last but not the least in importance, we want to say a  few words about the expert medical opinion which is submitted by the Medical Board of SSKM Hospital, Kolkata. The Expert Medical Report dated 19.7.2016 is kept in the record. That report has apparently gone against the complainant and a clean cheat has been given to the O.P doctors by the Medical Board. The Members of the Board have concluded as such,

1. There was no evidence of medical negligence by the treating doctors.
2. They followed the standard treatment protocol in treating the patient.
3. Barring the treatment given, no other treatment is advisable in this case.
4. Treating Doctors applied reasonable skill and care in treating the patient ( as evident from the documents supplied to us).
5. So, no question of medical negligence arises in this case.

Medical Board has assumed the role of the Court of Law. They have left no stone unturned to give clean cheat to their fellow brothers.  But we have to say one thing and unless it is said by us, our discussions remain incomplete. Medical negligence is a judicial term and it can be ascertained only by a judicial body upon consideration of the totality of the circumstances involved with line of treatment or surgery. Medical Board or medical expert cannot usurp the role of the judge in a court of law. They are to form their opinion only on whether the treatment was in keeping with the norms and standard of established medical procedure.

Upon what have been discussed above, it is found that the O.P doctors and the O.P hospitals have been gross negligence in discharging their duties towards the treatment of the patient namely Barbara Ghosh. The O.ps have unnecessarily shifted the patient to CCU and have also put to her on continuous dialysis. There are no documents supporting the opinion of the O.P doctors. The O.P doctors have been found to act merely on surmise and conjecture. They are, therefore, held to be guilty of medical negligence , deficiency in service and also unfair trade practice.

Now arises another question about the suffering of the complainant. Complainant has lost love and affection of his deceased sister. He has also expended a lot of money for the purpose of recovering his beloved sister. But, now it is found that he has only ploughed the sand. He is entitled to get compensation from the O.Ps. At the same time, it is evident on record that the complainant has not been able to get legal advice from any legal practitioner for want of money . On his petition , once a lawyer from the panel ,maintained by this Forum, was appointed to act on behalf of the complainant. But the said lawyer has not also acted properly as the complainant has not been able to provide fees of him.  This is the plight of the complainant now and regards being had to this plight of the complainant and other litigant public of similar condition, we are of the opinion that  a certain amount of compensation , which will be awarded to the complainant, should be kept apart in Legal Aid Account Fund of this Forum for the purpose of providing legal aid to the needy person like the complainant.

                    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 remain jointly and severally liable to the complainant for payment of compensation, are directed to pay a lump sum compensation amounting to Rs.15 lacs ,( which includes cost of treatment of the patient, compensation for physical and mental harassment of the complainant), out of which Rs.13 lacs will go to the complainant and balance amount will be deposited in the Legal Aid Account of this Forum ,within a month of this order, failing which the compensation amount and the amount of cost will bear interest @8% 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