27/03/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

            This Appeal is directed against the judgment and order passed by Learned District Forum, Kolkata, Unit-I dismissing the complaint bearing no.CC 210 of 2009 on medical negligence. 

            The case of the Complainant/Appellant, in short, is that her father P.K. Mukherjee, since deceased, was taken to Dr. Amal Bhattacharya on 01/06/07 and upon examination the doctor noted the following problems:

1. General debility
2. Left direct inguinal hernia
3. B P H
4. L B P

and the doctor advised that the patient should be admitted in Medi View Nursing Home, 74, Broad Street, Kolkata.  In spite of such direction by the doctor, the patient was admitted in OP No.1 Belle Vue Clinic and was placed under the supervision of Dr. S. Maitra who advised ultrasonography which was done on the same date.  Thyroid Function Test and other blood tests were also done.  From the USG report of the whole abdomen it was apparent that there was enlarged liver, multiple ill defined mixed echoic and hyperechoic SOL of different sizes involving the liver.  As regards the prostrate the reports revealed that it was enlarged in size, Echo Texture was heterogenous.  The final impression of USG was –

1. Hepatomegaly with multiple ill defined hyperechoic and mixed echoic SOL involving the liver – Metastasis
2. Mild irregular thickening of the bladder wall with incomplete bladder evacuation
3. Gross prostatomeguly
4. Wild ascites.  Suggested of better evaluation.

C T Scan was suggested for better evaluation.  C T Scan guided FNAC was done on 05/06/07 and it revealed metastatic adenocarcinoma.  Ultimately on 08/06/07 at 10.35 a.m. the father of the Complainant died.  The Complainant has alleged that the patient was admitted on 02/06/07 with weakness and pain in left groin.  On 03/06/07 Sonogrophy and blood test were done.  Suspected cancer in liver and lungs had been detected.  On 04/06/07 OPs took the patient for C T Scan guided FNAC which was a very painful test.  At that time the patient was kept waiting at the corridors for long time without any attendant.  The patient felt suffocating and oxygen was not provided to him.  The condition of the patient became miserable.  The test was not done ultimately and he was taken back to the cabin.  On 05/06/07 in the morning bed sore was found in the back.  It occurred due to the negligence on the part of the Hospital.  The attending nurses tried to establish that patient was admitted in the Hospital with bed sore.  On 06/06/07 at 11 a.m. catheter was administered to the patient as there was no urination for a long period.  No Urologist was consulted and no medicine was suggested by the doctor.  On 07/06/07 there was pain in the leg, but no diagnosis was made.  At 3 p.m. patient felt feverish, rigor also occurred and it was reported.  No doctor was present at 6 p.m.  On 08/06/07 in the morning it was made known to the Complainant that the patient’s condition was very bad.  Dr. Maitra was not available.  Dr. Neogi was requested to look after the patient.  At 10 a.m. Dr. Neogi along with Dr. Goswami, a cancer specialist informed the Complainant that the patient had been suffering from a life threatening disease – urinary sepsis.  But no medicine was prescribed.  The Complainant has adduced the opinion of Dr. Ajoy Gupta, a medical expert wherein it has been observed that due importance should have been given to the highly raised level of fibrinogen, FDP, D-Dimer, PSA in the blood of the patient and management should have been provided by way of consulting appropriate specialist/expert doctors, namely, Oncologist, Hematologist and Urologist.  It was further observed that C T Scan of the whole body should have been arranged.  Under such circumstances, the complaint was filed before the Learned District Forum. 

            The Learned District Forum having considered all the materials on record dismissed the complaint. 

            The Learned Counsel for the Appellant has submitted that bed sore developed when the patient remained admitted in the Hospital and it was due to the laches and negligence on the part of the Hospital.  It is submitted that on 02/06/07 the patient was admitted in OP No.1 and on 08/06/07 the patient died as proper treatment was not provided.  The Learned Counsel for the Appellant relied on the opinion of Dr. Ajoy Gupta which was filed by the Complainant and the said opinion may be treated as expert opinion.  It is contended that no proper diagnosis was made with regard to cancer.  It is contended that against the opinion of Dr. Ajoy Gupta no counter expert opinion was given by the OPs.  It is submitted that bed sore developed at the Hospital, but at no stage it was noted in the treatment sheet and no proper treatment of bed sore was done.  It is submitted that the Hospital is vicariously liable for the acts and omissions of the doctor and nursing staff.  The Learned Counsel for the Complainant/Appellant has referred to the decisions reported in 2006 CTJ 334 (NC) [K. Venkateshwarlu vs. Managing Director, Nagarjuna Hospital]; 2007 CTJ 712 (NC) [Nand Kishore Verma & Ors. vs. Batra Hospital & Medical Centre-1 and Ors.]; 2009 (4) CPR 15 (NC) [The Manager, New Age Motors Pvt. Ltd. & Anr. vs. Vijay Kumar & Ors.].

            The Learned Counsel for the Respondent/Hospital has submitted that the patient was aged 84 years and had been suffering from various ailments.  It is contended that nowhere in the petition of complaint the lacuna on the part of the Hospital has been mentioned.  It is contended that the patient got admitted with the bed sore as it was noted in the treatment sheet.  It is submitted that the Hospital took enough care in providing treatment.  It is submitted that the allegations as raised in the petition of complaint were not correct and proper treatment and management were provided by the OP. 

            The Learned Counsel for the Respondent No.2 has submitted that all the necessary tests were done and there was no negligence on the part of the Respondent.  It is submitted that the opinion of Dr. Ajoy Gupta cannot be treated as expert evidence as he is not an expert in the field of Hematology, Oncology or Urology.  It is submitted that the complaint was lodged with the Medical Council, West Bengal which was rejected and it was suppressed by the Complainant.  It is contended that Appeal was preferred, but the same was rejected.  It is submitted that there was no case of negligence and there was no lacuna on the part of the Respondents. 

            The Learned Counsel for the Respondent has referred to the decision reported in 2014 (8) Supreme 746 [Sultan Singh vs. State of Haryana] wherein it has been held that the opinion of expert witness on technical aspects has relevance, but opinion has to be based upon specialized knowledge and data. 

            We have heard the submission made by both sides and perused the materials on record.  It is the allegation of the Complainant/Appellant that bed sore developed when the patient remained admitted in the Hospital and no treatment was done.  On perusal of the papers on record, we find that the patient was admitted on 02/06/07 and he expired on 08/06/07.  From the treatment sheet we find endorsement that the patient was received with bed sore on buttock.  The signature was there with date 02/06/07.  Moreover, from the treatment sheet dated 03/06/07 it further appears that there was endorsement as to old bed sore and back care was given.  Treatment sheet dated 04/06/07 shows that back care was given and bed sore dressing was done.  It appears from the endorsement dated 05/06/07 that back care and bed sore care was given and medicines were applied on buttock.  Endorsement dated 06/06/07 also shows that bed sore care was done.  On 07/06/07 it was noted that back care and bed sore care were given.  From the endorsement made in the treatment sheet it is clear that the patient came to the Hospital with bed sore and during his stay there proper treatment and care were provided during the said period.  The Complainant’s allegation on this score is not acceptable. 

            It has been alleged that when the patient was being taken for C T Scan guided FNAC no attendant was present and due to suffocation the condition of the patient became miserable.  On this point none of the patient party was present there and in absence of evidence the Complainant’s allegation in this regard is not acceptable.  As to the detection of adenocarcinoma, sepsis it appears that the patient was at advanced stage of cancer and the history of treatment prior to admission in OP No.1 was not disclosed by the Complainant.  On perusal of the materials on record, we are of the view that during the period of stay in the OP Hospital proper care was taken and the treatment as per standard practice and procedure was done.  Several tests were done.  The opinion of Dr. Ajoy Gupta as relied upon by the Complainant cannot be accepted, in as much as, the OP did not get opportunity to cross-examine Dr. Ajoy Gupta by putting questionnaires and Dr. Ajoy Gupta was not an expert in the field of Oncology, Urology or Hematology.  Relying on the decision of the Hon'ble Apex Court in the case of Sultan Singh vs. State of Haryana (supra), we are of the considered view that the opinion of Dr. Ajoy Gupta would not come in the aid of the contention of the Learned Counsel for the Complainant/Appellant.  The Learned District Forum duly considered the respective cases of the parties and after considering the materials on record was justified in dismissing the complaint.  There is no ground to interfere with the findings of the Learned District Forum. 

            The Appeal is dismissed.  The impugned judgment is affirmed.