IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC /22/2008.
Date of Filing: 05.02.2008. Date of Final Order: 31.08.2016
Complainant: Bilas Manjuri Roy, W/O Late Sakti Pada Roy, 24/64, Joy Chand Road, P.O. Khagra,
Indrapuri, P.S. Berhampore, Dist. Murshidabad.
-Vs-
Opposite Party: 1. Dr. Susanta Kumar Sen, S/O Dr. Sunil Kumar Sen 2. Dr. A. K. Maity S/O Mr. B.B. Maity-Both are attached to Murshidabad Nursing Home & Diagnostic Centre Pvt. Ltd.
3. Murshidabad Nursing Home & Diagnostic Centre Pvt. Ltd.,
Kodbeltala (Kashabnagar), Jalangi Road, P.O. Cossimbazar Raj, P.O. Berhampore,
Dist. Murshidabad.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C.P. Act, 1986 praying for payment of medical expenses amounting to Rs.11.55 lacs along with interest @12.5 % till realization and compensation of Rs.6 lacs.
The complainant’s case, in brief, is that Saktipada Roy, deceased husband of the complainant was admitted in the Berhampore Sadar Hospital on 6.7.2007 with severe pain in his abdomen. He was a Primary School Teacher attached to C.R.G.S. Pry School. For lack of proper infrastructure to treatment he was forced to get release from Hospital and was admitted in the Nursing Home of OP No. 3 making initial payment of Rs.5000/- on 7.07.2007 as per advice and assurance of Op No.1 to render proper treatment. OP no.1. diagnosed that a laparoscopic operation was required as because the patient was suffering from gall-bladder stone and he proposed that Dr. A. K. Maity, OP No.2 will hold operation coming from Kolkata. The complainant being simple house wife was impressed and agreed to such proposal and date of such operation was fixed on 10.7.2007. On 10.07.2007 Op No.2 reached Berhampore from Kolkata and operation was started on 12.30 p.m. But surprisingly it took a long 2 to 3 hours to complete such operation and surprising enough that during the time of operation the Nursing Home authority asked the complainant to arrange 2/3 bottles of blood though the same was not advised earlier. OP No.2 after completion of operation disclosed that the operation was successful and left for Kolkata. From the next date after operation condition of the patient gradually deteriorated and the bleeding from the abdomen of the patient through the artificial drain was not stopped rather it gradually increased. Another 2 units of blood, arranged and supplied by the complainant was given to the patient as per advice of OP no.1. But the condition of the patient was not improved. On 13.07.2007 in the evening OP no.1 disclosed that condition of the patient has become critical and advised to shift the patient to Kolkata. Then complainant tried to contact OP no.2 over phone but he refused. Then, on that day at late night the patient was brought to Kolkata and was admitted in Woodland Nursing Home on 14.7.2007 at 5.45 a.m under Dr. R. Anklesaria and on examination he opined that the patient was suffering from complications of laparoscopic cholecystectomy done in Murshidabad Nursing Home on 10.7.2007 and the patient was found to be in septicaemic shock with peritonitis. The doctor also opined that it became too late to start further better treatment and open operation at the abdomen was urgently required. To save the life of the patient Dr. Ankelsari a performed open operation on the abdomen and after completion of operation he told the complainant that at the time of first laparoscopic operation the patient has sustained not only “Complete transaction of the Common Bile Duct but also excision of entire 2-3 C.M. segment of the CBD from just below the confluence of the hepatic ducts to the just above duodenum and also a rent in the portal vein”. During operation Dr. Anklesaria removed one large gall stone along with numerous small stones and he also reported the torn segment of the CBI and portal vein. After operation the patient was kept in Intensive care Unit for nine days. The complainant paid about Rs.10 lacs to Woodland Hospital and Rs.1 lac for cost of medicine. Being unable to bear the expenses of treatment she was constrained to shift the patient to Shri Vishudhananda Hospital & Research Institute, Kolkata on 21.8.07 where she paid more than Rs.50, 000/ towards hospital charge and medical expense and ultimately died there on 01.09.2007. The OP Nos. 1& 2 performed the operation upon deceased Saktipada Roy in a very negligent, careless and care free manner and as a result of which 2-3 C.M. segment of common Bile Duct has been dissected and portal vein was torn which caused severe bleeding from abdomen of the patient. The OP no.1 and 2 also treated the patient very negligently as a result of which patient got severe type of infection on blood as well as bile for which he ultimately died. For such negligent act the complainant has filed the instant complaint. Hence, the instant complaint case.
The written version filed by the OPs, in brief, is that taking all precautions operation was done successfully. There were no unusual post operative complications after the operation. But on 13.07.2007 bile leakage was found. To know the reason of such bile leakage the patient was referred to Kolkata for E.R.C.P. Test. The Opposite Party never advised the patient to shift the patient for further treatment, but only advised for E.R.C.P. test., But thereafter the patient never came to this Opposite Party and for that he was in dark whether the patient got the treatment from Woodlands Hospital or any other Hospital. The second surgery done by Dr.D.R. Anklesaria on 14.7.07 at Woodland Hospital, Kolkata without controlling septicaemia while the patient was suffering from Septicaemia. The Ops are not responsible for such complication. Woodland Hospital & Medical Centre and D. D.R. Anklesaria are responsible. Ultimately, patient was admitted in Vishudhananda Hospital and died there. All those are necessary parties but those two Hospitals and Dr. Anklesaria are not parties in this case and for that the case is bad for defect of parties. Dr. D. R. Anklesaria repaired torn segment of C.B.D. and Portal Vein when the patient went to Kolkata from Berhampore. Due to negligence of Dr. D.R. Anklesaria the patient was suffering from various complications. There was no infection when the patient was in Berhampore Nursing Home. Dr. D.R. Anklesaria to avoid his negligence opined that at the time of first Laparoscopic Operation the patient sustained injury in C.B.D and portal vein. The complaint is liable to be rejected. Hence, the instant written version.
Considering the pleadings of both parties the following points have been fixed for the disposal of the case.
Points of Decision
1. Whether the complaint is maintainable in its present form and law?
2. Whether the complainant has locus standi to file the complaint?
3. Whether the case is bad for defect of parties for non-joinder of necessary parties?
4. Whether the complainant is entitled to get the relief as prayed for?
5. To what other relief/reliefs the complainant is entitled to get?
Decision with reasons.
All the points are taken up together for the sake of convenience.
This is a case for compensation of Rs.6 lac and medical expenses of Rs.11.55 lac along with interest @ 12.5% p.a for medical negligence.
The complainant’s main case is that the OP No.1 &2 performed the operation upon deceased Saktipada Roy in a very negligent, careless and carefree manner and as a result of which 2-3 c.m segment of common Bile Duct has been dissected and portal vein torn which caused severe bleeding from abdomen of the patient. The patient got severe type of infection on blood as well bile for which he ultimately died. Four bottles of blood were transfused to the patient at OP No.3 nursing home at Berhampore but bleeding was not stopped then OP No.1 referred the patient to Kolkata for some test and examination and at that time he was admitted in Woodland Nursing Home, Kolkata under Dr. Ankelsaria who found the patient to be in septicaemic shock with peritonitis and to save the life of the patient he performed 2nd operation.
On the other hand, the OPs’ case, in brief, is that taking all precautions operation was done successfully. There were no unusual post operative complications after the operation. But on 13.07.2007 bile leakage was found. To know the reason of such bile leakage the patient was referred to Kolkata for E.R.C.P. Test. The Opposite Party never advised the patient to shift the patient for further treatment, but only advised for E.R.C.P. test. But thereafter the patient never came to this Opposite Party and for that he was in dark whether the patient got got from Woodlands Hospital or any other Hospital. The second surgery done by Dr.D.R. Anklesaria on 14.7.07 at Woodland Hospital, Kolkata without controlling septicaemia while the patient was suffering from Septicaemia. The Ops are not responsible for such complication. Due to negligence of Dr. D.R. Anklesaria the patient was suffering from various complications. There was no infection when the patient was in Berhampore Nursing Home. Dr. D.K. Anklesaria to avoid his negligence opined that at the time of first Laparoscopic Operation the patient sustained injury in C.B.D and portal vein.
To prove the case the complainant has examined PW-1, the complainant herself and PW-2 , Dr. Ankelsaria and has adduced the relevant documents in support of her case.
On the other hand the OP No.1 has himself been examined as OPW-1 and examined another doctor Uday Sankar Chatterjee.
PW-1 has filed her examination-in-chief by affidavit in the same time corroborating the complaint petition and also tendered on dock for cross-examination.
PW-1 , the complainant has deposed in her examination-in-chief supported by an affidavit that on 10.07.2007 OP No.2 reached at Berhampore from Kolkata and operation was started at 12:30 hours.
She has deposed that during operation Nursing Home Authority asked to arrange 2/3 bottles of blood though the same was not advised/sought earlier.
She has deposed that after completion of the operation Op No.2 disclosed that the operation was successful and the patient would start his normal life within a few days.
She has also deposed in her examination-in-chief that on and from next day of operation the condition of the patient gradually deteriorated and bleeding from the abdomen of the patient through the artificial drain was not stopped rather it gradually increased and another two units of blood were given to the patient.
She has deposed that the OP No.1 constantly told them that the patient was all right and they also contacted with OP No.2 over telephone but he answered them by saying that patient would improve gradually.
She has further deposed that in the evening of 13.7.2007 the OP No.1 confessed that the condition of the patient was very critical and he advised them to shift the patient to any good Nursing Home at Kolkata whereas she has deposed on her cross-examination that Dr. Maity, Op No.2 committed error in the process of surgery and she has filed the discharge certificate.
She has deposed during her cross-examination that Dr. Sen, OP No.1 referred her husband to Kolkata for some tests and examination and they got her husband admitted in Woodland Nursing Home on 14.7.2007.
She has also deposed in cross-examination on 22.12.10 categorically that Op no.1 did not advise for ERCP test for her husband.
She has deposed partly corroborating the OP’s case and her own case.
But the discharge certificate of Op No.3 Nursing Home issued by OP No.1 has not come in evidence before this Forum.
During cross-examination PW-1 has deposed that she has no ideas about E.R.C.P, she did not hear the doctor of Kolkata to tell that the patient had septicaemia. Initially, the patient was admitted in Woodland Nursing Home, Kolkata. She did not know whether any treatment of Septicaemia was done there or not.
P.W.2, Dr. Ankalsaria has deposed in his examination-in-chief that on examination he found that the patient has been suffering from Peritonitis. As per his opinion, the first operation was not performed correctly. The complications which he has seen in course of his operation were not detected during the first operation and the diagnosis of Biliary Peritonitis was delayed leading to gross deterioration in the patient’s conditions.
PW-2 has deposed in his examination-in-chief that he has submitted his report and in his cross-examination he had deposed that the report has been prepared on the basis of hospital notes and he has not brought the hospital notes.
He has deposed in his cross-examination that the ERCP shows a complete occlusion of the CBD in its lower third. In the year 2007 without ERCP these findings are not possible.
He has deposed in his cross-examination that when the patient was admitted under him he was in Septicaemic shock with peritonitis, there are no grades for septicaemia, such septicaemicia occurred as complication of operation on 10th July, 2007.
He has deposed that at the time of operation the patient was suffering from Septicaemia, secondary to Biliary pertitonitis. To Control Septicaemia the operation was done.
On the other hand the OPs have examined OP No.1 and OP No-2, Dr. Uday Sankar Chatterjee who was attached to Sri Vishudhananda Hospital at the relevant time as surgeon.
In this case Op no.1 has deposed on behalf of OP No.2 also.
OP No.2 the doctor coming from Kolkata held operation but has not deposed personally.
OPW-1, Dr. Susanta Kumar Sen (OP No.1) has deposed in his examination-in-chief supported by affidavit that the operation was done by OP Nos. 1,2 and Dr. Dipayan Terafdar the operation was successful and there was no post operative complication after the operation but on 13.7.07 bile leakage was found. He referred the patient to Kolkata for ERCP test to know the reason.
He has deposed that he never advised to shift the patient for further treatment but only advised for ERCP test but the patient never came to him.
He has deposed regarding operation with septicemia that the medical science speaks that if anybody is attacked by septicemia then at first septicaemia should be controlled first and after control, surgery should be done. But the 2nd operation was done when the patient was suffering from septicemia. So, there was deficiency of service on the part of the Woodland Hospital and Dr. Ankelsaria.
He has deposed that there was no torn segment of C.B.D and portal vain when the patient went to Kolkata from Berhampore. Due to negligence of Dr. Ankelsaria the patent was suffering from complications.
He has deposed in his cross-examination on 6.6.13 that before admission, he clinically examined the patient.
He has deposed in his cross-examination that on the basis of USG report he diagnosed the disease of the deceased, who paid a sum of Rs.5,000/- initially and on 7.7.07 the patient was admitted in the OP NO.3’s Nursing Home. He advised for laparoscopic cholecystectomy.
He has also deposed that OP No.2 (Dr. Maity) came to the nursing home on 10.07.07 and in between 07.07.07 and 10.07.07 he had no discussion with the OP No.2 over the treatment.
He has deposed that he assisted Dr. A.K. Maity and Dr. D. Tarafdar in performing surgery.
Regarding his skill he has deposed that he was undergone training of laparoscopic surgery and he shall have to search out the training certificate.
No such certificate has come in evidence before this Forum. This is very vital lacuna on the part of Op No.1.
He has further deposed in his cross on 19.2.14 that on the very day of operation. Dr. Maity went back to Kolkata keeping in the charge with the affairs of the patient with him.
He has deposed that immediately after operation blood was oozing out from the place of operation. Initially, drainage was made during operation. Oozing out of blood was in continuity. Blood was transfused (volunteers). Dr. Maity had no chance to see the fact of oozing out the blood. Dr. Maity conducted as many as 4-5 operations on the fateful day.
He has also deposed in his cross-examination on 7.1.14 that he had talk with Dr. Maity after 2/3 days of the admission over phone and he had no discussion about the administration of medicine and management of the patient since he is a general surgeon with M.S. Degree and he himself fixed the date of operation.
He has deposed that he kept the patient management and observation by prescribing pain-killer and antibiotic. On his advice examination of blood, ECG and X-ray were done. After observing true condition of the patient on his admission he did not operate and he found paper to place that Dr. Maity conducted the operation.
He has also deposed that after operation he advised the patient party to collect the blood of 2 pouches. Before undertaking operation he did not feel it necessary for having blood for the patient.
OP No.2 is Dr. Uday Sankar Chatterjee who was attached to Vishudhananda Hospital as Surgeon at the relevant time and the patient was admitted in that hospital under him.
He has deposed in his examination-in-chief that before his treatment Saktipada Roy had undergone two operations. He treated Saktipada Roy on 21. 8.07 till death (1.9.07) after operation by Dr. Anklesaria and he treated conservatively.
He has deposed that during his treatment there were features of septicaemia. During septicemia there cannot be any operation as per medical science.
He has deposed that he had contact with OP No.1 being his senior. He contacted OP No.1 for my introduction in the said nursing home in the year 2002. He had discussions with Dr. Op No.1 relating to this case. He had told me to depose as expert opinion.
He has deposed that he does not know Dr. Ankelsaria.
He has deposed that he has not brought the case history of the patient Saktipada Roy.
He has also deposed that he has not mentioned any adverse remarks in the Bed Head Ticket of Saktipada Roy about treatment by Dr. Anklesaria as unethical.
The complainant’s main case is that for the negligence of doctors in the treatment at OP-3 Nursing Home at Berhampore ultimately died in Vishudhananda Hospital, Kolkata after 2nd operation at Woodland Hospital, Kolkata.
But, treatment sheets of any of the hospitals have not come before this Forum particularly the treatment sheet of OP No.3, Nursing Home at Berhampore have not come before this Forum.
The complainant has filed only the referral card of Sadar Hospital, Berhampore dt. 7.7.2007 referring to NRS, MCH.
The complainant has filed three pathological test reports Dr. Indranil’s Lab at Berhampore on 7.7.2007 for liver function test and two separate blood test reports and one USG of whole abdomen.
Relating to the treatment of Saktipad Roy at Berhampore the complainant has also filed two printed slips of OP no.3 Nursing Home at Berhampore dt. 9.7.07 advising for USG of whole abdomen attention to H.P. system and another dt. 10.7.07 receipt of Rs.5, 000/- as advance from Saktipada Roy and two cash memos for Rs.214/- and Rs.27 of OPNo.3 Medical Store and money receipt of Dr. Indranil Saha dt. 8.7.07 for Rs.1650/- for different tests.
OPW-1 has deposed in his examination-in-chief that the operation was done by OP No.1&2 and Dr. Dipayan Tarafdar.
Dr. Dipayan Tarafdar has not been impleaded in this case. Also, there is no specific allegation against his doctor in this complaint.
In this case OP No.2 Dr. A. Maity of Kolkata who operated the patient has not deposed.
OP no.1 has deposed on behalf of OP No.2.
The complainant has examined Dr. Ankelsaria who held 2nd Operation of the patient at Woodland Hospital, Kolkata and the patient was admitted under him and has proved his report dt. 18.7.07 .
The OP’s case is that in this case Dr. D. R Ankelsari, Woodland Hospital and Medical Centre and Vishudhananda Hospital and Research Institute have not been impleaded But they are the necessary parties and they being not impleaded, this case is bad for defect of parties.
In this regard considering the argument advanced by the Ld. lawyer for the complaint and also considering the material on record we find that in this case the complainant has not claimed any relief from the alleged necessary parties and PW-2 , Dr. Anklesari and OPW-2, Dr. Uday Chatterj attached to Vishudhananda Hospital and have deposed and they have been duly cross-examined and for that we are of view that this case is not bad for defect of parties.
The Supreme Court in the land mark judgment in Smt. savita Garg’s case has laid down the law that a case cannot be dismissed under C.P.A for non-joinder of necessary parties.
Considering the above discussions we can safely conclude that the case is not bad for defect of parties for non-joinder of necessary parties.
In this case admittedly, Saktipada Roy deceased husband of the complainant was treated at OP No.3 Nursing Home where first Laparoscopic operation was held by OP Nos. 1&2 and Dr. Dipayan Tarafdar and thereafter 2nd operation of the said patient was performed by Dr. D.R. Ankelsaria at Woodland Hospital being admitted for the period from 14.7.07 to 21.8.2007 and shifted to Vishudhananda Hospital for the period from 21.8.07 to 1.09.07 and died there on 01.09.07.
But, the bed head ticket showing treatment held to the patient Saktipad Roy in any hospital have not come in evidence before this Forum.
Both parties have challenged the negligence each other.
The complainant’s case is that the patient died for the medical negligence of the OP Nos. 1&2.
On the other hand the OP’s case is that due to negligence of Dr. Ankelsaria performing premature 2nd operation, the patient died. The patient had no Septicaemia, torn CBD segment and portal vein at Berhampore.
The complainant has adduced evidence of PW-2 Dr. Ankelsaria and has proceeded his report as expert opinion where he himself has performed 2nd operation and the same has been challenged by the OPs by examining OPW-2. Dr. Uday Sankar Chatterjee, attached to Vishudhananda Hospital under whom the patient was admitted and treated being shifted from Woodland Hospital where the patient was admitted for the period 14.7.07 to 21.8.2007.
OPW-2, Dr. Uday Sankar chatterjee has deposed in his examination-in-chief that he treated Saktipada Roy on 21.8.07 till death (01.09.07) after operation by Dr. Ankelsaria, he treated conservatively and during his treatment there was feature of septicaemia.
He has opined in his examination in-chief that during septicaemia there cannot be any operation as per medical science.
Where, he has deposed in his cross-examination that that day he did not brought the case history of the patient Saktipada Roy.
Also, he has deposed in his cross-examination that he has not mentioned any adverse remarks in the Bed Head Ticket of Saktipada Roy about treatment by Dr. Ankelsaria as unethical.
Considering the above evidence of OPW-2 in his cross-examination, it is now clear that evidence of OPW-2 cannot be relied upon as expert opinion to prove OP’s case against Dr. Ankelsaria.
Further, OP No.1 is attached to OP No.3Nursing Home and OPs main case is that there was no septicemia and torn segment of OBD and portal vein to the patient at Berhampore but OP has failed to produce the bed head ticket or treatment sheet of the patient showing his treatment at OP no.3 Nursing Home at Berhampore.
Be that as it may primary onus to prove the case is upon the complainant.
The complainant has relied upon the expert opinion of Dr. Ankelsaria who performed 2nd operation upon the patient at Woodland Hospital, Kolkata.
Dr. Ankeslawari performed 2nd operation on 14.7.07 on the very day of admission at Woodland Hospital and submitted report on 18.8.07 three days before shifting to Vishudhananda Hospital on 21.08.2007.
The impugned report of dr. Ankelsaria dt. 18.8.07 as expert opinion is without any basis. No medical papers both of OP No.3 Nursing Home and of Woodland Hospital have come before this Forum to consider that the impugned report of Dr. Ankelsaria has basis.
This is a case of medical negligence.
Negligence is the breach of duty caused by the omission to do something which a reasonable man would do or would not do.
Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the patient has suffered injury to his person or property.
The definition involves three constituents of negligence:-
- A legal duty to exercise due care;
- breach of the said duty;
- consequential damage.
Negligence has three meanings. They are:-
i) a state of mind, in which it opposed to intention;
ii) careless conduct;
iii) the breach of duty to take care.
Justice M.B. Shah has expressed his candid view on medical negligence.
In substance, the doctor has certain duties, namely (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; (c) a duty of care in the administration of the treatment. A breach of any of these duties gives a cause of action for negligence to the patient.
The following cases may be cases of apparent deficiency/negligence in service by doctors:
The doctor does not give immediate treatment when required (may be that the doctor was ‘over busy’).
The doctor does not take precaution as per the approved medical practice of giving the test does of medicines which are likely to be fatal in some case or may cause allergy.
The post-operative care/treatment is not given properly.
The surgical wound is caused at a different place then required.
Surgical instruments/mops are left inside the body.
Prescription for unnecessary pathological tests or investigations.
After the operation, septicaemia or gangrene sets in.
In this case there is allegation of the complainant that after operation septicaemia sets in the patient at Berhampore Nursing Home but the OP’s case is that the 2nd operation by Dr. Ankelsaria without controlling septicaemia as per medical science is responsible for the death of the patient Saktipada Roy.
Thus, from OP’s case it is clear that there was septiceamia.
Admittedly, the patient Saktipada Roy was admitted in Woodland Hospital, Kolkata on 14.7.07 under Dr. Ankelsaria and 2nd operation was held by him while the patient was suffering from Septicaemia with peritonitis.
In this case, admittedly, deceased Saktipada Roy, husband of the complainant was first admitted in Sadar Hospital, Berhampore on 6.7.07 with abdomen pain and was referred to NRS, MCH, Kolkata and thereafter, consulting with OP No.1 he was admitted in OP No.3, Nursing Home at Berhamore on 7.07.07 and 1st operation was held on 10.7.07 by Dr. A. Maity, Op no.2 coming from Kolkata at 12.30 P.M. and after completing operation for 2-3 hours left for Kolkata.
From the oral evidence as discussed earlier it is clear that moment after operation patient party was asked for two bottles blood, not before operation and said blood was transfused but bleeding was not stopped, again further two bottles blood was transfused , even then bleeding was not stopped. On 13.7.07 the Op No.1 in the evening expressed that the condition of the patient was critical and to be shifted to Kolkata and then the patient was admitted in Woodland Hospital on 14.7.07 in the morning at 5.45 a.m under Dr. Ankelsaria who diagnosing the patient suffering from septicaemia with peritonitis held 2nd operation on the same day to save life of the patient diagnosing suffering from septicaemia with peritonitis.
It is not disputed by the OP, that 2nd operation was held by Dr. Ankelsaria when the patient was suffering from septicaemia .
According to OP’s case there was no septicaemia in the patient at Berhampore but the 2nd operation was held with septicaemia.
Thus, according to OP septicaemia was attacked to the patient during the transit period from Berhampore to Kolkata.
There is no such evidence as well as it is not possible.
There is no specific allegation as well as iota of evidence against OP No.3 Nursing Home as to medical negligence and as such the compliant be dismissed against OP No.3.
Admittedly, the patient deceased Saktipada Roy was admitted in the Woodland on 14.7.07 under Dr. Ankeslsaria who diagnosed septicaemia with peritonitis and 2nd operation was held by him on the same day considering urgency to save the life of the patient and he was treated there up to 21.8.07 and for expensive treatment the patient was shifted to Vishudhananda Hospital, under Dr. Uday Sankar Chatterjee on 21.8.07 and died there on 01.09.2007.
The complainant has lodged no complaint against Dr. Ankelsaria of Woodland Hospital and Dr. Uday Sankar Chatterjee, Vishudhananda Hospital, Kolkata.
The OP’s case is that as per medical science operation cannot be performed without controlling and in this case 2nd operation was done by Dr. Ankeslsaria and for his negligence the patient ultimately died.
From the evidence admittedly the 2nd operation of the patient was done by Dr. Ankelsaria on the very day of admission in the Woodland Hospital diagnosing septicaemia .
Thus, it is clear that 2nd operation was done by Dr. Ankelsaria without controlling septicaemia .
The OP has examined OPW-2 Dr. Uday Sankar Chatterjee attached to Vishundhananda Hospital and the patient was admitted and treated under him in that hospital.
He has deposed in his examination-in-chief that as per medical science 2nd operation cannot be done without controlling septicaemia .
But, in his cross-examination he has deposed that he has not given any adverse report against Dr. Ankelsaria.
Also, no evidence mainly the bed head ticket as well as medical papers showing treatment of the patient in the Woodland Nursing Home as to deterioration or in other words the cause of death due to 2nd operation without controlling septicaemia have come before this Forum.
The instant complaint being not against Dr. Ankelsaria or against Dr. Uday Sankar Chatterjee and those two Hospitals namely Woodland Hospital and Vishudhananda Hospital as well as the absence of any cogent evidence, we have no scope to decide the same.
The main complaint is against OP Nos. 1&2 doctors for the negligence in the treatment including operation held upon deceased Saktipada Roy, husband of the complainant.
The complainant has sufficiently discharged her primary onus by adducing ex parte opinion as well as oral testimony duly crossed by the OP Advocate.
But, the OP No.1 who has deposed on behalf of himself and also on behalf of Op no.2 has not adduced any documents as to medical treatment relating to 1st operation and transfusion of four bottles blood to the patient at the OP No.3 Nursing Home at Berhampore where OP no.1 is attached with that nursing Home.
The OPs have failed to adduce any cogent rebuttable documentary evidence particularly medical papers showing the treatment provided to the patient.
The said medical papers are lying with the Op No.3 Nursing Home at Berhampore and both the Op Nos. 1&2 are attached with this Nursing Home.
According to the provision of Evidence Act the documents which ought to have been filed, if not filed, the adverse presumption against him is to be drawn.
In this case the Ops ought to have filed the relevant medical papers but not filed and for that adverse presumption is to be drawn against OPs.
Considering the above discussions as a whole we have no other alternative but to conclude that for the medical negligence of OP Nos. 1&2 septicaemia sets in after 1st operation upon the patient Saktipada Roy at Op No.3 Nursing Home at Berhampore.
Admittedly, 1st operation was held at Berhampore Nursing Home on 10.07.2007 and shifted to Woodland Hospital, Kolkata from Berhampore Nursing Home on 13.7.07.
Thus, the patient was admitted in OP No.3 Nursing Home for three days only since 1 st operation.
Where the patient was admitted in the Woodland Hospital for 39 days since 2nd operation on 14.7.07 to 21.08.07 and in Vishudhananda Hospital for 11 days and died there on 01.09.2007.
But, the complainant has no allegation as to medical negligence against the doctors for the above treatment in Kolkata since 2nd operation and for that we have no scope to decide the same where the same has been raised by the OPs though they have also failed to prove the same categorically.
Considering the materials on record as discussed above we have no other alternative but to conclude that septicaemia sets in the patient after 1st operation held at OP No.3 Nursing Home for the medical negligence of doctors, OP Nos. 1&2. Both the doctors OP Nos. 1&2 are jointly and severally liable for the above medical negligence ultimately causing death.
Regarding compensation the complainant has claimed Rs. 6 lacs and for payment of medical expenses for Rs.11.55 lacs along with interest @12.5 %.
The deceased husband Saktipada Roy was a permanent primary teacher and his age was 58 years reveals from his death certificate.
Further, the complainant has filed Xerox copies of appointment letter and confirmation letter dt.7.08.1975 and 09.03.1983 respectively.
For the treatment at Op no.3 Nursing Home at Berhampore the complainant has filed one voucher Rs.5, 000/- cash memos of Rs.214/- and Rs.27/- for purchasing medicines and money receipt of Rs.1650/- for pathological test. .
The complainant has filed the relevant bills and vouchers of Woodland Hospital for Rs.9, 03,911/- and of Vishudhananda Hospital for Rs.30, 080/-.
This is a case of compensation for the death of a confirmed primary teacher at the age of 58 years for medical negligence filed by the wife of the deceased-husband.
In this case the complainant has claimed compensation for Rs.6 lacs without mentioning the basis and method of assessment of compensation and also dependency has not been mentioned.
Also, the complainant has not mentioned the last pay drawn by the deceased husband.
The complainant has also prayed for payment of medical expenses for Rs. 11.55 lacs along with interest @12.5%.
Regarding medical expenses the complainant has filed bills and vouchers for medical expenses for the treatment of Woodland Hospital for Rs.9,03,911/- and for the treatment at Vishudhananda Hospital for Rs.30,080/- and for the treatment at Berhampore for Rs.6,891/- and the total of the same does not justify the claim of medical expenses for Rs.11.55 lacs.
In this case it is clear that the treatment of the deceased Saktipada Roy was held at three different places by different doctors for different periods.
Medical negligence of the OP Nos. 1&2 have been established for the treatment at OP No.3 Nursing Home at Berhampore and the said treatment was continued at two other places at Woodland Nursing Home, Kolkata for 39 days and at Vishudhananda Hospital at Kolkata for 11 days where he ultimately died.
The allegation of medical negligence in the treatment of the deceased Saktipada Roy at the above two Hospitals in Kolkata being not raised by the complainant and also the Forum being in dark in this regard we are of view that the complainant is not entitled to get the medical expenses incurred supported by vouchers for Rs.9, 03,911/- and Rs.30, 080/-. We are of view that the complainant is entitled to get Rs.6890/- towards medical expenses incurred for the negligence of OP Nos. 1&2 at OP NO.3 Nursing Home at Berhampore.
During hearing argument the lawyer for the complainant has not categorically advanced any argument regarding method of assessment of compensation in case of death for medical negligence.
Regarding compensation the settled principle is that compensation should not be treated as a punishment or reward.
The general rule of assessing damages is that it should be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value.
The Supreme Court of India has adopted the Multiplier method for assessing the damages in several cases pertaining to medical negligence.
In this case for absence of last pay drawn by the deceased Saktipada Roy and dependant, if any, and the nature and quantum of dependency and also for absence of any specific claim for assessment of compensation on the basis of Multiplier method we are of view considering the materials on record as well as facts and circumstances of the case that principle of reasonable expectation is to be considered and we find that in this case the complainant will get Rs.6900/- towards medical expenses and Rs.2 lacs as compensation and total comes to Rs.2,06,900/- and the same is to be paid by OP Nos. 1&2 equally and the case be dismissed against OP No.3.
On the basis of the above discussions as a whole we find that all the points are disposed of in favour of the complainant in part and as such the case be allowed on contest in part against the OP Nos. 1&2 and they are to pay Rs.2, 06,900/- equally i.e Rs. 1,03,450/- each to the complainant and dismissed against the OP No.3.
Hence,
Ordered
that the Consumer Complaint No. 22/2008 be and the same is hereby allowed on contest in part against the OP Nos. 1&2 and dismissed against the OP No.3.
The complainant will get Rs.2, 06,900/- from OP Nos. 1 & 2 in equal half.
There will be no order as to cost.
The OP Nos. 1&2 are directed to pay Rs.1,03,450/- each to the complainant within 2(two) months from the date of the receipt of this order, failing which the OP Nos. 1&2 are to pay Rs.100/- per day’s delay and the amount so accumulated shall be deposited in the Consumer welfare Fund.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
Member Member President
