SMT. BANDANA ROY, PRESIDENT
The gist of the complaint case is that the mother of the complainant namely Kabita Jana was taken to Remedy Diagnostic Centre at Heria for her whole USG at the advice of Dr. D.J Parua of Bhupatinagar. After such examination it was reported that gall bladder had irregular wall, infected and stones are there and suggested for further evaluation. On 23.06.2016 DR. A. K. Shee advised for immediate surgery without any further evaluation. The patient was taken to Dishan Nursing Home on 27.06.2016 where Dr. A K Shee carried the surgery of the gall bladder of the wife of the complainant. Parts of gall bladder was sent to Genix Laboratory for report the concern laboratory stated in the report that there was no evidence of any granuloma or atypia. After the operation pain in the abdomen of the patient increased. On 10.07.2016 the Dr Shee prescribed few medicines without the assurance that the pain will be relieved very soon. For reliving the pain the patient was further taken to Dr. R.N. Jana of Bhupatinagar Gramin Hospital He advised for USG of whole abdomen which was done at Remedy Diagnostic Centre. In that report the radiologist Dr. R.K. Das observed that lump formed in the right lobe of lever neer to Gall Bladder fossa and suggested for CT Scan., Upon perusal of the USG report dated 27.08.2016 Dr R N Jana advised for CT Scan of whole abdomen which was carried out at Sree Aurobinda Diagnostic & Analytical centre at Tamluk. In that C T scan report dated 29.p08.2016 Dr Aninda Sasmal observed neoplactic growth near GD fossa in the lever and related parts. Upon perusal of said report Dr. Shee referred the patient for cancer treatment. On checking the patient and perusing the reports on 03.09.2016 Dr. Durga Prasad Nanda of Kolkata advised for USG guided FNAC from GB Fossa mass which was carried out on the same day at Pulse Diagnostic Pvt ltd at Kolkata. On perusal of said report Dr. Nanda observed that it was a lost case. Without futher investigation surgery of gall bladder caused such report. It also appears that the hi8stopathology report of Genix Laboratory is not a genuine but fabricated one. Ultimately mother of the petitioner died on 25.10.2016,
It is the assertion of the complainant that due negligence of Dr. Shee in the operation of the gall bladder without conducting any further investigation, and also for the manufactured report of the Genix Laboratory, mother of the complainant expired.
Hence, the instant case with the prayers as made in the complaint petition on the allegation of deficiency of service on the part of the Ops.
The OPs appeared and contested the case by filing separate written versions.
The OP no.1 stated in the W V that on 23.06.2016 patient Kabita Jana attended his chamber with symptomatic gall bladder disease. USG report from Remedy Diagnostic Centre dated 22.06.2016 with report o Chronic calculous chorecystitics with pathological Gall bladder was shown to him. The patient was clinically correlated and evaluated by the OP no.1 and the following investigation was suggested by the OP no.1 :-
Blood for TC DC, ESR, HB%, BT and CT.
Blood for Sugar ® aUrea, Creatinine,
ECG
HIV – i/ii.
Chest X-ray PA view and
Serum Bilirubin, conjugated/unconjugated.
After perusal of all such reports, the operation was done. It is the case of the OP no1 that surgical operation is the only treatment of GB stone. There is no other alternative treatment. OP no.1 has removed all the stones along with the pathological GB. For determination of type of pathology in the gall bladder the OP no1 advised for histopathological examination (HPA) of GB. It is the case of this OP that doctor conduct surgical operation mainly on perusal of the pathological report. The report of the Ganix Laboratory and Diagnostic centre was follows :-
Ulcerated chronic cholecystitis (Slide No. GL/0107010297/2016 (that means no malignancy detected) if there was any dispute regarding the HPE report of the gall blader the concerned laboratory will be answerable. This OP admits that on further complaint of pain of the patient in spite of report GB is not visualized (H/O operation) and impression was “ A modert4 size heterogeneousluy hypoechoic SOL at right lobe of liver…..” this OP no1 referred the patient to a teaching hospital, Kolkata on 30.08.2016 without any delay. Therefore the OP no1 has taken actions based on the reports. This OP asserts that for any kind of defect in the treatment the concerned laboratory is responsible. This OP claims dismissal of the case with cost of Rs 1,00,000/- for illegally and unnecessary harassment and causing ill reputation of his practice.
In their written version the OP no1 Dishan Nursing Home has categorically denied all the allegations of the complaint. The specific case of this OP is that as per advice of doctor they got the patient admitted in their nursing home who was suggested for operation. She was given all kinds of pre-operative precautions and care and was provided all medicines as per advise of the treating doctor. This OP claims dismissal of the case with cost of Rs 1,00,000/- for illegally and unnecessary harassment and causing ill reputation of their Nursing Home.
The Genix Laboratory, OP no 1 has claimed dismissal of the case on different grounds.
It is their specific defense that they had no knowledge how and what operation was conducted upon the patient. OP no.1 only examined the gall bladder of the patient namely Kabita Jana by way of histopathology and sent report to the patient party on 10.07.2016 with the slide. This pathological laboratory is concerned with reporting of the biopsied tissue or organ in the condition it has been received from the concerned hospital/nursing home. There is no mistake or fabrication in their report as alleged by the complainant. About 4 months after removal of the gall bladder, the patient underwent the USG and upon perusal of the report dated 27.10.2016 Dr. R.N.Jana advised CT scan which was reported on 27.102016 which is not possible. Further defense of this OP is that the opinion of Dr. Durga Prasad Nanda that removal of gall bladder without carrying out further investigation has resulted in cancer of liver has got nothing to do with Ganix Laboratory. In their report they categorically stated that cut open gall bladder was received by them for examination and as such they examined the same pathologically and found no cancer was in that part. Subsequently existence of cancer at Liber has nothing to do with this OP no.3 . The biopsy report had been prepared by qualified specialist.
This OP also asserts that they are no way responsible for the death of the mother of the complainant and has prayed for dismissal of the case with exemplary cost of Rs. 1,00,000/-for causing ill reputation of the Centre and unnecessary harassment.
Now, points to be considered in this case is whether the case is maintainable and (2) whether Complainant is entitled to the relief(s) sought for by the complainant.
Decision with reasons
Both the points are taken up together for consideration for the sake of convenience.
We have carefully perused the affidavit of the complainant, the written versions, the WNA filed the parties and have heard the arguments advanced by the ld advocate of all concerned.
We have perused the medical documents and medical literature filed by both the parties.
Complaint’s case is that his mother, as per advise of Dr. DK Paria, USG of whole abdomen of his mother was carried out in Remedy Diagnostic Centre, Heria. In the report Dr. R. K. Das Radiologist observed that gall bladder had irregular wall, infected and stones are there and suggested for further evaluation. On 23.06.16 Dr A.K. Shee who is the OP no.1 in this case without making further evaluation opened for immediate surgery. Accordingly the complainant admitted his mother at Dishan Nursing Home who is the OP no. 2 of this case on 27.0616 where Dr. Shee carried the surgery of gall bladder. As per advice of the OP no. 1 the cut off gall bladder was sent to Zenix Laboratory who is the OP no. 3 in this case. Concerned laboratory in their report dated 10.07.16 stated that there is no evidence of granuloma or atypia. According to the complainant, after surgery pain of the complainant’s mother was increasing and on 10.07.16 Dr Shee prescribed few medicines with assurance that the pain would be relieved very soon. But the pain was not relieved and one Dr R N Jana of Bhupatinagar Gramin Hospital advised UGS of whole abdomen which was carried out at Remedy Diagnostic center. In its report consultant physician Dr. R.K. Das assessed that lump formed in the right lobe of lever near to Gall bladder fossa and suggested for CT scan. Upon perusal of the report of USG dated 27.08.16 Dr. R.N. Jana advised for CT scan of whole abdomen which was carried out at Sree Arubinda Diagnostic centre, Tamluk. The complainant further stated that in the report of CT scan dated 29.08.16 Dr. Aninday Sasmal observed neoplastic growth near GB fosssa in the lever and related parts. Upon perusal of CT scan report and USG report of 29.08.16 , Dr. A.K.Shee referred the patient for cancer treatment. The complainant asserts that on checking the patient and perusing the reports on 03.09.16 Dr Durga Prasad Nanda of Kolkata advised for USG guided FNAC from GB fossa mass which was carried out on the same day at Pulsa Diagnostics Pvt. Ltd at Kolkata. On perusal of said FNAC report Dr Nanda opined that it was a lost case. Without carrying further investigation Suirgery of gall bladder caused such result. According to the complainant the histopathology report of Genix Laboratory is not genuine but fabricated one and ultimately mother of the complainant died oin 25.10.16.
OP No. 2 in its written version denied all the statements made in the written complaint. According to the OP no. 1 the patient was advised by the doctor for admission in their nursing home as an indoor patient for operation as suggested and she was given all kinds of pre-operative precautions and she was also given post- operative precautions and care and was provided medicines as prescribed by the doctor. The patient being misguided has brought this case without having sufficient cause and this case is not maintainable as there was no lack of service on their part. There was no negligence on behalf of the Nursing Home.
OP No. 1 also denied the statements that without making further evaluation the doctor advised for immediate surgery of Gall Bladder because patient produced an USG report where it was clearly mentioned that the patient was suffering from chronic calculous cholecystitis with pathological GB and thereafter this OP suggested for surgery. OP no.1 admits that the patient was operated at OP no. 1 nursing home but denied that the patient was admitted in that nursing home as per his advice. This OP admits that the patient came to him on 10.07.20-16 for further treatment with histopathological examination report and OP no1 found no complication and prescribed some medicines. OP no1 also admitted that on perusal of the report of CT scan he referred the patient for treatment of cancer. It is also alleged that the complainant did not submit any death certificate from which it could be clear that what was the actual cause of death of his mother. It is mandatory if any patient dies in any medial institution , there must be a death certificate issued by the institution for causing death, according Form No. 4 , Rule 8 of Government of West Bengal. The patient had been clinically correlated and evaluated by the OP no.1 and he suggested the following tests before the operation :-
Blood for TC DC, ESR, HB%, BT and CT.
Blood for Sugar ® aUrea, Creatinine,
ECG
HIV – i/ii.
Chest X-ray PA view and
Serum Bilirubin, conjugated/unconjugated.
According to the OP no.1 there is no other alternative treatment. OP no1 removed all the stones along with pathological GB. In case of carcinoma of GB only 8% - 10% are diagnosed pre-operatively Majority of the gall bladder carcinoma are not diagnosed before surgery. According to the OP no.1 he advised for histopatholoical examination of GB. According to the OP no1 he conducted the operation only on perusal of the report, produced by the patient party. This OP stated that gall bladder of the mother of the complainant and the investigations were carried out by the OP no. 2 and the report available from the OP no. 3. He stated that ulcerated chronic cholecystitis slide No. GL/01/0107010297/2016 meant ‘no malignancy detected’’. If there was any dispute regarding the HPE report of the gall bladder the Genix Lab. Will be answerable for that. OP NO. 1 stated that he has treated the patient according to the HPE report of the Gall bladder . when patient complaint of further pain in abdomen and USG dated 27.08.16 suggested GB is not visualized (H/O operation) and impression was ‘A moderate size heterogeneously hypoechoic SOL at right lobe of liver…..:” and CT scan dated 29.08.16 suggests neoplastic mass this OP no.1 referred the patient to teaching hospital , Kolkata on 30.08.16 without any delay. Therefore the OP no1 took action according to the report available. OP no.1 stated that for any dispute in the report the OP no1 could not be blamed. It is the responsibility of the centre who had done the report. In Kolkata they had done USG guided FNAC report . He further referred the reports with slide Nos. According to the OP no1 there is debate between two pathologists. The has no role in this debate. The role of a surgeon was whether he had taken the action according to the report available or not. According to the OP no. 1 complainant being misguided has brought this case.
OP No. 3 also alleged that pathological laboratory is concerned with the reporting of the biopsied tissue or organ, in the condition by which it has been received from the surgeon /hospital or nursing home responsible for the operative removal of the same. The histology report was not fabricated and about four months after removal of the gall bladder, the patient underwent USG and on perusal of the report dated 27.10.16 Dr. R N Jana advised CT Scan of USG dated 29.08.16, which is not possible. OP no. 3 further alleged that the report opinion of Dr. Durga Prasad Nanda that removal of GB without further investigation has resulted in cancer of the liver has got nothing do so with the OP no.3. OP no 3 has stated that the biopsy report has been prepared by experienced specialist.
Ld advocate for the complainant argued that apparently the OPs tried to show their difference by giving three separate written versions and Dr. A K Shee ie the OP no.1 shouldered all his liability by suggesting that the dispute lies in the report submitted by Zenix Laboratory ie the OP no.3 but their bond comes to light when they appointed one Ld. Counsel to defend them and submitted documents jointly. Even the OP no. 3 took the responsibility to defend the Nursing Home OP no.2 and claimed Rs. 1,00,000/- for harassment and amputating the goodwill of the Nursing Home. OP No. 2 admitted that Kabita Jana was admitted as an indoor patient in their nursing home as per advice of the doctor. According to the Ld. Advocate for the complainant, considering the case of the complainant these factors would suggest close relationship between the OPs.
It is a fact that on 23.06.2016 the OP no.1 without making further evaluation opined for immediate surgery of the gall bladder of the patient.
We have perused the UISG report of whole abdomen of Kabita Jana dated 22.06.2016. It appears that it was detected that gall bladder was severely contracted with asymmetrically thickened wall. Multiple calculi of small to moderate size are seen in lumen, largest one measure 11.7 mm. No pericholecystic fluid collection is seen. Liver GB interface are indistinct. Impression was chronic calculus cholecystitis with asymmetrical GB wall thickening and indistinct liver – GB interface…CECT abdomen suggested for further evaluation. Right sided diffuse colitis.
As per advice of Dr. Shee the patient was admitted in Dishan Nursing Home on 27.06.2016 where the OP no.1 carried the Surgery of gall bladder. As per advice of Dr AK Shee the OP no.2 send the cut open gall bladder to the OP no3 at Kolkata. The concerned laboratory in their examination dated 10.07.2016 stated that there was no evidence of any granuloma or atypia., It appears that there is no evidence that the OP no1 took consent of the patient party before the surgery. There is no evidence that the OP no.1 did any further evaluation which was suggested on22.06.16 on examination of the USG of whole abdomen of Kabita Jana. It is alleged that after the surgery the pain of the patient was increasing day by day. On 10.07.2016 the OP no.1 prescribed few medicines with the assurance that pain will be relieved very soon. The copy of the prescriptions have been filed but all the prescriptions are illegible. It is alleged by the complainant that as pain was increasing day by day, the patient was examined by Dr N. Jana of Bhupatinagar Gramin Hospital. He again advised for USG of whole abdomen and it was carried out at Remedy Diagnostic Centre. The Remedy Diagnostic centre have not been made party to this case. But in their report Dr Radiologist R.N.Das observed that lump formed in right lobe of liver near to gall bladder fossa and suggested for CT Scan. CT Scan was carried out at Arabinda Diagnostic & Analytical centre, Tamluk. In the report of CT Scan dated 29.08.16 Dr. Anindya Sasmal observed neoplastic growth near GB fossa in the lever and related parts. Upon perusing the CT scan report and USG report on 29.08.16 Dr. AK Shee referred the patient for cancer treatment One Dr DP Nanda of Kolkata advised for USG guided FNAC from GB fossa mass which was carried out on the same day at Paul ‘s Diagnostics Pvt. Ltd. The complainant also did not make the Paul’s Diagnostic Centre party in this case. According to the complainant Dr. Nanda opied that it was a lost case and immediate surgery of the gall bladder, without further evaluation, caused such result. Ultimately Kabita Jana expired on 25.10.16. .
Ld. Advocate for the complainant forcefully argued that wrong treatment and surgery by Dr AK Shee caused untimely death of his mother Kabita Jana. There was gross negligence on the part of the OP Nos. 2 and 3 and his late mother was the only earning member of his family as she was working as a Pradhan Sahayika of Bhupatinagar Sishu Siksha Kendra under Sarbo Siksha Mission.
The complainant claimed Rs. 1,20,000/- for the treatment of his late mother.
According to the Ld advocate for the complainant neither the OP no 2 nor OP no 3 can produce any scrap of paper showing that they have received the specimen of gall bladder from the patient party. It is also argued that neither the OP no. 2 or 3 is able to produce a scrap of paper showing that they have given the slide with the report to the patient party on 10.07.16.
Ld advocate for the complainant argued that OP no. 3 tried to shoulder all their liability by saying that they received cut open gall bladder and no cancer was found in that part. They have carried out the examination and gave report on 10.07.16. On 10.07.16 the patient complained to Dr. Shee that her pain was increasing after the operation. It is also argued that it is the duty of the OP no. 3 to establish that clinically it is possible and co – relate those two reports.
We have perused the medical literature of Principles of Surgery by F Charles Brunicardi. It speaks signs and symptoms of carcinoma of the gallbladder are generally indistinguishable from those associated with chlecystitis and cholelithiasis. More than half of gallbladder cancers are not diagnosed before surgery. Surgery remains the only curative option for gallbladder cancer as well as for cholangiocarcinoma. There are no proven effective option for adjuvant radiation or chemotherapy for patients with gallbladder cancer.
We have also perused the literature of Survery - Basic Science andClinical Evidence wherein it has been stated – Cancer of the gallbladder is a difficult diagnosis to make as only 8% to 10% of these malignancies are diagnosed preoperatively. The diagnostic challenge is largely because there are no signs or symptoms specific to gallbladder cancer.
We have applied our considered thought over the matter and we are of the view that whatever may be the literature, the report of USG dated 22.06.16 of Remedy Diagnostic Centre suggested for further evaluation before surgery but the OP no1 did not wait and operated the gallbladder. Apparently it is wrong decision. The crux of the present matter is whether the OPs were responsible for any deficiency of the treatment of the patient which resulted into death of the patient. We have already stated before that there was two mistakes on the part of the OP no.1., (1) he did not take consent of the patient party before the immediate surgery of the gallbladder and (2) he did not evaluate the matter after perusing the USG report of whole abdomen of the patient which suggested further evaluation. As a result for immediate surgery of the gall bladder , the cut portion has become cancerous and it has been spread and the patient ultimately died within a very short period. The death certificate speaks that the patient was 56 years old at the time of her death. She was not at the age of death.
To prove skill of the OP No.1 a copy of advertisement has been filed by the OP no1 which shows the qualifications he had, but this advertisement is not only the scale to measure the skill of the doctor concerned.
It appears that there is no medical record to show the aspect of the management of the patient. In several literatures and judgments the Hon’ble Supreme Court discussed about “Negligence”. It is an omission to do something which a reasonable and prudent person guided by the considerations, which ordinarily regulate human affairs would do or doing something, which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. It is difficult to state with precision, any mathematically exact formula, by which negligence or lack of it can be infallibly measured, in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence would normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court, In a given case, even not doing what one was ought to do, can constitute negligence. The Hon’ble Supreme Court of India and this Commission defined the elements of medical negligence in the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and anr. (1969) 1 SCR 206 observed that “ a person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient, owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”
The complainant has prayed for damage of Rs. 11,20,000/- and OP no.1 should pay Rs 8.00,000/- and OP No 2 and OP no. 3 to pay Rs 1,60,000/- each to the complainant.
After careful consideration of the medial papers and documents on record we do not find that there was any breach on the part of the OP no. 2 or OP No. 3 . Considering the medical papers and submission made by the Ld. Advocate for the complainant as well as for the OPs, we are of the view that Rs 1,50,000/- in total, will be sufficient as compensation against the OP No.1 only.
Both the points are answered accordingly.
Hence, it is
O R D E R E D
That CC/565 of 2017 be and the same is allowed on contest in part and dismissed on contest against the OP. No. 2 and OP no. 3.
The OP No.1 is directed to pay a sum of Rs. 1,50,000/- to the complainant for the loss and mental agony due to death of his mother within one month from the date of this order failing which it shall carry interest of Rs. 9% per annum till the time of final payment. If the OP no.1 fails to pay the amount by the said time then the complainant will be at liberty to put this order into execution for realization of all the dues.
Let copy of the judgment be supplied to all the parties free of cost.
