DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _40_ OF 2015
DATE OF FILING : 21.1.2015 DATE OF JUDGEMENT:19.3.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Sri Anita Kar Majumder, wife of late Ranjan Sil of 19, Rifle Club West, P.S Regent Park, Kolkata-70.
O.P/O.Ps : 1. Rabindranath Tagore International Institute of Cardiac Sciences ( RTIICS) at 1489, 124, Mukundapur E. M Bypass, P.S Purba Jadavpur, Kolkata-99
2. Dr. Amitava Chakraborty, residing at Spring Dole
Apartment, 2, N.N Dutta Road, P.S Netaji Nagar, Kolkata-40.
3. Dr. Sujan Bardhan
4. Dr. Debabrata Ray
5. Dr. Mrinalendu Das
6. Dr. Somnath Chatterjee
All attached to . Rabindranath Tagore International Institute of Cardiac Sciences ( RTIICS) at 1489, 124, Mukundapur E. M Bypass, P.S Purba Jadavpur, Kolkata-99
__________________________________________________________________
J U D G M E N T
Sri Ananta Kumar Kapri, President
Ranjan Sil, the husband of the complainant is no more. He died in Rabindranath Tagore International Institute of Cardiac Science (O.P—1) on 11.11.2013 and, therefore, his wife i.e the complainant has filed the instant case under section 12, C.P Act, 1986 against the hospital and its doctors ,alleging gross medical negligence on their part.
Facts leading to the filing of the instant case may be epitomized as follows.
The husband of the complainant was a patient of heart ailment. He underwent open heart surgery in August, 2010 in O.P-1 hospital by O.P-5 i.e Dr. Mrinalendu Das. In October, 2012 he could not move his left leg and, therefore, contacted O.p-5 who advised him to come to the hospital on 8.11.2013 for check up. In the meantime, the patient started to have breathing difficulty coupled with chest pain. O.P-5 advised the patient for admission in O.p-1 hospital for necessary treatment. On 24.10.2013 the patient was admitted to the said hospital; but, O.P-5 was not available and, therefore, O.P-4 i.e Dr. Debabrata Ray was consulted. O.P-4 examined the patient and advised admission in the hospital for two days for observation. Accordingly, the husband of the complainant was admitted to O.P-1 hospital that day on payment of necessary charges. That day, he was transferred to ICCU ,though the condition of the patient was stable. According to O.P-4, the patient developed pneumonia and chest infection. On that day, he was referred to Dr. Sujan Bardhan , O.P-3 , a Chest Specialist, who found a little deposit of fluid in chest. On 26.10.2013 USG of chest was done and presence of plural effusion was found on both sides of lungs. Both O.P nos. 3 and 4 convinced the complainant that patient would recover fast by full dose of antibiotic and O.p-3 would drain out the fluid by syringe . The condition of the patient was stable at that time. On 27.10.2013 O.P-3 told the complainant that deposit of fluid was quite high and they would clear it by drain. On 29.10.2013 patient was shifted to general bed from ICCU. On 31.10.2013 about 50 ml fluid was cleared by drain. O.P nos. 3 and 4 told the complainant that the residue fluid would be cleared by antibiotics. Patient was, however, feeling better. On 1.11.2013 Professor Amitava Chakraborty , O.P-2, told the complainant that a minor operation of 45 minutes’ duration was to be done on the patient to clear residuary fluid. O.P nos. 3 and 4 also confirmed the proposal of O.P-2. No chance whatsoever was given to the complainant by those doctors to take a second opinion; they unduly influenced the complainant and also the patient and thereafter the complainant gave consent to operation. She deposited Rs.1,50,000/- out of the package cost of Rs.1,70,000/-. On 5.11.2013at about 5 P.M operation was conducted. On 6.11.2013, patient’s condition was not good. He was in drowsy condition. On 7.11.2013, O.P-3 told the complainant that blood had clotted in artery of lungs and, therefore, the patient needed a further operation. O.P-5, however, warned against such operation. On 8.11.2013, Thoracoscopic Decortination operation was done upon the patient. On 9.11.2013, the blood was found coming out from the operation side. Patient’s condition became critical; he was referred to Hematologist on 10.11.2013. Patient’s condition was reported to be improved. On 11.11.2013, O.P-3 advised dialysis due to poor output of urine. O.P-5, however, disapproved such dialysis. Suddenly, at 2.20 p.m it was reported by the doctors that the patient was dead. The cause of death was shown to be “Acute Pulmonary Thromboembolism” . O.P-2 ,3 and 4 conducted “Thoracoscopic Decortination” operation at their own risk in order to make professional and commercial gain. They are all guilty of medical negligence as well as deficiency in service. Therefore, the complainant has filed the instant case ,claiming for a large amount of compensation from the O.Ps. Hence, this case.
Written statement has been filed jointly by all the O.Ps, wherein the steps of treatment and operations as stated by the complainant in the petition of complaint are admitted.
The main grievance of the O.Ps is that they left no stone unturned to save the life of the patient and despite their best efforts, the patient passed away on 11.11.2013 at 2.20 p.m due to Acute Pulmonary Thromboembolism ,which is a known complication. There is no medical negligence or deficiency in service on their part and, therefore, the complaint should be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
Are the O.Ps guilty of medical negligence as well as deficiency in service as alleged the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Both the parties have led their evidences on affidavit ,which are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of the ld. Lawyers appearing for both the parties. Perused the petition of complaint, written statement and also the evidence led by both the parties.
Considered all these.
We like to reiterate the guidelines uttered by the Hon’ble Apex Court from time to time for the consulting physicians and surgeons. In Samira Kohli Vs. Dr. Prava Manchandan , AIR 2008 SC 1385, it has been observed by the Hon’ble Apex court that a doctor is to seek and secure the consent of the patient before commencing treatment/surgery and that the said consent must be voluntary and should be on the basis of “Adequate Information “regarding the nature of the treatment , procedure ,so that the patient or the patient party knows what is consenting to.
“Adequate Information” shall mean a) nature and procedure of the treatment, its purpose ,benefits and effects, b) Alternative, if any available, c) an outline of the substantial risk, d) adverse consequences of refusing treatment.
Coming to the facts of the instant case, it is found that the O.Ps have thrown the said guidelines of the Supreme Court into the wind. The operation has been conducted upon the patient several times. But , no valid consent has ever been taken by the O.Ps ,though it is incumbent upon them to take such consent either from the patient or from the patient party. It has been stated by the complainant herself in her evidence and also in her pleadings that the hospital authority has managed to get some papers signed from her without informing her about the consequences of the operation to be conducted upon her husband. The hospital authority would have been able to file the consent form from which it would be clearly discernable what kind of consent had been accorded by the complainant to the surgery or treatment procedure conducted upon her husband by the O.Ps. Had that consent form been produced before the Forum, it would have been available from that form whether the O.Ps have explained the risk involved with the treatment/operation conducted upon the patient. But no such consent form has been produced before the Forum. In absence of such consent form, we feel no hesitation to say that the O.Ps did not ever take any consent from either the patient or the patient party for the treatment and operation conducted on the patient in the hospital.
The operation has been conducted thrice upon the patient i.e on 31.10.2013, 7.11.2013 and lastly on 5.11.2013. On 31.10.2013, 50ml fluid had been aspirated from the chest of the patient, on 7.11.2013 pulmonary-CT-angiography was done and on 5.11.2010 “Thoracoscopic Decortination” operation was done upon the patient. All these are admitted by the O.Ps in the written statement filed by them. But , in no case of the operations, consent was taken by the O.Ps. There is no pleading that the operating doctors themselves explain the risk of operations to the patient or the complainant. Regards being had to this aspect in particular, we do say that it is gross medical negligence on the part of the O.P Doctors and also deficiency in service on their part.
It is fact that the patient was subjected to operation after operation. First of all, he was admitted to O.P-1/hospital on 24.10.2013. O.P-4 admitted him for two days for observation. What was the complaint of the patient at that time? The patient had mild breathing difficulty coupled with mild cough. It is also undisputed fact that this patient is a chronic heart patient. He underwent open heart surgery in August 2010 for replacement of valve. That heart surgery was done by O.P-5 i.e Dr. Mrinalendu Das. The patient was in the hospital from 24.10.2013 to 11.11.2013 ,on which date he was declared dead. During his stay in the hospital he has been subjected to various kinds of operation ,one after another by the doctors of O.P-1 hospital. Lastly, the patient was subjected to “Thoracoscopic Decortination” on 5.11.2013. This operation has fatal complication and its mortality rate is 100%. It has been so stated in the expert opinion received by this Forum. In the expert opinion dated 28.5.2016 received by this Forum from the Medical Superintendent cum Vice Principal of SSKM Hospital, Kolkata. The relevant portion of the expert opinion runs as follows:-
“The complications developed following the surgery quite common in view of compromised cardiac status of patient. Ultimately the patient developed pulmonary Embolism which itself is a very fatal complication. This complication bears near 100% mortality. Unfortunately the patient had succumbed to death due to this very grave complication inspite of the best efforts of the doctors”.
It is established by the expert report that the patient died due to pulmonary embolism which is a fatal complication and it bears near 100% mortality. From this opinion of the expert, we can imagine how grave the complication is. This complication arose out of “Thoracoscopic Decortination” operation. If a particular operation is involved with such high risk, the surgeon who conducted such operation should have taken a second opinion before jumping into action. Every prudent person will do it. Every prudent person will think twice over this matter while going to take such a risky step. But the doctors of the O.P-1 hospital did never bother to take a second opinion from any other especialised doctor of the field. They did not even care to explain the risk to the patient or the patient party. They kept all these suppressed. Is it not negligence on their part? Is it not deficiency in service on their part? In our opinion, the doctors of O.P-1 hospital had some ill intention in their mind. May be, they wanted to squeeze money from the complainant and ,therefore, they kept these suppressed to the complainant, because had they divulged the high risk factor of the said patient to the complainant, the patient would have gone out of their hospital. Such a conduct on the part of the hospital and the doctors of the hospital tantamounts to unfair trade practice. The hospital authority and the doctors , particularly O.P-1, 2,3 and 4 are held guilty of medical negligence as well as deficiency in service. O.P nos. 5 and 6 are not involved with the treatment and surgery of the patient and, therefore, they are considered to be not liable to the complainant in any way.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.P nos.1,2,3 and 4 with cost of Rs.10,000/- and dismissed on contest against the O.P nos. 5 and 6 without any cost.
The O.P nos. 1,2,3 and 4 , who are jointly and severally liable for payment to the complainant, are directed to pay a sum of Rs.10 lac ( ten lac) as compensation to the complainant within a month from the date of this order, failing which the compensation amount and the cost amount will bear interest @8% p.a till full realization thereof.
The compensation amount as aforesaid is awarded in consideration of the age of the deceased which was 50.
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
