DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 134 OF 2014
DATE OF FILING: 25/03/2014 DATE OF PASSING JUDGEMENT: 18/07/2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : Mrs. Kuheli Sarkar, W/O – Mr. Partha Pratim Sarkar, Residing at village – Mangalpur, P.O. - Balurghat, Dist. – Dakshini Dinajpur, Pin – 733101.
O.P/O.Ps : 1. Rabindranath Tagore International Institute of Cardiac Science, 124, Mukundapur, E. M. Bypass, Kolkata – 700 099.
2. Dr. Asish Ghosh, Department of Gynaecology & Obstetrician, Rabindranath Tagore International Institute of Cardiac Science, 124, Mukundapur, E. M. Bypass, Kolkata – 700 099.
3. Dr. N.P. Bohidhar, Department of Gastroenterology, Rabindranath Tagore International Institute of Cardiac Science, 124, Mukundapur, E. M. Bypass, Kolkata – 700 099.
4. Dr. Sanjay Kumar Dubey, Department of General Surgery, Rabindranath Tagore International Institute of Cardiac Science, 124, Mukundapur, E. M. Bypass, Kolkata – 700 099.
5. Health Hub Clinic, 131/1A, Dr. Meghnath Saha Sarani, Gariahat, Kolkata – 700 029.
JUDGMENT
Sri Ananta Kumar Kapri, President
With allegation of medical negligence and taking excessive bill from the complainant by Rabindranath Tagore International Institute of Cardiac Science (O.P. – 1), the complainant has filed the instant case under section 12, CP Act, 1986 against the O.P. hospital and its doctors i.e. O.P. nos. 2 to 4.
Facts leading to the filing of the instant case may be epitomized as follows.
On 27.11.2012, the complainant had excruciating pain in her abdomen and therefore she went to O.P. no. 2 for treatment. O.P. no. 2 treated her in O.P. 5 clinic. He detected tumor in the uterus of the complainant having gone through the reports of some clinical tests. He advised her to meet him again on 30.11.2012 with result of CT Scan. On 30.11.2012, complainant met O.P. 2 in O.P. 5 clinic and O.P. 2 advised her admission in O.P. 1 hospital. On 03.12.2012, the complainant was admitted to O.P. 1 hospital under the guidance of O.P. no. 2 with acute abdominal pain etc. She was kept under observation and some investigation was also conducted on her. Thereafter, she was discharged from the hospital on 07.12.2012 without any kind of improvement of her health. She was again admitted to the said hospital on 11.12.2012 as per advice of O.P. doctors. On 12.12.2012, her hysterectomy and bilateral salpingo oophorectomy was conducted upon her. On 17.12.2012, she was discharged from the said hospital with an antibiotic course prescribed by O.P. 2 to be taken for 7 days. While taking the antibiotics, the abdominal pain of the complainant got subsided. After 7 days, when use of antibiotics was stopped, abdominal pain of the complainant again crept in. On 13.01.2013, she was again admitted to emergency ward under supervision of O.P. 3. Thereafter, she also remained under supervision of O.P. no. 4. Her health condition started gradually deteriorating and no satisfactory answer was available by the husband of the complainant from the O.P. doctors. Then, O.P. 4 scheduled an operation on 16.01.2013 on a “package contract” of Rs. 1,02,000/-, giving positive assurance to the complainant that no additional expenditure would be required by her. On 16.01.2013, the surgical operation started at 8 a.m. and it continued for about 7 to 8 hours after which patient was kept in ventilation for long 12 days. Further, O.P. 1 hospital charged the complainant Rs. 5,88,000/- over and above the “package contract” without any plausible explanation. The complainant had also to pay Rs. 11,000/- to the O.P. 1 hospital in addition to above amount of Rs. 5,88,000/-. It is alleged by the complainant that she has been unnecessarily squeezed by O.P. 1 hospital in cahoots with its O.P. doctors for the purpose of becoming unjustly enriched, which is deficiency in service on their part. Complainant has now prayed for refund of Rs. 5,92,000/- which has been unjustly taken from her by the O.P.s and also for payment of Rs. 5,00,000/- as compensation for mental anguish and harassment caused to her by the O.P.s.
Hence, this case.
O.P. nos. 1 to 4 have filed W/V to contest herein. It is contended by them inter-alia that the complainant was admitted to the hospital on 03.12.2012 with acute abdominal pain. She had Per-Vaginal (PV) bleeding, DM, HTN, Fatty Liver and grossly deranged liver function test (LFT). On that day O.P. nos. 2 and 3 saw the patient. O.P. no. 4 had also seen on 04.12.2012 for her abdomen pain with vomiting. Various investigations were conducted and the investigations revealed grossly deranged LFT. USG revealed edematous gallbladder with sludge; total leucocyte count was 8.3 thousand per cu.mm. Patient was managed conservatively. Pain subsided and she was discharged on 07.12.2012.
She was again admitted to the hospital on 11.12.2012. This time, O.P. 3 and Dr. D. Sanyal had seen her on 12.12.2012. The patient underwent adhesiolysis followed by abdominal hysterectomy and bilateral salpingo oophorectomy. On 14.12.2012 she developed abdominal pain and fever which subsided with medication on 15.12.2012. O.P. 3 again saw the patient for pain. Patient gradually recovered and was discharged on 17.12.2012.
She was again admitted to the hospital on 11.01.2013 and since 11.01.2013 to 16.01.2013 she was under observation and conservative management only. Observation charge was taken from her. On 16.01.2013, diagnostic laparotomy was done upon her and when her problems were detected, she was put under a package surgery. Her case was finally diagnosed as one of sub-acute small intestinal obstruction. “The package contract” was Rs. 1,02,000/- and such contract, as goes the submission of the O.P.s, was for a definite period i.e., from 16.01.2013 to 19.01.2013 – which does not cover the preceding period of observation of the patient. Patient’s condition deteriorated immediately after operation and therefore, she was kept in hospital for more days i.e. from 20.01.2013 to 31.01.2013. The complainant had to pay the extra charge for her stay in the hospital from 20.01.2013 to 31.01.2013. There is no unnecessary expense or medication imposed upon the complainant and no extra amount has been charged against her. There arises no question of the O.P.s being unjustly enriched as alleged by the complainant. The complaint is vague, fictitious and frivolous in nature and should therefore be dismissed in limini with cost.
O.P. no. 5 has also filed W/V wherein it is mainly contended that it is a pathological centre and O.P. 2 was provided a chamber on rental basis for consultancy with the patient. It has no involvement with the treatment of complainant in any manner and therefore the case should be dismissed in limini against it.
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 by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Evidence on affidavit is led by the complainant and the same is kept in record. Similarly, affidavit – evidence is filed by O.P. nos. 1 to 4 jointly and also by O.P. no. 5. Questionnaires, replies and BNAs filed by the parties are kept in record after consideration.
DECISION WITH REASONS
Point no. 1 :
Already heard the submissions canvassed on behalf of the parties. Perused the petition of complaint, W/V, evidence on record and other materials also kept in record. Considered all these.
Ld. Lawyer appearing for the complainant has contended that the O.P.s have not taken proper care of the complainant during her surgery in the hospital. His another allegation against the O.P. hospital and the doctors is that they have taken much more money from the complainant over and above the price of package contract. According to him, last operation was conducted on the complainant by the O.P. doctors on 16.01.2013 and the O.P. hospital entered into a package contract with the complainant to the effect that the complainant would pay Rs. 1,02,000/- to the hospital for her operation. The complainant was lulled into the believing by O.P. 1 hospital and the O.P. doctors that she would not be required to pay any additional amount to the hospital for the said operation. But, having violated the terms of the contract, the hospital received Rs. 6,90,000/- from the complainant including the package amount i.e. Rs. 1,02,000/-. It is therefore contended on behalf of the complainant that the O.P.s have indulged in plundering money unnecessarily from the complainant and thus have made themselves guilty of medical negligence as well as deficiency in service.
From the submission of the complainant as noted hereinabove, it is clear that there are 2 allegations brought against the O.P.s. One allegation is that the O.P.s have recovered more amount from the complainant than what was agreed between the parties in their package deal. Another allegation of the complainant is that there is medical negligence on the part of the O.P.s, as the O.P.s have not taken proper care of her during her surgical operation and have not informed anything to her about the steps taken by the O.P.s. Let us see now how far these allegations stand substantiated against the O.P.s.
We know very well that the doctors should inform the patient of the steps sought to be taken by them in connection with treatment and surgery of the patient. The doctors should seek and secure the consent of the patient before treatment / surgery and such consent must be “Informed consent”, based on adequate information. Mere taking of consent or mere procuring the signature of the patient on consent form is “no consent” in the eye of law. There has been catena of decisions of Hon’ble Apex Court as well as Hon’ble Apex Consumer Commission to the effect that the patient has a right to be informed about the step sought to be taken by the doctor. It is incumbent upon the doctor to inform the patient what type of surgery is planned by him and what are risks involved with that kind of surgery or the treatment. If nothing about all these is informed to the patient, the patient cannot give a real and valid consent and in that case any kind of surgery performed upon the body of the patient by the doctors is nothing but an unauthorized invasion on the body of the patient. Coming to the facts of the instant case, it is found that the O.P. hospital has filed a heap of medical papers ranging from page no. 1 to page no. 706 in 3 volumes as their evidence on record. No list of documents has been annexed to these volumes of medical papers. Still, straining our nerves to the best of our ability, it has not been possible for us to find out in the vast panorama of the medical papers a single paper which will go to prove that “informed consent” was taken from the complainant by the O.P. doctors before performance of any kind of surgery upon her. Surgery was admittedly performed upon the complainant on 16.01.2013 and 12.12.2012. On 16.01.2013, O.P. 4 performed operation and on 12.12.2012, O.P. 3 performed hysterectomy etc. We do find some consent papers present within the documents filed on behalf of the O.P. hospital. 3 consent forms dated 01.02.2013, 15.01.2013 and another also dated 15.01.2013, vide running page nos. 379, 380 and 381 of medical papers are found annexed to the medical papers of vol-II filed on behalf of the O.P. hospital and the O.P. doctors. These consent papers are related to treatment / surgery dated 16.01.2013 of the complainant. Nowhere in these consent papers is mentioned anything about what kind of surgery was planned to be performed upon the complainant. Nothing is stated anywhere in these consent forms as to the risk involved with the surgical operation planned to be performed upon the complainant. Nothing is stated in these consent forms about removal of intestine obstruction and appendectomy. Similarly, no consent form is found for operation dated 12.12.2012 by O.P. 3. The hospital authority has kept the complainant in complete darkness, having not allowed the complainant / her relative to know anything about treatment / surgery proposed to be done upon her by the O.P. doctors. The complainant has palpably been denied her right to be informed about surgery to which she was subjected by the O.P. doctors on 16.01.2013. It is now crystal clear that the O.P. doctors do not care to follow the direction of law. So careless and negligent they are! We cannot imagine what more a patient can expect from these persons, when they have not a least regard to follow the law of the land. Carelessness and negligence on the part of the O.P. doctors i.e. O.P. nos. 2 to 4 have been personified on record in so far as “Informed consent” of the patient is concerned. The said doctors have conducted the surgery upon the patient i.e. the complainant on 16.01.2013 without taking any consent either from her or from any relative of her and such lackadaisical approach of the doctors in the matter of treatment / surgery is glaring example of medical negligence on their part.
It has been contended on behalf of the complainant that complainant has been made pay unnecessarily by the O.P. hospital and its doctors in order to extract money for becoming unjustly enriched. Ld. Lawyer appearing for the contesting O.P.s has contended that no unnecessary expense has been imposed upon the complainant. On perusal of the record, it is found that the complainant was first admitted to O.P. hospital on 03.12.2012 and she stayed in the hospital up to 07.12.2012. She was admitted in the hospital that day i.e. 03.12.2012 under care and guidance of O.P. no. 2. Prior to her admission on 03.12.2012, she was also treated by O.P. no. 2 on 27.11.2012 in O.P. 5 clinic. O.P. 2 advised some lab-tests and asked the complainant to meet him on 30.11.2012 with result of all tests including CT Scan. On 30.11.2012 the complainant met him at the clinic and he i.e. O.P. no. 2 advised her to be admitted to O.P. no. 1 hospital. On 03.12.2012, complainant was admitted to the said hospital with intense abdominal pain. There, O.P. 2 again compelled her to undergo the same tests which were done 3 or 4 days before. On 07.12.2012 complainant was discharged with advice to meet O.P. no. 2 at the clinic (O.P. – 5) on 10.12.2012. Our question is why the complainant was compelled to undergo same test again in O.P. 1 hospital, which tests were done by her on the advice of O.P. no. 2 only 3 or 4 days before her admission to the hospital. There is no explanation much less any plausible explanation in this regard coming forth from the side of O.P. no. 2. This is one instance and there is also another instance which go unexplained by the O.P.s.
Complainant was admitted lastly to the O.P. hospital on 11.01.2013 and surgery was conducted upon her by the O.P. doctors on 16.01.2013. It is the case of the complainant that she was admitted to the hospital this time on a “Package contract” of Rs. 1,02,000/-, but the O.P. hospital has taken much more from her in violation of the said contract. It is submitted on behalf of the hospital and its doctors that the said package contract was only for 4 days i.e. from 16.01.2013 to 19.01.2013 and the complainant had to pay extra amount for her stay and treatment from 20.01.2013 to 31.01.2013. The expense escalated, goes the submissions on behalf of the said O.P.s, due to expenditure made for the complainant during the period from 20.01.2013 to 31.01.2013.
A final bill dated 05.02.2013 is filed on record by the O.P. hospital, vide running page nos. 29 to 32, vol-I. From this final bill, it is found that the complainant was admitted this time to the hospital on 11.01.2013 and discharged from hospital on 05.02.2013. It is averred by the said O.P.s that the patient’s condition deteriorated after operation on 16.01.2013 and therefore she had to stay more days over and above the package days i.e. from 20.01.2013 to 31.01.2013 and therefore the extra payment was required to be made by the complainant. The relevant portion of the averment of the O.P.s, as it goes at page no. 11 of their W/V, is reproduced as hereunder.
“The package of surgery in the instant case was for a defined period / specified days i.e. from 16.01.2013 to 19.01.2013 for a sum of Rs. 1,02,000/- which does not cover the preceding period of observation of the patient. However, the patient health’s condition deteriorated and the patient was required to stay for more days over and above the package days i.e. from 20.01.2013 to 31.01.2013 for which the patient was charged extra and the complainant’s treatment cost escalated.”
The complainant had to over-stay from 20.01.2013 to 31.01.2013 immediately after her operation on 16.01.2013 and therefore the treatment cost of the complainant escalated. But the final bill establishes that the patient was discharged from the hospital on 05.02.2013. It further stands established from the final bill that the complainant had to stay in the hospital from 01.02.2013 to 05.02.2013 and the O.P.s cannot deny it. Our question is why the complainant was kept confined to the hospital for 5 days more i.e. from 01.02.2013 to 05.02.2013. In the face of the averment of the O.P. hospital as pointed out above, it stands established ipso facto that the stay of the complainant in the hospital from 01.02.2013 to 05.02.2013 was unnecessary. Was such stay of the complainant for the purpose of extracting money from the complainant? The O.P. hospital has not been able to give any explanation as to why the complainant was kept confined to the hospital for aforesaid period. In absence of any explanation of the hospital in this regard, we feel no manner of hesitation to say that such confinement of the complainant to the hospital for the aforesaid period was for nothing but for escalating the bill of the complainant to the profit of the hospital. This is unfair trade practice on the part of the hospital i.e. O.P. 1. We have also already mentioned that O.P. 2 compelled the complainant to undergo same lab tests which the complainant did at the instance of O.P. 2 only 3 or 4 days before her admission to the hospital. All these are unfair trade practice on the part of the hospital i.e. O.P. 1 in cahoots with its doctors.
Now about the package contract agreed between the parties as regards surgery of the complainant on 16.01.2013. It is undisputed fact that a package deal of Rs. 1,02,000/- was struck by the hospital with the complainant for her operation on 16.01.2013. The complainant alleges that more amount than the package amount has been taken from her by the hospital. The version of the hospital is that the condition of the complainant deteriorated immediately after the operation and therefore she had to stay in the hospital from 20.01.2013 to 31.01.2013 in addition to the package period which lasted from 16.01.2013 to 19.01.2013 only. “Package contract” is a contract made between the parties and such contract is to be honored by both the parties. It is averred by the O.P.s that the package deal was only for 4 days i.e. 16.01.2013 to 19.01.2013. O.P. hospital has not been able to draw our notice to any document from which it will be clearly established that the package deal was restricted to 4 days only. In absence of such evidence, we would say and say only that the package contract for a particular treatment / surgery must always include the pre and post care treatment of the said treatment / surgery. The O.P. hospital cannot lawfully recover more amount of money from the complainant when it has struck a package deal with the complainant for the particular operation dated 16.01.2013. According to the O.P. hospital, the condition of the complainant went deteriorated after the operation and therefore she had to stay for some more days in the hospital. Who is responsible for such deterioration of health of the complainant? It is the hospital which is responsible for such condition of the health of the complainant and it is the hospital which is required to look after the health of the complainant as it is post care step. The post care treatment is always included in the package deal and the hospital authority cannot recover more money from the patient in excess of the package amount. To recover more money from the patient over and above the contractual deal is also an instance of unfair trade practice on the part of the hospital and for this unfair trade practice, the complainant has certainly suffered a lot physically, mentally and financially. The O.P. hospital will have to compensate the loss suffered by the complainant.
We know very well that negligence consists in 3 things -duty, breach of duty and resulting damage. Every doctor and hospital owes a duty to take care to the patient. It is undisputed fact that surgery was performed upon the complainant in O.P. 1 hospital on 16.01.2013 by O.P. no. 4. The discharge summary of the patient is filed on record, vide page no. 45 and 46, vol-I of the documents of the O.P.s. O.P. no. 4 made the final diagnosis and the case of the complainant was diagnosed as one, “sub-acute small intestinal obstruction”. The duty of O.P. no. 4 is removal of the aforesaid intestinal obstruction of the complainant and if he does any other kind of removal of the organ of the complainant, it is certainly beyond the scope of his duty. On perusal of discharge summary of the patient, it is found that the appendix of the complainant has also been removed by O.P. no. 4. The relevant noting of discharge summary goes thus:
“Operation: Laparatomy and division of intestinal band with adhesiolysis and Appendectomy was performed on 16th Jan, 2013 (detailed operation note attached).”
Treatment sheets dated 15.01.2013 and 16.01.2013 are also annexed in the documents of the O.P.s, vide page nos. 58, 59 and 60, vol-I. Browsing these documents, it is nowhere available therein that the complainant had any complaint of appendicitis at any point of time. Had there been any such problem of the complainant, it would have been mentioned in the treatment sheets. In absence of such reference in treatment sheets as noted above, we do hold that the complainant was never suffering from appendicitis. But, it is found established on record that appendix of the complainant has been removed by O.P. no. 4. O.P. no. 4 should not have removed this healthy organ of the complainant. In the instant case, O.P. 4 should always keep it in mind, as a part of his duty, that the patient is not a scape-goat and the hospital / nursing home is not his butchery. He cannot do whatever he likes with his patient in the seraglio of operation theatre without consent of the patient except in case of emergency. He has done what he should not have done and here lies the breach of his duty to the patient. He has not informed anything about such removal to the patient before removal of her organ. So, upon established facts and materials on record, it is found that there has been beach of duty also by O.P. no. 4. When a healthy organ of a patient is removed without his/her consent, the patient is sure to suffer damage. The complainant is still reeling under the load of various ailments. All the ingredients of negligence are thus seen to have been fulfilled and therefore the O.P. doctor, i.e. O.P. no. 4 including the O.P. hospital is held guilty of medical negligence for breach of duty in taking care towards the complainant.
Complainant was 37 years old on 12.12.2012 when her fallopian tubes and ovaries were removed by O.P. 3. Menopause was still a long way away to claw her in its clutches. There was no tumor in her uterus, as wrongly diagnosed by O.P. 2. The vaginal bleeding for which “AH-BSO” was done by O.P. 3 was due to dysfunction of uterus and it is so mentioned in evidence of the O.P.s. The relevant portion reads as follows :
“The patient underwent adhesiolysis as extensive adhesion was present in the lower abdomen followed by Abdominal hysterectomy and Bilateral Salpingo Oophorectomy (BSO). No tumor was found as will be evident from the operation note and the histology report. The indication of the operation was dysfunctional uterine bleeding.”
Dysfunction of an organ cannot be controlled by removing the organ and the proper course is to restore the function to normal way by medication therapy. To remove an organ in such case is only indication of the fact that proper treatment has not been done to the complainant. There is no justification of removal of fallopian tubes and ovaries of complainant in that age of her and such act of O.P. 3 has certainly damaged the fecundity of the complainant to her utter loss.
It has been contended on behalf of the O.P.s that the allegation of medical negligence cannot be established in absence of expert opinion. It is true that no expert opinion has been placed on record by the complainant. An expert opinion is not always mandatory and the consumer forum can, based on the facts and circumstances of each case and evidence placed on record, adjudicate the matter and need not necessarily refer to an Expert. [Parag Girish Chandra vs Dr. Ashokbhai, 2019 (2) CRP 806 (NC), Para-10]. In the instant case, medical negligence of the doctors of O.P. 1 stands established on facts and circumstances placed on record.
`From the discussion as made hereinbefore, it is found that the O.P. hospital and its doctors i.e. O.P. 2 to 4 have not taken informed consent of the patient while performing operation on her and thus they have flouted the legal guidance on the subject. It has also been established on record that the O.P. hospital in cahoots with its doctors i.e. O.P. nos. 2 to 4 have kept the complainant detained in the hospital unnecessarily with a view to squeezing more money from the complainant in order to satisfy their greed for money. Not only this. The O.P. hospital has also squeezed more money i.e. Rs. 5,50,330/- from the complainant over and above the package amount of Rs. 1,02,000/-. This is nothing but unfair trade practice on the part of the hospital authority and the hospital has been able to congeal this practice in connivance with its doctors i.e. O.P. nos. 2 to 4. This O.P.s will have to refund Rs. 5,50,330/- which has been recovered by them from the complainant over and above the package amount, to the complainant. They will have also to pay compensation to the complainant for harassment and mental agony suffered by the complainant owing to unfair trade practice and medical negligence. Removal of the appendix of the complainant without her consent is an unauthorized invasion on her body and as such all these are nothing but deficiency in service on the part of O.P. nos. 1 to 4. There is no cause of action arising against O.P. no. 5 and therefore the case deserves dismissal against O.P. no. 5.
In the result, the case succeeds.
Hence,
ORDERED
That the complainant case be and the same is decreed on contest against O.P. nos. 1 to 4 with a cost of Rs. 10,000/- against them. The case stands dismissed also on contest against O.P. no. 5 but without any cost.
The O.P.s i.e. O.P. nos. 1 to 4 who will remain jointly and severally liable for payment to the complainant, are directed to pay back Rs. 5,50,330/- to the complainant and also to pay a sum of Rs. 5,00,000/- to the complainant as compensation for harassment, mental agony, unlawful trade practice and medical negligence of the O.P.s, within a month of this order failing which the aforesaid amounts of compensation, refund and litigation cost will bear interest at the rate of 10 % p.a. till full realization thereof.
Register-in-charge is directed to supply a copy of this judgment at once free of cost to the parties concerned.
I/We agree Member President
Directed and corrected by me
President
