DATE OF FILING : 05.01.2015.
DATE OF S/R : 12.03.2015.
DATE OF FINAL ORDER : 31.08.2017.
Sukumar Nalui,
son of late Ram Chandra Nalui,
residing at 10/22, Kasundia 2nd Bye Lane,
Olabibitala Dutta Math, P.O. Santragachi, P.S. Shibpur,
District Howrah,
PIN 711104. ………………………………………………………… COMPLAINANT.
1. Calcutta Heart Research Centre,
unit of Aloka Medicare ( P ) Ltd.,
169, G .T. Road ( South ), Shibpur,
near Aloka Cinema Hall,
District Howrah,
PIN 711102.
2. Dr. Goutam Chatterjee,
M.B.B.S., D.M., R.D.,
Consultant Radiologist of
Calcutta Heart Research Centre,
169, G.T. Road ( South ), Shibpur, near Aloka Cinema Hall,
District Howrah,
PIN 711102
3. Dr. Biswanath Mukhopadhyay,
Pediatric Surgeon of
Appllo Gleneagles Hospital, Kolkata,
7E, Dinobandhu Mukherjee Lane,
P.O. & P.S. Shibpur,
Howrah 711102.
4. D.M.S. ( Director of Medical Service ),
Appllo Gleneagless Hosptal,
58, Canal Circular Road,
Kolkata 700054. ……………………………………….…OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Shri A.K. Pathak.
Hon’ble Member : Smt. Banani Mohanta ( Ganguli ).
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Sukumar Nalui, praying for a direction upon the o.p. nos. 1 & 2, to pay him Rs. 19,50,000/- for the sufferings of his son and for their physical and mental harassment and litigation costs.
- The case of the petitioner is that his son, Subhrajoyti Nalui, being a student of Class VIII suffered from acute pain of the abdomen and was treated by Dr. Sujoy Chakraborty, who prescribed medicines but the pain was not reduced and then the petitioner took his son to the chamber of Dr. Goutam Singha Roy on 11.12.2014 and the doctor examined him and prescribed some medicines and recommended for urine culture, C.T. Scan of abdomen and advised him to go to Calcutta Heart Research Centre at Shibpur for C.T. Scan and culture of urine. One Mr. Sitaram collected the urine from the petitioner as per recommendation of said Dr. Goutam Singha Roy and also for C.T. Scan of whole abdomen of the patient was done on 12.12.2014 by Dr. Goutam Chatterjee, MBBS, DMRD Consultant Radiologist of Calcutta Heart Research Centre and in the C.T. Scan report Dr. Chatterjee reported “a lobulated solid SOL” is shown in the wall of small intestine ( Jejunum ) with Compromised Lumen Dia meter measuring 42 mm X 41 mm and in the impression column the doctor reported “Solid SOL in relation to the Lumen of Jejunum mainly exophytic in nature and compromised Lumen, suggested further investigation to exclude G.I.S.T. Clinical Correlation suggested.” The charge for doing C.T. Scan was Rs. 6,700/- and having received the said report of Dr. Goutam Chatterjee of Calcutta Research Centre, the petitioner went to Dr. Goutam Singha Roy who advised the petitioner to contact with senior doctor and pediatric surgeon and accordingly the petitioner met with Dr. Biswanath Mukherjee of 72, Dinabandhu Mukherjee Lane, Shibpur, who was attached to Appollo Gleneagles Hospital at 58, Canel Circular Road, Kolkata 700054, for consultation on 14.12.2014 and doctor advised for operation and some pathological tests. The petitioner had done the pathological tests and on 18.12.2014 the petitioner and his wife contacted Dr. Biswnath Mukherjee at Appollo Gleneagles Hospital and the doctor advised for admission of the patient at pediatric ward of the hospital on Friday at 1 p.m. and operation would be done Saturday at 8 a.m. and accordingly the petitioner admitted his son in the hospital on 19.12.2014.
- On 20.12.2014 the operation started at 8 a.m. and continued till 10.30 and Dr. Biswanath Mukhopadhyay thereafter came back from the operation theatre and told the petitioner and his wife that as per C.T. Scan report they got nothing and so this scan report was wrong and he further told that after opening the abdomen they minutely examined the intestine again and again that means near about seven times they examined the intestine thoroughly but they did not get ‘tumor’ therein i.e., no tumor was detected in the gastro intestine track and lump was palpable. This poor and unfortunate patient was wrongly treated on the basis of the wrong C.T. Scan report and he badly suffered during long duration of operation period and his academic career as a school student was also badly destroyed and affected due to a wrong CT Scan report. The petitioner and his wife had to pass many sleepless night staying in the hospital and they had to pay a bill amounting to Rs. 90,877.86 to the Appollo Glenesgles Hospital. This petitioner is a practicing advocate with, his low level income and had to spend a sum of Rs. 1,40,000/- in total for the treatment of his son and so he prays for compensation of Rs. 19,50,000/- from the Dr. Goutam Chatterjee who made the C .T. Scan report in the Calcutta Research Centre and prayed for cancellation of his certificate and also claims compensation from the institution wherein such C.T. Scan was held.
- The o.p. no. 1, Calcutta Research Centre, contested the case by filing a written version denying the allegations made against them and submitted that the application is harassing and misconceived and liable to be rejected because the petitioner filed this case which is barred by limitation and suppressed many a material facts.
- It is fact that the petitioner came to the o.p. institution on 12.12.2014 for CT Scan of his son and Dr. Goutam Chatterjee saw the CT Scan report and suggested that further investigation is needed and in his report the Dcotor opined __.”
- Dr. Biswanath Mukherjee was over satisfied in such report and haddone the operation without second C.T. scan and without MIR or any ultra sound or any further investigation. Dr. Mukherjee wrongly operated the patient without further investigation. On 14.12.2014 the patient party consulted the surgeon who himself opined that “no lump palpable” and on 18.12.2014 the surgeon wrote that no lump palpable but even after that the operation was done without recording CD recording and there was no emergency involved and the patient could have waited for further investigation and clinical correlation. The said Dr. Biswanath Mukherjee and Apollo Gleneagles Hospital are not made parties even if they are directly involved and the petitioner has no relief against them.
- Dr. Goutam Chatterjee reported that lobulated solid SOL is shown in the wall of small intestine with compromises lumen diameter measuring 42 mm X 41 mm but Dr. Goutam Chatterjee also in his report suggested for further investigation to exclude G.I.S.T. and also suggested clinical correlation. Operation is only done when the surgeon was absolutely sure about the location and nature of the mass. This petitioner field this case to get money out of nothing and this case is not maintainable in the eye of law and should be dismissed.
- The o.p. no. 2, Goutam Chatterjee, contested the case by filing a written version denying the allegations made against him and submitted that the case is not maintainable and the same is barred by law. He further submitted that one patient Subharjyoti Nalui, aged about 14 years came to the Calcutta Heart Research Centre for CT Scan of whole abdomen ( plain + contrast ). But the o.p. no. 2 had no knowledge with whom the patient came. It is fact that CT Scan of whole abdomen of the patient was done in the centre on 12.12.2014. He was not present at the time of CT Scan and it was done by expert technician of the Heart Research Centre. It is not essential duty of the radiologist to remain present at the time of CT Scan but after going through said film plates and papers he mentioned his impression or suggestion –
”Solid SOL in relation to the lumen of Jejunum mainly exophytic in nature and compromised lumen.
Suggested further investigation to exclude GIST.
Clinical correlation suggested.”
It is not a fact that the report is wrong and being a radiologist he gave his report and the CT Scan film and he did not diagnose the patient. Dr. Biswanath Mukherjee who operated the said patient would have further made investigation and the same would have excluded GIST as per opinion impression / suggestion. Dr. Biswanath Mukherjee advised operation without doing further investigation as advised in the CT Scan report. The o.p. no. 2 is not liable and responsible for the operation of the son of the petitioner as he discharged his duty by providing CT Scan report and so the petitioner is not entitled to any relief from this o.p. no. 2.
It is curious enough to know that the documents submitted by the petitioner showing that his son discharged from the Appollo Glenesgles Hospital on 23.12.2014 and Dr. Biswanath Mukherjee issued a certificate on 26.12.2014 and it is not clear why the doctor issued such type of certificate on 26.12.2014 after issuing discharge summery and what was the reason behind such issuing of certificate after release of the patient. There was no fault on the part of the o.p. no. 2 and so the case against him be dismissed.
- The o.p. no.3 contested the case by filing a written version denying the material allegations made against him and submitted that the case is not maintainable against him. As a matter of fact the petitioner has suppressed that the patient was seen by the o.p. no. 3 twice for pain, nausea and vomiting and the o.p. no. 3 made clinical diagnosis that he suffered from appendicitis and so the o.p. no. 3 advised for appendicectomy. Thereafter the patient was taken to Dr. Goutam Sinha Roy who advised for CT Scan Report which shows a mass lesion ( 42 mm X 41 mm ) arising from Jejunum. Subsequently the o.p. no. 3 examined him with CT Scan report and recommended for operation after discussing approximate cost in the Appollo Hospital with his diagnosis of Apendicities. The patient was operated on 20.12.2014 by laparotomy and palpated four times and no tumor was found in the small utestine. Rather his appendix was long, edematous with fecolith ( suggested of appendicitis ) and so the appendicectomy done. The patient had a smooth post operative recovery and complete relief of pain, nausea and vomiting an discharged from the hospital on 23.12.2014. the o.p. no. 3 further submits that the patient was having pain because of appendicitis and appendicectomy was done. There was no tumor in the jejunam and for which complainant asked for operation findings in a letterhead and so the o.p. no. 3 gave the operation findings in his letterhead even after discharge of the patient who visited him in his chamber. Any allegation against the o.p. no. 3 is false and the case is dismissed against him.
- Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.P. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip off reiteration. In support of his case the petitioner filed affidavit as well as documents being the prescriptions of the doctors under whom he was treated and ultimately the documents relating to admission and discharge certificate from the Appollo Glenesgles Hospital.
- While going to deal with the case of medical negligence the Forum has to first keep in mind as the what is negligence and when negligence means omission to do some thing which a reasonable man would do or doing some thing which a reasonable and prudent man would not do and thus negligence is connected with the doing or not doing such acts as is before a man as is before a man..
- Medical Negligence may be defined as doing of some act which a medical practitioner of ordinary prudence could not have done under similar circumstances or the doctors failure to do what a medical practitioner of ordinary prudence having requisite qualification would have done under similar circumstances. A doctor need not possess the highest skill of the expert and it is the established law that it is sufficient if the doctor exercises the ordinary skill of an ordinary competent man exercising that particular act. In the case of Bolam vs. Friern Hospital Management Committee it has been held that “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular Act.”
- Our Supreme Court in case of Jacob Mathew v State opined that “The practitioner must bring to this task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence is what the law requires.”
- Further our Supreme Court in the case of Martin F. D’Souza v. Mohd. Ishfaq opined “The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each cases is what the law requires.”
- Thus ordinary and simple negligence means failure to exercise care which is generally undertaken by the great majority of medical practitioners under the same or similar circumstances.
- In the instant case there is allegation that Dr. Goutam Chatterjee made CT Scan report opining “Solid SOL in relation to the lumen of Jejunum mainly exophytic in nature and compromised lumen. Suggested further investigation to exclude GIST. Clinical correlation suggested.” Later on Dr. Biswanath Mukherjee of Appollo Glenesgles Hospital, examined the patient and had gone through the CT scan report and opined that operation is required to remove tumor as suggested in the CT Scan. The main questions arise here whether Dr. Goutam Chatterjee while making the CT Scan report made any negligence in opining that there was tumor in the small intestine of the patient and on the basis of said report Dr. Biswanath Mukherjee operated him and also whether Dr. Biswanath Mukherjee prior to making such operation ought to have done further CT Scan and other tests to make him more sure that there was a tumor in the small intestine of the patient which needed immediate operation.
- Once a claim petition is filed and the claimant has successfully discharged the initial burden that due to negligent act on the part of the hospital or on the part of the doctor, the patient suffered or patient died. Then in that case the burden lies on the hospital or the doctor concerned who treated the patient to prove that there was no negligence involved in the treatment. Since the burden is on the hospital so they can discharge the same burden producing the doctor who treated the negligence because the hospital engages the treating doctor and so it is their responsibility. Thus in such cases of medical negligence the burden is greater on the institution / hospital or the doctor who made the treatment than that on the petitioner who filed the case. In any case the hospital or the doctor are in a better position to disclose what care was taken by them or what medicines were administered to the patient. It is the duty of the hospital or the doctor to satisfy the District Forum that there was no lack of care or diligence on their part which caused the damage to the patient and thus the doctor or the hospital is to justify such damage and the petitioner cannot be shocked to justify such injury and he can simply report such injury before the Forum.
- In the instant case the petitioner submitted that unnecessarily his son had to undergo a surgical operation due to the wrong report of Dr. Goutam Chatterjee, who opined that there was tumor in the small intestine of his son and the operating doctor, Dr. Biswanath Mukherjee after operation opined that there was no tumor as stated in the C.T. Scan even though Dr. Mukherjee and his team searched for the same tumor again and again during the course of operation. Thus in the case of medical negligence the burden proof the case shifts on the doctor or hospital who has to produce evidence that all care and caution was taken by it or its doctor and staff members to justify that there was no negligence involved in the matter. In the instant case Dr. Biswanath Mukherje during his surgery found no tumor in the small intestine as suggested by the CT Scan report wherein Dr. Goutam Chatterjee opined that there was tumor. Here the ld. counsel for the said Dr. Goutam Chatterjee who submitted before Forum that prior to operation Surgeon Dr. Biswanath Mukherjee ought to have further had a C T Scan and other tests as Dr. Goutam Chatterjee in his report opined for further investigation to exclude CT Scan. He also opined that clinical correlation suggested but Dr. Biswanath Mukherjee in a hurry operated the patient and now trying to put all blame on the doctor who making the CT Scan report for getting rid off his own negligence. Ld. counsel further submitted that it was not a case of emergency and the operating surgeon ought to have further investigation before operating the patient as there was suggestion in the CT Scan. However, ld. counsel for the o.p. no. 3, Dr. Biswanath Mukherjee submitted that he ( doctor ) had gone through the CT Scan report and opined for operation for the purpose of removing the tumor as suggested in the CT Scan by Dr. Goutam Chatterjee and the surgeon cannot be blamed for the latches on the part of the doctor opining on the CT Scan and the surgeon followed the established procedure of treatment for removal of tumor.
- In the instant case the patient had the medical history of suffering from pain in the belly and these was improper treatment i.e., operation on the basis of C.T. Scan which indicated tumour in the small intestine and thus here the surgeon operating the patient cannot be held responsible for the sufferings of the patient rather the doctor who gave the C.T. Scan report after examining the plates, be held responsible for the sufferings of the patient. The o.p. no. 2 is responsible here because in C.T. Scan he for the sufferings of the patient. The o.p. no. 2 is responsible here because in C.T. Scan he found tumor but the surgeon who operated the patient found no such tumor.
- On scrutiny of the case record including the medical documents and various medical literatures this Forum finds that there was a wrong diagnosis which cannot be treated as error of judgment. Dr. Goutam Chatterjee who reported on the CT Scan after scrutinizing the films of the CT Scan clearly mentioned that Solid SOL in relation to the lumen of Jejunum mainly exophytic in nature and compromised lumen clearly opining that there was a lump which may be a tumor in the small intestine which causes the pain in the belly of the patient and after such report of CT Scan the surgeon Dr. Mukherjee rightly arrived at the decision that he would operate the petitioner to give him relief from the pain in the belly. It is not possible for the common man to get CT Scan one after another even in a lapse of 2/4 days as in the instant case the CT scan was done on 12.12.2014 and the patient reported before Surgeon Dr. Biswanath Mukherjee on 14.12.2014 and the doctor advised for operation and some pathological tests done on 19.12.2014 and the patient was admitted in the hospital and on 20.12.2014 the operation was done wherein no such tumor was located in the small intestine of petitioner’s son and thus all the acts like the CT Scan for operation took place within a week and there is no scope of the tumor being seen on 12.12.2014 got vanished within a lapse of seven days when the Dr. Biswanath Mukherjee operated the patient on 20.12.2014. Thus it is clear that the doctor in the instant case has not taken a reasonable degree of cares, skill and knowledge even though no higher skill is expected from him. During such scanning of the films he became careless and opined that there was tumor in the small intestine of the patient.
- Thus in the instant case the petitioner has successfully discharged his initial burden that damage caused to his son who had to undergo such huge operation without having any such tumor in his belly and for such injury and damage to the patient there was simple negligence on the part of the doctor who opined on the CT Scan film namely Dr. Goutam Chatterjee, o.p. no. 2, in the instant case. In the medical literature there is no mention that prior to operation by surgeon as many CT Scan or MRI would be done as possible rather a single scan could show clearly that there was tumour or not and thus the o.p. no. 2 Dr. Goutam Chatterjee cannot get rid of his negligence as he wrote in report that further investigation was suggested by him. Rather here the doctor and the institution where the C.T. scan was done by the technical staff of that institution are responsible for the damage caused to the patient and the surgeon cannot be held responsible as he acted on the basis of report of the doctor made 2 / 4 days earlier and the O.P. 4 also had no role to play here and no allegation against it and so they cannot be found responsible.
- Thus keeping in mind the principles laid down in Bolam Case that “a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical man skilled in that particular act.” In the instant case the doctor de doctor who reported on the CT Scan though qualified enough yet he was not cautious enough or rather he did not take proper case in opening that there was tumor in the small intestine of the young boy of about 14 years old and on the basis of said report the surgeon operated the patient and found no such tumor in the small intestine even after repeated search made by himself and his team men in the O.T. and thus the carelessness and negligence on the part of the doctor opining on C.T. Scan is solely responsible for such damage caused to the patient and also the institution which engaged such a radiologist for making the report.
- Further, it is fact that the patient suffered due to such wrong scan by radiologist and thus both the doctor and the institution are liable to pay compensation to the petitioner being father of patient who spent more than one lakh for such treatment and also their physical and mental harassment.
- Thus in the instant case the o.p. no. 2, Dr. Goutam Chatterjee, and o.p. no. 1, Calcutta Heart Research Centre were found negligent in discharging their duties resulting which the son of the petitioner suffered injury in the process of his operation in the belly, both o.p. nos. 1 & 2 are liable to pay compensation to the petitioner as in the instant case there was a clear breach of contract committed by o.p. nos. 1 & 2 and the said breach inflicted injury to the son of the petitioner and the extent of injury was both pecuniary and non pecuniary as in the said treatment the petitioner had to spend Rs. 1,40,000/- in total for which he produced some documents and also non pecuniary future losses in respect to the son whose study was hampered and he has to carry the physical injury caused to him by operation through out his life. Thus keeping in mind the object of awarding compensation to put the injured in a position as if his rights were not violated by such breach of contract. Thus, this Forum thought it wise to direct the o.ps. to pay a sum of Rs. 1,40,000/- as treatment cost and Rs. 2 lakhs out of which 1 lakh be paid to the petitioner as compensation and rest Rs. 1 lakh be deposited in the Consumer Legal Aid A/c. of the district and to pay Rs. 10,000/- as litigation costs.
In view of above discussions and findings, the petitioner succeeds in proving his case and entitled to get reasonable reliefs as prayed for.
In the result, the claim case succeeds.
Court fee paid is correct.
Hence,
O R D E R E D
That the HDF Case no. C. C. 2 of 2015 be and the same is allowed on contest with costs against the O.P. nos. 1 & 2 and dismissed without costs against o.p. nos. 3 & 4.
The petitioner is entitled to reasonable relief as prayed for. The o.p. nos. 1 & 2 are directed to pay a sum of Rs. 1,40,000/- as treatment cost and Rs. 2 lakhs out of which 1 lakh be paid to the petitioner as compensation and rest Rs. 1 lakh be deposited in the Consumer Legal Aid A/c. of the district and to pay Rs. 10,000/- as litigation costs.
The o.p. nos. 1 & 2 failing to comply the order of the Forum within 30 days from the date of this order, the o.ps. to pay @ 9% p.a. interest on the whole amount from the date of this order till realization and petitioner is at liberty to put the final order in execution after expiry of the appeal period.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
