JUDGEMENT

          Complainant by filing this complaint has submitted that complainant is an employee under Govt. of West Bengal and his wife Smt Sarmistha Mukherjee suffered from abdominal pain and as per advice of the doctor USG of whole abdomen was done from Mediquest Referral Path Lab Radio imagine at Naihati, Dist- North 24 Parganas and the report was received on 17.03.2010 where the report revealed that the wife of complainant had Calculus cholecystitis which was made by Dr. Pue Saha Sarkar MBBS, DGO Consultant Sinologist.

          Thereafter Dr. R.K. Sarkar of ECO Hospital and Diagnostics Pvt. Ltd. advised the complainant for further tests of blood, Bio Chemistry, Hormone Assay etc. of his wife and by that tests it was found that someother problems like thyroid of the wife of the complainant and accordingly Dr. R.K. Sarkar admitted the patient Smt Sarmistha Mukherjee at ECO Hospital and Diagnostics Pvt. Ltd. on 17.03.2010 and was discharged on 21.03.2010 withholding the proposed operation due to altered IFT and Thyroid and also advised to visit after 7 days with L.F.T. report.

          But after getting discharge from ECO Hospital and Diagnostics Pvt. Ltd. complainant took his wife to Apollo Gleaneagles Hospital op no.1 on 21.03.2010 wherein she was examined by Dr. Purnendu Roy op no.2 who is known as best surgeon in West Bengal.  So, op no.2 advised the complainant to admit his wife on 21.03.2010 for operation in op no.1’s hospital without taking any pathological test USG, MRCP etc. because they were relying upon the reports of previous ECO Hospital and Diagnostics Pvt. Ltd. and without making any comments on the discharge certificate and prescribed medicines, op no.2 deliberately took the decision for operation of Laparoscopic Cholesystectomy.  So in this regard it is needless to say that op no.2 should be more cautious for performing the said operation but op no.2 did not take proper step and precautions in treating the wife of the complainant.

          However on 25.03.2010 after operation held on 23.03.2010 on the patient Sharmistha Mukherjee since deceased was discharged and complainant took his wife to his residence with discharge certificate where it was mentioned that the patient was stable.  But at the time of discharge the patient was suffering from fever.  So, op nos. 1 & 2 made a wrong to discharge of the patient with such condition and it is clear that both op nos. 1 & 2 were careless in treating the patient of the complainant.

          But after discharge wife of complainant was staying in the residence of the complainant following the advice of the op no.2 and taking medicines as per instruction, the wife of the complainant within a week felt further pain in her abdomen which was unbearable to her wife.  So, complainant took his wife to op no.2 within a week on seeing the complainant’s wife, op no.2 further advised to admit the complainant’s wife in Apollo Gleneagles Hospital without any further delay for investigation and treatment and complainant then and there admitted his wife in the op no.1 Hospital on 04.04.2010 under the op No.2 and this is the first time MRCP was done after second time admission and it was reported that there were stones in common bile duct and then op no.2 advised for ERCP for extraction of stone from CBD and the patient was referred to Dr. Mahesh K. Goenka op no.3 and op no.3 carried out ERCP process on 06.04.2010 and it requires to be mentioned that before ERCP op no.3 suggested various investigations and accordingly the same was done on 05.04.2010 and from the investigation reports it was found that liver enzymes were raised by amylases and lipase were normal, WBC count was also within normal limit.  In the process of ERCP as done on 06.04.2010 which reveals (Signal filing defect in CBD) sphinctcrotomy done, CBD cleared with ballon Single stone extracted, no complication noted Pancreas done, not cannulated as per note in the treatment record.  Further it is submitted by the complainant that even after such report, op no.3 admitted that after ERCP that patient might have sustained mild injury in the Pancreas during ERCP process though the Pancreatic Duct was not cannulated as mentioned in the printed report done on 05.04.2010 and as such op no.3 who according to op no.1 Hospital as Director and Chief Institute of Gastroenterology having huge degrees was also negligent and deficient in treating the wife of the unfortunate complainant and both the op no.2 and op no.3 doctors failed to take due care and to treat the patient with skill and both of them are guilty of violation of professional ethics and as such both the doctors mishandled the patient and for their negligent and deficient act, the wife of the complainant ultimately died on 07.05.2010 with multiorgan failure as a consequence of acute pancreatitis leaving two minor daughters in the custody of this unfortunate complainant and practically for the negligent and deficient manner of service of the ops in case of Gallbladder stone the doctor concern has to see that whether the patient was suffering from Jaundice or whether there was an flow of fluid from liver or not and even the doctor has to see clinically as whether there was any stone in Gallbladder but op no.1 did nothing and practically they did not properly diagnose the patient and did not accept proper procedure for her treatment and during her last stage of life complainant’s wife made written endorsement that “Daktar Amake Dekheni, phele diye chale gechhe”.

          Fact remains the op no.1 the Hospital Authority in a simple case of operation of gallbladder stone raised a bill of Rs. 9,70,302.88 paisa for medicine and investigation charges of the bill to the tune of Rs.1,28,414.03 paisa and if such billing is correct, in that case those two items had clearly proved that due to negligent and negligent and deficient operation and treatment rendered by the ops made a simple case of operation of gall bladder stone complicated the matter and for their laches and deficient manner of treatment of his wife died. 

          For the above situation, complainant has prayed for redressal and for negligent and deficient manner of service rendered by the op.

          On the other hand op no.3 by filing written statement submitted that the entire complaint is false and fabricated.  It is specifically mentioned that since the patient had severe pain with fever and jaundice, ERCP and stone extraction was rightly performed ERCP was done by the op no.3 who has performed more than 10000 such procedures and were awarded various national medals for his expertise hand prior to such ERCP.  Moreover all proper precautions were taken and pancreatic duct not even entered and the procedure was successful and stone was removed and there was some evidence of pre-existing pancreatitis in form of absent bowel sound and edematous papilla though amylase and lipase were normal and patient developed full blown pancreatitis which though responded initially but developed all complications later on and patient was managed with internationally accepted guidelines, multiple opinions were taken, tele-conferencing was also done and patient was managed by antibiotics, ventilation, dialysis, tracheostomy etc. but died about a month later.  So far the allegations made in the said complaint is completely false and rather denied by the op and the allegations of the complainant that after ERCP patient might have sustained mild injury in the pancreas during the ERCP process or has failed to take due care or treated the patient without skill or mishandled the patient are completely false and there is no ground for any negligence or deficiency in providing proper treatment as alleged by the complainant.

          It is further submitted that the ERCP report so provided to the complainant would clarify the actual state of affairs.  It is indeed unfortunate that complainant unnecessarily castigated the ops in the said paragraph under reply without making any whisper as to which action of the op no.3 was not as per settled medical practice and procedure and what was done should not have been done and what was not done should have been done and as per medical expert opinion complainant has failed to substantiate his claim by producing any medical literate or authoritative medical text or expert medical opinion in this matter.

          On the other hand op has submitted that in the meantime on the basis of complaint, a complain was lodged by the complainant against the op the Health Director, Govt. of West Bengal and upon hearing and going through all medical and allied papers in connection thereof found that op no.1 and op no.3 are not at all guilty of deficiency in service and accordingly op no.3 has submitted that no doubt it is always painful in respect of post medical treatment when the same has taken away inspite of best possible medical treatment when the same has taken away the life of near dear one it provides a shock but op also took all proper step.  But in the present case doctor cannot provide a guarantee he or she will make the patient fit after illness.  But fact remains op tried her everything on his part for treatment but unfortunately for the existence history of pancreatitis and other she died and in the above circumstances compliant should be dismissed.

          On the other hand op no.2 doctor Purnendu Roy by filing writing statement submitted that op no.2 performed Laparoscopic Cholecystectomy probably known as Lap Choli which is done with the help of scientific and advanced surgical machineries and op no.2 as a specialist doctor did Lap Coli which is with the help of a medical device known as laparoscope which is done with the help of a wire guided camera and the same is inserted through the abdomen by making four holes in the abdominal area and stones are removed with cameral surgical and on the removal of the gall bladder a clipping is done in the place where the gall bladder was connecting to the bile duct and fact remains the patient was reviewed by the op no.2 on 20.03.2010 at op no.1’s outpatient department and when the complainant approached the op no.2 with the medical document and test reports for obtaining expert opinion.  On review of the papers it appears that the said patient had already underwent ultrasonogrphy at Mediquest Referral Path Lab and the necessary blood test at Barasat Eco Hospital & Diagnostics and as all the test reports indicated multiple granular stone impacted at neck of the gall bladder, the present op had advised the complainant for transferring the patient to Apollo Hospital for performing the Lap Choli and the test reports have already been disclosed by the complainant before the Ld. Forum and the advice for getting admission in op no.1 is with the complainant and complainant is directed to produce the original advise along with the above referred original test reports before the Forum.  As a standard practice the patient was advised for hospitalization for another two days considering the condition of the patient.  The post operative recovery was normal and as such the patient was discharged in stable condition on 25.03.2010 and the discharge certificate was also produced wherein the medicines to be taken and the general care to be adopted was also advised for come and for check-up for which the patient was requested to come back at op no.1 after 10 days.  On 04.04.2010 after 12 days from the surgery on admission USG was done and the reports indicated that the liver enzymes were raised but amylase and lipase were normal which confirm the fact that the patient was not suffering from pancreatitis.  Subsequent treatment to the patient without performing to the above but strongly denied on the same and op no.2 submitted that the USG brought by the patient showed stone impact at the neck which may cause mild rise of billirubin and liver enzymes and such patient can be operated and such was the judgement exercised by the op.  So Lap Choli was done without conducting appropriate tests and it is stated that all necessary tests reports were already done and as such after reviewing the same decision was taken for the surgery.  It is reported that the USG and blood test was done before the surgery and the test reports were considered by the op no.2.  It is true that MRCP was not done before the surgery as in general MRCP is not required for detecting stone in gall bladder.  It is further stated that for conducting surgery a test was done before 6 days is acceptable in all means and patient had taken medicines as per advise of a registered medical practitioner who had considered the test reports.  So, tests were not required to be done and Lap Choli is sufficient for determining whether stone is present in gall bladder and some routine blood test was also done and such decision for conducting the lap choli is not an act which was wrong or taken hastily.  Further the post operative care was best available in India as the op no.1 is a well reputed hospital.  There was several facilities and post operative care and treatment is well codified in the BHT of the patient which op no.2 will rely at the time of hearing and fact remains no wrong discharge certificate was ever issued.

          In such condition if the patient was not good after discharge, complainant ought to have forthwith came back to the hospital within 1 or 2 days but complainant did not report any such complaint after discharge within 1 or 2 days and there was no negligence and deficiency on the part of the op no.2 and all other matters shall be reflected on the medical reports.

          Op no.1 separately by filing written statement submitted that the present complaint is completely false and in view of the fact that there was no deficiency on the part of the op no.1.  Fact remains that op nos. 2 & 3 with their skill and knowledge properly treated as per confirmed procedure for such patient and all sort of medical treatment was done giving best facilities and modern medical science method and patient was not wrongly discharged from op no.1.  But op no.2 & 3 properly considered and thereafter they did all proper treatment and moreover the Director of Health Govt. of W.B. formed a expert committee and upon hearing it is found that op no.1 and op no.3 are not at all guilty in deficiency in service as alleged by the complainant.

          Practically there is no scope to reopen the matter and to re-agitate the same before this Forum when expert committee has opined the same.  Further it is submitted that knowing well about the rates and cost of treatment in op no.1’s hospital complainant appeared in the said hospital.  So considering his treatment the bill which was raised it is correct and there was no excessive bill in this regard.  So the entire allegation against the op no.1 is false and this case should be dismissed.

                                                   Decision with resons

          In this case after considering the complaint and the written version, it is found that it is a very complicated question of medical science regarding the treatment and also diagnosis done prior to treatment by the doctor and moot question is whether there was negligence and deficiency on the part of the doctors, op nos. 2 & 3 when complainant’s wife Sharmistha Mukherjee was admitted in the hospital on op no.1 for treatment under op no.2.  No doubt it is fact that op no.2 primarily relied upon the tests report done by the complainant for his wife and thereafter proper investigation came to a conclusion for a lap coli of the patient and fact remains that as per his advice of his previous doctor of ECO Hospital, his wife was admitted to op no.1’s hospital on 21.03.2010 as per advice of op no.2 for admission and op no.2 performed lap coli on 23.03.2010 under general anaesthesia and after that the doctor discharged her on 25.03.3010 stating that in the discharge certificate the condition of the patient was stable.

          Thereafter lapse of some days complainant’s wife again felt abdominal pain which was intolerable.  So complainant went to op no.2 along with his wife who after checking advised her to admit here in the hospital of op no.1 and accordingly complainant admitted her wife on 04.04.2010 under op no.2 and first time MRCP was done and at that time it was reported that there was stone in the common bile duct and then op advised for ERCP for extraction of stone from CBD and patient was referred to Mahesh K. Goenka op no.3.  Truth is that op no.3 carried out ERCP process on 06.04.2010 and op no.3 suggested further investigation and same was done on 05.04.2010 and from the investigation report it was revealed that liver enzymes were raised by amylases and lipase were normal, WBC count was also within normal limit.  In the process of ERCP as done on 06.04.2010 which reveals (Signal filing defect in CBD) sphinctcrotomy done, CBD cleared with ballon Single stone extracted, no complication noted Pancreas done, not cannulated as per note in the treatment record.  Further it is submitted by the complainant that even after such report, op no.3 admitted that after ERCP that patient might have sustained mild injury in the Pancreas during ERCP process through the Pancreatic Duct was not cannulated as mentioned in the printed report done on 05.04.2010 and as such op no.3 who according to op no.1 Hospital as Director and Chief Institute of Gastroenterology having huge degrees was also negligent and deficient in treating the wife of the unfortunate complainant.

          After hearing the argument of the complainant himself including the argument as advanced by the Ld. Lawyers for the ops and also on overall evaluation of the entire materials and evidence and documents it is found that allegations of the complainant is against op no.2 and in respect of fact that but complainant has tried to show that op nos. 2 & 3 failed to take due care and to same the patient and so both of them are guilty and for their negligent and deficient manner of service.  Practically complainant has tried to convince this Forum that in case of Gall bladder stone MRCP must be done prior to operation but that had not been done by the op, but the operation was done and for which the entire process of admission of the patient was not as per normal norms of operation of cholecystectomy and if MRCP would be done prior to first operation in that case the total diagnosis shall be more clear before the doctor and in that case if operation would be done, the life of the wife of complainant would be saved but that was not followed.

          Further complainant has made allegations against op no.3 on the ground that at the time of processing ERCP, op no.3 caused some mild injuries in the Pancreatitis during ERCP process through Pancreas Duct shall be cannulated though it is noted in the report but practically the Pancreatitis was operated by op no.3 for which the wife of the complainant ultimately died for wrong treatment and surgery.  In this context it is to be mentioned that Ld. Lawyers of the ops submitted that complainant himself submitted allegations before the Director, Medical Education Swasthya Bhawan, Salt Lake against those doctors and accordingly the Govt. of W.B. directed the Medical Education to form an expert committee to enquire about the complaint as allege by the present complainant regarding the death of complainant’s wife Late Sarmistha Mukherjee and complainant has submitted that final enquiry report submitted by the Director of Medical Education in the said expert committee of Dr. A. Chowdhury, Prof. of IPGME&R of SSKM Hospital, Kolkata, Dr. P.C. Chowdhury, the Director of IPGME&R, Kolkata and Prof. Dr. M.L. Saha, Department of Surgery, IPGME & R-SSKM Hospital, Kolkata were the experts and op’s Ld. Lawyer submitted that report is sufficient to show that there was no negligence or deficiency on the part of the doctors and complainant who was present before this Forum and argued also admitted that he also relies upon that report.   So considering the above fact we have minutely considered and assessed the report as submitted by the Director of Medical Education, Govt. of West Bengal, Swasthya Bhawan, Salt Lake City, Kolkata-91 dated 18.07.2012 which was communicated to the complainant by a Memo No. ME/RTI/12/N/2392 and from the said report it is clear that the said expert doctors particularly Dr. A. Chowdhury India famous doctor and Prof. of Hepatology Dr. Abhijit Chowdhury and Dr. M.L. Saha is also very renowned surgeon of India and Dr. P.C. Chakraborty is also very famous doctor who were in the said committee. 

          So, considering the said report it is clear that Dr. P.C. Roy neither examined before admission at his chamber nor after admission in the hospital on 21.03.2010 and the said committee also came to a conclusion that there is no record that P.C. Roy had gone through all the reports done at Barasat ECO Hospital & Diagnostic and it is specifically mentioned by the expert doctors of the said clinical committee that the said patient had jaundice before admission and operation by the Dr. P.C. Roy and truth is that prior to admission to the op no1’s hospital under Dr. P.C. Roy complainant was examined by another doctor at Barasat as her family physician Dr. R.K. Sarkar of ECO Hospital & Diagnostic Medical Pvt. Ltd. who detected that patient had jaundice and for which the said doctor advised the patient in view of the present jaundice and that doctor referred the patient to Modern Medical Hospital for treatment.  So, considering that report of the expert, it is clear that the patient Sarmistha Mukherjee had been suffering from jaundice for which Dr. R.K. Sarkar of ECO Hospital & Diagnostic Medical Pvt. Ltd. postponed the operation in view of the presence of jaundice that is before admission of his wife to op no.1 under Dr. P.C. Roy.

          But truth is that Dr. P.C. Roy overlooked that note of Dr. R.K. Sarkar and in the opinion of the enquiry committee of doctors if Dr. P.C. Roy would have looked through the note of Dr. R.K. Sarkar in that case it was imperative to do pre-operative CBD which is scientific in such clinical situation and as per opinion of the expert of doctors it also appears that the patient developed a post operative even related to the same CBD stone which was not diagnosed and same was not removed in proper time (before surgery).  Though there was clinical and bio-clinical examination and truth is that it was present at that point of time and accordingly the said expert doctors came to a conclusion that doctors should have been taken more intricate assessment and care prior to operation but that has not been done.  If we take this expert opinion including the documents as filed by the complainant, we are convinced to hold that Dr. P.C. Roy ought to have taken some positive steps before operation and in the opinion of the said doctors of the enquiry committee came to a conclusion that Dr. Roy overlooked the note of Dr. R.K. Sarkar who refused to operate initially on the ground of presence of jaundice and fact remains that jaundice was not the after effect of first operation.  But before the first operation of her by Dr. P.C. Roy patient suffers from jaundice and apparently as per medical science if any patient is suffering from jaundice no operation must be done in respect of such patient.  But further intricate assessment should have been taken and there was no such note of Dr. P.C. Roy that the patient condition was serious for which he forthwith applied for Lap Choli.  Further considering the expert report including the medical report it is clear that Dr. Roy before operation did not follow all reports as submitted by the complainant which was issued by the Dr. R.K. Sarkar of ECO Hospital.

          Truth is that Dr. R.K. Sarkar postponed operation in view of presence of jaundice.  This opinion of doctor Sarkar was overlooked by Dr. Roy.  Moreover in the prescription or in the discharge certificate issued by P.C. Roy there is no note that she was suffering from jaundice that means Dr. P.C. Roy did not properly investigate further about position of the patient regarding jaundice and truth is that Dr. P.C. Roy no where has noted that her jaundice had been diagnosed and it was found that her jaundice had been corrected and thereafter such decision for such Gallbladder stone operation was taken.

          Anyhow after considering the entire materials and also considering the expert report of Dr. A. Chowdhury, Dr. M.L. Saha & Dr. P.C. Chowdhury of the Medical Health Education under Govt. of W.B. we are convinced to hold that Dr. P. Roy scientifically did not properly assess the clinical situation of the patient before operation and no test was done by the op no.2.

          Another factor is that the patient was discharged within two days from the date of operation noting in the discharge summary that she was in stable condition.  No such further report was taken whether any part of the stone was in the gall bladder even after operation or not.  But it is peculiar that when second time the patient was admitted op no.2 advised for further CBD as stone was found, that means op no.2 Dr. P. Roy did not properly diagnose the position of the patient after operation and before that and practically the said stone was not removed in proper time.  Though there were clinical bio-medical clue of its patient prior to operation and after operation.

          So, considering that fact it is clear that no proper diagnosis was done by the Dr. P. Roy op no.2 even after existence of previous report of another surgeon Dr. R.K. Sarkar about presence of jaundice of the said patient. But anyhow Dr. P. Roy did not consider the previous medical reports and also did not further diagnose the matter after her admission in the present op’s hospital which is no doubt a negligent manner of act on the part of op no.2.  In this respect we have gone through certain medical authoritative books of Gall Stone and Billary Track Disease wherefrom we have gathered that Endoscopic Retrograde Cholangiopancreatography (ERCP) should be done for proper identification of Gall Stone and confirmation of the number of stones and as per those authors by USG many times stones are not reflected. 

So, considering that fact and authoritative books, it is clear that in the present case Dr. P. Roy did not adopt scientific procedure ERCP for determining the presence of number of Gall Stones inside the Gall Bladder and other factors and practically for that reason after operation when the patient was released by Dr. P. Roy she again suffered from abdominal pain and on second occasion also stones were removed by another doctor.

After studying the said authoritative books and author’s version, it is found that the major complication of acute cholecystitis are related to several inflammation and necrosis of Gall bladder tissue and the patient suffering from jaundice with acute cholecystitis  is no doubt a complication for surgery and in such a case without curing the patient from jaundice operation should not be done and in the present case it is clear that the patient had been suffering from jaundice that was not diagnosed by the Dr. P. Roy and taking it as a simple case of gall bladder stone he operated and released without proper diagnosis even her existence of jaundice and as per those authors the test of ERCP is must for the patient suspected with jaundice or diabetes etc.

Further considering those books it is clear that if a patient with jundic is operated for removing gall bladder stone chance of mortality is increased.  So, in such a situation proper diagnosis is must and ERCP is also must.  But in this case the Dr. P. Roy did not apply this procedure for which wrongly Dr. P. Roy made such surgery by adopting Lap-choly and no doubt for adopting such procedure without proper diagnosis the patient’s condition was deteriorated and fact remains the patient was discharged by the Dr. P. Roy without further diagnosis after operation without post determining effect of the operation.

In this case no doubt op has adduced evidence of some other doctors namely P. Banerjee, Sankar Sil and Goutam Bhowmik to substantiate the fact of adopting the procedure of Dr. P. Roy as scientific procedure and there was no negligence.  But fact remains that those doctors were not at the time of operation and at the same time they did not consider that prior to operation Dr. P. Roy did not diagnosis and clinically tested position of the patient that the patient was suffering from jaundice and they also did not consider that Dr. R.K. Sarkar of Barasat refused to operate the patient on the ground that at the relevant time the patient was suffering from jaundice.

Another factor is that there is no such document produced by the ops that after admission of the patient in the op’s hospital all necessary diagnosis were made by the present Dr. P. Roy and from the discharge summary also it is found that Dr. P. Roy nowhere in the discharge summary mentioned that patient was suffering from jaundice prior to operation.  Further there is no such endorsement in the discharge summary that the said doctor took such a preventive measures for controlling jaundice prior to operation and pre operation stage there was no complication about jaundice etc.  But all the documents which were filed by the ops it is clear the after release of the patient on 25.03.2010 by the Dr. P. Roy and when she again felt suffering from abdominal pain and when she was again hospitalised then further radiological test and other tests were done when it was detected that she was suffering from pancreatitis etc for which ultimately she died on 07.05.2010 at 07:55 AM and she was admitted in the said hospital on 04.04.2010.  If we consider the subsequent papers as produced by the op, it is clear that the present Dr. P. Roy did not properly assess the test reports of the patient prior to operation and also did not consider previous medical test reports which were considered by Dr. R.K. Sarkar of Barasat who refused to operate considering the existence of jaundice and in this respect we have also considered the opinion of the expert doctors committee formed by Board of Medical Education, Govt. of West Bengal wherefrom it is clear that the said doctors also opined that Dr. P. Roy should have taken more intricate assessment and care prior to operation and it is confirmed that op no.2 did not take proper care before and after operation.

Further it is reflected from the report of the expert doctors, Dr. P. Roy did not go through the previous reports of the patient prepared at Barasat and ultimately prior to reporting to Dr. P. Roy the patient had jaundice and for which Dr. R.K. Sarkar of Barasat postponed the operation in view of the presence of jaundice and truth is that Dr. P. Roy overlooked the matter and if he would have noted that report in that case it was his imagination on the part of Dr. P. Roy to have done a pre-operative CBD evaluation.  But that was not done and it is also proved that Dr. P. Roy neither examined the patient before admission nor after admission at the hospital on 21.03.2010.  So considering all the above facts and materials we are convinced to hold that there was negligence and deficiency on the part of the present Dr. P. Roy.  Though he claimed that he is a very renowned doctor and no doubt he has a very good educational qualification having M.S., F.A.I.S., FRCS, D. Urol (London) FICS(U.S.A.) F.A.M.S. but anyhow such a doctor probably took this patient very casually thinking that it is a very simple operation.  But he did not think over the complication of the patient for which without considering the previous papers Dr. P. Roy performed Lap-choly. 

In fact in this case the doctor should have done ERCP when there is a case of jaundice and further it is proved that in fact in the present case as per authoritative books of medicine the present patient prior to operation is a patient with complications and that complication was not properly detected by the Dr. P. Roy and in fact as per medical science in such sort of complicated case or patient it was the duty of the doctor not to perform Lap-choly till curing from jaundice.  So, considering all the above fact and circumstances and also considering the process which are adopted by the doctor before or after operation is found completely uncalled for and in fact Dr. P. Roy did not perform, did not discharge his duty as an expert surgeon and also did not properly diagnose the present patient Sarmistha Mukherjee after admission and did not also consider further testing before discharge and for which his decision for performing operation was completely against the spirit of medical science particularly in respect of the present patient.

Further considering the entire materials and above findings including other documents it is clear that the present operation has caused severe complications in the system of the patient and practically she died due to negligent and deficient manner of treatment and diagnosis made by the Dr. P. Roy.  Fact remains if the patient had been properly diagnosed and ERCP had been done in that case the internal affairs of the system of the deceased would have been detected in that case invariably the present Dr. P. Roy ought not to have to perform such surgery in view of the critical position of the patient having existence of jaundice and other internal problem.

Further as per medical science it is found that at the time of any operation particularly gall bladder, liver, stomach, duodenum, pancreatitis, intestine and kidneys must be properly tested and diagnosed about its position and functions and should be satisfied about no complications about liver function, stomach function, kidneys function etc. but nothing has been done in this case before Lap-choly that is no doubt wrong decision of the Dr. P. Roy and fact remains the expert Board of Director and Medical Education have also confirmed that Dr. P. Roy did not properly assess and pre operative CBD evaluation ought to have been done but that had not been done.  So, considering all the above fact and materials and the conduct of Dr. P. Roy we are convinced to hold that there was gross negligence and deficiency on the part of Dr. P. Roy and practically the entire procedure as adopted in holding operation was unfortunate and against the principle of medical science and for which Dr. P. Roy is no doubt proved negligent when want of such care as required in a particular case is well proved against that doctor and in this case no doubt subjectively carelessness and objectively carelessness conduct of the doctor is proved beyond any manner of doubt.

Most interesting factor is that in this case op no.2 has claimed that he has operated more than 10000 operations in his life but anyhow such a doctor adopted a very careless procedure for which the patient Sarmistha Mukherjee ultimately died and practically in that situation it would be correct decision of such a renowned doctor not to operate but the further diagnosis was required to cure her jaundice and other diseases and moreover in the discharge report there is no such note that the situation was so critical that without operation there was no other alternative way.  But due to such situation of the patient there is no observation of the doctor in the report of discharge summary that there were complications and situation is beyond control for which he was compelled to perform such operation.  Then it is clear that doctor was very casual and in casual manner he performed such surgery because it is the duty of the doctor not to perform operation if any disorder complicated in nature is found by investigation in respect of liver, pancreatitis, kidneys, stomach, duodenum etc.  But it is true that without any diagnosis without any test suo moto after admission of the patient he performed operation and most interesting factor is that after operation no further test was done and she was released.  It indicates that in the present hospital the doctor is attached and this hospital is running practically a health trade business and they always try to admit the patient for operation so that they may earn more money.  But pre operative test, diagnosis and post operative diagnosis also business.  But most surprising factor is that in the present case only 3 days patient was in the Apollo Gleneagles Hospital on first occasion from 21.03.2010 to 25.03.2010 and on second occasion she was in the hospital from 04.04.2010 to 07.05.2010 and on 07.05.2010 she died and during that period op/hospital prepared a bill amounting to Rs. 13,00,000/- and complainant is a very poor Government employee that means op/hospital has no morality and social responsibility and truth is that the second admission was caused due to faulty treatment of the doctor op no.2 of the op/hospital.  Then it is clear that there is connivance in between the op/hospital and the doctor to perform operation after operation so that huge amount can be earned.  But moral and social responsibility to cure the patient is not within their ethics and profession.  There they are only earning money for which within 2 days after operation the patient is being discharged without any further post operative test to ascertain the position of the patient and this is common practice of all the nursing home or the hospitals where such sort of doctors are attached and in fact if those doctors are appointed by the Government to some other medical colleges and those doctors shall not go to the private hospital,  in that case the hospital shall have to ultimately to fly flees.  No doubt in this case the death of Sarmistha Mukherjee was caused due to negligent and deficient manner of service on the part of the doctor and the hospital and also for not properly taking such care prior to operation and post operative stage and actually for not considering past history of the patient after admission and so it is proved beyond any manner of doubt for the laches of the hospital and op no.2 Dr. P. Roy and for operating such a patient when she was suffering from jaundice, the death was caused for wrong treatment of op no.2 in the hospital of op no.1 and for which the present op no.1 and op no.2 are jointly liable for the death of Sarmistha Mukherjee.  One cannot think for a moment that a lady aged about 38 years with good health and good physic appeared before the op nos 1 & 2 with abdominal pain and that was detected by a doctor as gall bladder stone.  Nowadays the death for gall bladder operation is unknown that is also claimed by the op no.2 also.  But in such sort of treatment bill was raised Rs. 13,00,000/-  and ultimate result was death of the patient.

Then it is clear that for negligence and deficiency for a simple operation the patient was admitted to hospital but she came out with her dead body and so it is common rights of complainant to take action for negligence of the doctor and hospital when the present op no.2 did not discharge his responsible degree or knowledge and did not apply the scientific method prior to operation and post operative stage.  So, the omission to investigate by adopting modern science equally the negligence on the part of the op no.2 and also on the part of op no.1caused the death of Sarmistha Mukherjee and as because op no.2 is appointed by the op no.1 and another factor is that prior to admission the patient was not properly examined by Dr. P. Roy.  But patient was admitted at op’s hospital and op/hospital deputed that doctor for treatment.  So, both hospital and op no.2 as doctor in this particular case are equally responsible and no doubt a doctor must be more careful about saving life of a patient but not to give chance to hospital to earn huge money and make more profit and by that way to make the doctor more profitable.

But in this case the procedure has been adopted by the doctor and the hospital are unethical for which both are equally responsible for the death of the patient Sarmistha Mukherjee at the age of 38.  But anyhow against op no.3 we find that he got the patient as it was referred by Dr. P. Roy when the condition of the patient was beyond control and Dr. P. Roy failed to give any assurance of her life and he handed over her to another doctor op no.3 who is nothing but scapegoat in this case and against him practically there is no such proof that he did not properly discharge his duties as doctor and in fact in a precarious condition Dr. P. Roy handed over the patient to op no.3 only to save his skin.  So, there is negligence and deficiency on the part of the op no.3 is proved by sufficient materials.

In the light of above findings and also considering the entire materials documents and opinion of the expert doctors and other we are confirmed that it is a good case rather it is a very best case the complainant has proved beyond any manner of doubt the negligence and deficiency on the part of the op no.2 and also op no.1 hospital authority for causing the death of his wife Sarmistha Mukherjee in case of a simple operation of gall bladder stone against op nos. 1 & 2 but this case fails against op no.3.

Hence, it is

                                                      ORDERED

That the complaint be and the same is allowed on contest against the op nos. 1 & 2 with cost of Rs. 10,000/- each of op and same is dismissed against op no.3 but without any cost.

Op no.2 is hereby directed to pay a compensation of Rs. 10,00,000/- to the complainant and op no.1 shall have to pay compensation of Rs. 6,00,000/- to the complainant for causing the death of his wife at the age of 38 years and also for causing mental pain, agony and sufferings of the complainant and his family members that is her sons and daughters and also for negligent and deficient manner of service as rendered by the Dr. P. Roy op no.2 and op no.1 hospital.

Op nos. 1 & 2 are jointly directed to clear and satisfy the decreetal amount by paying the same before this Forum in the hand of the complainant by issuing bank draft but not any cheque within one month from the date of this order failing which for each day’s delay for non-compliance of the order a sum of Rs. 5,000/- shall be assessed as penal interest over the same till full satisfaction of the decree if same is collected it shall be deposited to this Forum.

Op nos. 1 & 2 are directed to comply the order very strictly and for disobeyance of Forum’s order invariably penal prosecution u/s 27 of C.P. Act 1986 may be started for which they shall be imposed further penalty and fine.