Hon’ble Mr. Ajeya Matilal, Presiding Member
This is a case under section 17 read with section 12 of Consumer Protection Act, 1986 praying for direction upon the Opposite Parties for Compensation of Rs.90,00,000/- (Rupees Ninety Lakhs only) and Rs.1,00,000/- (Rupees One Lakh only) for Litigation Cost.
Fact of the case is in short like that one Tirthankar Dutta Chaudhuri, aged about 31 years being the son of the Complainant, had a person of sound health. He was engaged in I.T. Sector and suddenly one day he experienced back pain in lower abdomen and left leg. Then he consulted a Doctor for treatment. The patient had no history of back pain. On 04.03.2011 he felt the same for the first time. He experienced back pain while he lifted a gas cylinder on 01.03.2011. The delayed pain started on 04.03.2011. When a tablet namely, Nimesulide was given the pain got suppressed till 09.03.2011. On 09.03.2011 Tirthankar consulted Dr. S. Purkait, who recorded the indications as pain at left leg, Lumber, Abdomen etc. He prescribed some medicines which did not give any relief. On 13.03.2011 the patient consulted Dr. N. Mukherjee, M.D, Block-B, Bangur Avenue, Kolkata – 700055 being general physician advised X-ray of LS Spine and AP/Lat views and KUB region. X-ray impression was normal study and NAD. Accordingly, he was advised 7 days’ rest and some exercises. Due to exercise pain increased. Thereafter the patient consulted Dr. Sanjoy Chatterjee, Consultant & Head (Physical Medicine and Rehabilitation), Apollo Gleneagles Hospital, 58, Canal Circular Road, Kolkata – 700054, who is a specialist in Pain Management. Dr. Chatterjee was consulted on 21.03.2011 and 23.03.2011. The Doctor suspected only Radicular back pain and did not clinically try to eliminate other possible causes of back pain. He did not advise any pathological or instrumental tests other than MRI of L. S. Spine respectively (Cf. Encl.:03). MRI Report impression was “Early lumber degenerative disc disease with mild bulge of L4-L5 DISC” (Cf. Encl.:04). On examining MRI plates and report Dr. Chatterjee prescribed NSAIDs and exercises. However, attempts to initiate exercise under qualified physiotherapist failed, because increased pain in the left back and leg was reduced by pain killers only. It was reported to the Doctor concerned through email and telephone that instead of reducing the pain it was moving towards the spine. But the Doctor replied that it was a sign of recovery and advised him to continue exercise. The patient followed the treatment of the Doctor till 31.03.2011 without getting any relief. The patient was panicked as the Doctor had planned to proceed to Ozone Discectomy (at the point of bulge). But as the pain sustained so, the patient party wanted to consult another Doctor. On 31.03.2011 the patient consulted Dr. Mouli Madhab Ghatak, M.D, Consultant Physiatrist cum Neuro orthopaedic & Rheumatological Rehabilitationist, Medical Rehabilitation Centre, 7, Biresh Guha Street, Kolkata – 700017, specialist in Pain Management. He also diagnosed the Radical Pain and prescribed Physiotherapies e.g. SWD and TENS along with some medicines including a muscle relaxant (150 mg/day) (Nucoxia MR). (Cf. Encl.:05). It causes temporary relief to the patient as far as his back pain is concerned. But the pain in the leg persisted even after 5 sittings of SWD and TENS. Leg pain seemed to increase every time after the TENS even after 6 sittings though back pain remained a bit reduced. Dr. Ghatak advised postponing TENS after 7 sittings. Net effect of these 7 days’ treatment was that although intensity of the pain decreased to some extent, a painful point remained in the middle of the outer side of the left thigh that was quite sensitive to touch and pressure. This was brought to Doctor’s notice, but he did not attribute any importance to it. A transient pain in the upper side of the left back appeared after withdrawal of SWD. Dr. Ghatak also talked about possibility of applying Ozone Therapy, if the pain persisted. Thereafter the patient consulted Prof. P. K. Mitra, BPT, MIAP, SRP (Eng.), MRSP (UK), Fellow of British Council, Glasgow, Consultant Physiotherapist (also a Member of the Faculty of National Institute of Orthopedically Handicapped, Bonhooghly of Kolkata) on 07.04.2011 evening. On close examination he spotted a dimple in the painful area of the thigh, earlier reported to Dr. Ghatak, and opined that this could be due to compression of nerves in that area or some crack in the bone there. He advised X-ray for any crack in the femur bone. No abnormality was found in the digital X-ray report. Doctor advised LWD to L femur mid. for 7 days. (Cf. Encl.:06).The result was that after first sitting it appeared that depression of the dimple was reduced and pain was minimised at the dimple point. This disappearance of dimple encouraged the patient to continue to visit the Physiotherapist. On 08.04.2011 Prof. Mitra further examined the patient by asking him to bend forward to touch feet, then both sidewise and finally backward. At that point of time the patient did not feel any strain or pain at the back. Prof. Mitra proclaimed that Tirthankar did not have any problem in spine, otherwise he would not have been able to bend to different directions without feeling pain. But from 11.00 P.M. onwards, pain resurfaced with swelling of left abdomen and the pain became unbearable until Tablet of Myoril Plus 8 mg and cold compress was applied on Dr. Mitra’s advice at 8.00 A.M. next morning. According to the Complainant the recovery was achieved by earlier treatments. Unfortunately, the earlier treatment was discontinued by the adventurous approach of the Physiotherapist as the patient was earlier advised by the other physicians to avoid front bending etc.
So, the Complainant was not in a position to report Dr. Ghatak after violation of his instructions for avoiding front bending. Dr. (Prof.) Mitra invited then to visit again for further consultation.
It is alleged in the Complaint that the pain was for due to compression of the damaged kidney as it used to recur during exercise earlier.
The patient was examined by Dr. Sourav Banerjee, M.D. (Ortho). Dr. Banerjee studied MRI plates. It seemed to him that he had some doubts about the report and mentioned indications as “L4-L5 bulge while adding some of his own findings from the plates”. He advised for a fresh MRI.
The fresh MRI was done in a comparatively low profiled MRI Centre and the report indicated NAD.
The technicians advised the patient party for USG of the patient. But neither the Radiologist, nor the technicians had highly advanced MRI Centre at Apollo Gleneagles Heart Centre scared to bring this phenomena to the notice of the patient party. Then Dr. Indrajit Sardar of Nightingale Hospital at Shakespeare Sarani prescribed a rather high dose of a muscle relaxant (450 mg/day) compared to (150 mg/day) by earlier physicians. After following the prescription original pain in the lower back (with slight swelling), mid back and left side of abdomen reappeared. The patient felt extreme uneasiness, vomiting tendency, severe pain and restlessness. The relief provided by the Doctor concerned did not exist for not more than four hours after a tablet of hyfenac or combiflam was taken. Dr. Sarkar also went out of town and could not be consulted again on 19.04.2011.
According to the Complainant the Doctor was confused. At the request of the patient party, the Dr. reluctantly advised the patient to go for Ultrasonography (USG) of the whole abdomen, which was done on 20.04.2011. The patient party consulted Dr. P. Moulik along with USG report. The Doctor concerned advised some blood and urine tests without giving any emphasis on the seriousness of the USG report. Then the patient party consulted Dr. Kartik Saha, M.D., Urologist on 21.04.2011. The patient was admitted to Sanjivani Multispeciality Hospital on 22.04.2011 morning for CT Scan of the chest and abdomen and subsequent FNAC test revealed spreading of the disease to the lungs and indicated malignancy. After FNAC test condition of the patient deteriorated. On confirmation of malignant cancer by Oncologist Dr. Subir Ganguly, the patient was shifted for treatment under an Oncologist Dr. Saikat Sarkar of Arogya Maternity Nursing Home, 71, Tollygunge Circular Road, Kolkata on 24.04.2011. His treatment helped the patient to become stable enough to be shifted to Tata Medical Hospital, Mumbai on 27.04.2011.
The condition of the patient gradually deteriorated including breathing problems and falling Oxygen retention capacity with spreading of Cancer to the lungs and accumulation of Thromboses in arteries. Bones were seemed to be affected as Calcium released in the blood increased rapidly.
During his last four days the pain increased. Subsequently, the victim breathed his last on 08.05.2011 at 10.15 A.M.
It is alleged that the Doctors misguided the patient party by paying attention only on the images of the Spinal Cord in the Lumber region. As per Dr. Sanjay Chatterjee’s report, the images of the two kidneys were ignored, which were different in shape, size and texture.
According to the Complainant, MRI was the most appropriate test for detecting the problems of kidneys. The Urologist and the Oncologist, who took charge of the patient in the final stage, expressed their dismay on the role of the MRI team in this respect.
According to the Complainant, about 40 to 60% of normal people having no back pain may show bulges on their MRI Plates.
So, disc bulges on MRI does not always indicate a problem with the disc. Dr. Chatterjee advised physical exercises that were applied under expert physiotherapists, but unfortunately instead of any distinct relief the pain increased. The patient emailed the Doctor complaining that pain was moving upward, but in reply, the Doctor emailed that it was sign of process of recovery and advised him to continue with such exercise. But such attempts to continue exercise increased pain. Dr. Chatterjee had a plan to apply Ozone Discectomy, if the pain persisted. But such process is in trial stage in Europe and yet to get approval of FDA in USA. The Doctor made the patient panicky by restraining his postures and life style, such as avoiding front bending, weight lifting, relaxed sitting etc. But he was allowed to perform normal activities, which later were prohibited by the Doctors.
Dr. M. M. Ghatak, M.D, Medical Rehabilitation Centre TRA Hospital, 7, Biresh Guha Street, Kolkata – 700 017 also studied the MRI plates and like Dr. Chatterjee he concentrated his attention on the Spinal Cord, ignoring the kidney images, even though no neuro deficit was observed, only the mode of treatment was somewhat changed.
Dr. Ghatak advised no pathological test. The physiotherapist prescribed for SWD and TENS initially for 7 sittings. The former gave the patient temporary relief, but the latter did not have any effect, especially, in certain area of left thigh. Later it had been advised to extend the therapy for 10 sittings. When the patient complained that physiotherapy did not have any positive effect, Dr. Ghatak advised him to continue the therapy for 10 sittings more. He also suggested that if it failed after 10 sittings, he would go to Dr. Chatterjee for Ozone discectomy. But the patient party ran away from him to avoid any internal injury to the spinal cord. Dr. Ghatak also suggested the patient to use a special type of chair, but the aforesaid chair was not available.
Dr. Indrajit Sardar is a specialist for arthritis, back pain, bone cancer, club foot etc. Dr. Sardar did not go through the treatment details, but he only asked for the last prescription. He examined the MRI plates against light, but overlooked the series of kidney images like other doctors. The Doctor found SLR full, no n.v. deficit etc. But unfortunately, he continued the treatment for slip disc. The muscle relaxants did not decrease the problems. Although the Doctor indicated the chronic pain, but he refused to prescribe any painkiller. Due to high dose of muscle relaxants the patient started vomiting. Only using very hot pads gave him some reliefs.
At the request of the patient party, the Doctor agreed to advice for an Ultrasonography of the whole abdomen. This test finally revealed real problem and the defect in damaged kidney could have been detected 7 weeks ago by going through MRI plates carefully.
According to the Complainant, the patient died without getting any proper treatment.
The patient was talented being a high salaried person.
So, the patient prayed for compensation of Rs.90,00,000/- (Rupees Ninety Lakhs only) and legal cost of Rs.1,00,000/- (Rupees One Lakh only).
Opposite Parties Nos.1, 2, 3, 4 & 5 of the case contested the case by filing Written Version denying material allegations of the claim petition. According to them, they discharged their duties as per established procedure properly and there was no negligence on their part.
For proper adjudication of the disputes between the parties following points are required to be considered:-
- Whether the case is maintainable?
- Whether the claimant has any cause of action to file the case?
- Whether the Opposite Parties were negligent?
- Whether the Complainant is entitled to relief as prayed for?
- Whether the Complainant is entitled to other reliefs?
Decisions with reasons
All the points are taken together for the sake of convenience.
Perused the evidence on affidavit adduced by the parties and their cross-examinations.
We have gone through the report of the Registrar, West Bengal Medical Council. The particulars of the illness of the patient and his treatment made by Doctors concerned have been categorically mentioned in the report.
It appears from the report that Dr. Indrajit Sardar examined the patient on two occasions. The clinical judgment and investigations advised by Dr. Sardar provided the clue of illness for the first time.
It appears from the report that the inability to arrive at a correct diagnosis after following the standard protocol of clinical medicine is not negligence. In the last portion of the report it has been stated,
“Final Conclusion:
As such,1. Dr. Sanjay Chatterjee, Dr. Mouli Madhab Ghatak and Dr. Indrajit Sardar may be exonerated as there were no negligence on their part.
2. However, the comment from the two radiologists (Dr. Anup Bhargav & Dr. Subhamoy Nag) that they are to examine only the parts which the clinician have asked for without paying any attention to the surrounding structures in contrary to the opinion of the expert in the field.
The member of the Council, at its meeting dated 20.09.2017 considered the report of the concerned Penal & Ethical Cases Committee and exonerated Dr. Sanjay Chatterjee, Dr. Mouli Madhab Ghatak and Dr. Indrajit Sardar for their alleged inability to arrive at correct diagnosis after following the standard protocol of clinical medicine since such a failure cannot be considered as a negligence.
As regards the observation of the Penal & Ethical Cases Committee in so far as the explanation of Dr. Anup Bhargav and Dr. Subhamay Nag that they are to examine only the parts which the clinician have asked for without paying any attention to the surrounding structures, the Council observed that through the claim could not be a reasonable one – as observed by the Expert – the said practice is generally followed and, therefore, cannot be construed to be a negligence on the part of the concerned Radiologists.
Keeping the above in view, the Council decided to close the case with intimation to all concerned.”
In support of concentration the Complainant referred to the following decisions:
- 2021(1) CPR 208 (NCDRC);
- 1995 (2) CPJ 165 (Mah. SCDRC);
- 1995 (3) CPJ 227:1995 (1) CPR 835 etc.;
- 2005 (2) CPR 522 (Ori. SCDRC);
- 2011 (4) CPJ 69 (NCDRC);
- 2013 (2) CPJ 456 (NCDRC); [In this case application of harmful treatment including physiotherapies were apparent];
- 2006 (4) CPJ 158 (Raj. SCDRC);
- 2008 (4) CPJ 230: 2008 (4) CPR 310 (NCDRC);
- 2008 (1) CPJ 432: 2008 CTJ 456 (NCDRC).
According to the Complainant, the whole group of physicians, concerned with specialization in different branches of Medical Science, was responsible leading to fatal end of the son of the Complainant due to negligence on their part.
The Complainant did not challenge the findings of the report submitted by the Registrar, West Bengal Medical Council before any Authority.
Ld. Advocate for the Opposite Parties referred several decisions of different Courts/Consumer Commission reported in decisions of Hon’ble Supreme Court reported in Civil Appeal No.1385 of 2001 dated 10.02.2010. It was observed in the decision that when a patient was operated for removal of abdominal tumor by adopting best procedure and the pancreas of the patient was slightly damaged and the death of patient after six months, there was no medical negligence.
The Opposite Parties also referred another decision of Hon’ble Supreme Court: (2005) 6 Supreme Court Cases 1: 2005 Supreme Court Cases (Cri) 1369, wherein the Hon’ble Apex Court came to a conclusion to the effect that when the death of patient was due to a direct result of rash and negligent act of the accused then that act must be the proximate and efficient cause without intervention of another’s negligence; it must be the causa causans. Although this is not a case under section 304A of the Indian Penal Code, but the principles of law are applicable in the present case.
In the case of Syad Akbar vs. State of Karnataka, (1980) 1 SCC 30: 1980 SCC (Cri) 59 and Krishnan vs. State of Kerala, (1996) 10 SCC 508: 1996 SCC (Cri) 1375, it is observed,
“Professional negligence
In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or as skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100%, for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.”
As per Black’ Law Dictionary, 7th Edition,
“The jurisprudential concept of negligence defies any precise definition. In current forensic speech, negligence has three meanings. They are (i) a state of mind, in which it is opposed to intention: (ii) careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings.”
The Complaint Case is that the Opposite Parties/Doctors concerned were negligent in discharging their duties. But the Opposite Parties did not adduce any medical evidence to the effect that the doctors concerned were negligent in such a manner. We have discussed in details of the report of the medical expert committee, where it has been clarified that the Doctors were not negligent. That report was not challenged by the Complainant before any Forum.
So, in view of the factual scenario of the case pleading and evidence given by the parties, reports of medical experts and position of law cited above, we are of the view that the Opposite Parties were not negligent in discharging their duties, there are no cause of action to file the case and the Complainants were not entitled to get any relief or other reliefs, as prayed for and obviously, the case is also not maintainable.
All the points are decided accordingly against the Complainant answering in negative.
Hence it is
ORDERED
The Consumer Complaint Case No.52 of 2013 is dismissed against the Opposite Parties, but without any cost.
Let a copy of this Judgment be supplied to the parties free of cost.
