HON’BLE SUDIP NIYOGI PRESIDENT FACTS By making an allegation of gross negligence and wrong treatment of Prasenjit Sanpui, 47 years of age- an employee of Jadavpur University, Salt Lake Campus against OP No.1 & 2, the Complainant, who is the wife of said Prasenjit Sanpui, filed this complaint against the OPs. According to Complainant on 31.07.2020, her husband who was suffering from mild fever with respiratory problem, was taken into Ruby General Hospital (herein OP No.2) where Dr. Arindam Roy Chowdhury (i.e. OP No.1) checked him and prescribed some medicines for five days and advised him to stay in a separate room. OP No.1 also advised for HRCT chest which subsequently revealed no symptom of Covid. Thereafter, as the said patient was suffering from breathing problem since the morning of 07.08.2020, the Complainant and her father-in-law took him again to the outdoor department of OP No.2 hospital where OP No.1 on going through the report told them that her husband had some infections in his lungs which was not very critical. However, following the advice of OP No.1, her husband got admitted to the said hospital. According to Complainant, OP No.1 had asked her whether they had any health insurance card. and also stated that it was a matter of two to three days during which the whole body of the said patient would be checked up. After coming back home in the night of 07.08.2020, the Complainant got a phone call at about 12:00 hrs. from the hospital, informing her that RX. Remdesivir – 91 injection was pushed to her husband by OP No.1. Subsequently, in the intervening night of 07.08.2020 & 08.08.2020, the Complainant was informed that the organs of her husband were gradually becoming inactive and he was shifted to ventilation. During 08.08.2020 to 11.08.2020, the hospital authority did not allow the Complainant or her relations to see her husband. On 12.08.2020, she was allowed to see her husband and at that time his condition was so serious, that any moment he could die. She also stated that the OPs advised her to transfer her husband to any other hospital immediately, because OP No.2 hospital had no instrument which was needed for the treatment of her husband and ultimately she came to know her husband expired on 13.08.2020 at 4:05 p.m. from one nursing staff of the hospital. The Complainant suspected that due to wrong treatment, her husband died. She paid OP No.1 & 2 Rs.3,00,000/- from Mediclaim and a cash of Rs.1,28,639/- in connection with the treatment of her husband. But despite that fact, due to wrong treatment and gross negligence on the part of OP No.1 & 2, the life of her husband could not be saved. Complainant also alleged unfair trade practice and deficiency in service against both OP No.1 & 2. She prayed for Rs.50,00,000/- from OP No.1 & 2 as compensation for the death of her husband and Rs.50,000/- for her mental agony and Rs.20,000/- for cost of litigation. All the three OPs contested the case by filing their respective written version and also adducing evidence. They denied all the allegations made by the Complainant against them. Both OP No.1 & 2 contended that there was no negligence in the treatment of the husband of the Complainant and all the treatment was made following standard medical protocol. They prayed for dismissal of the complaint. Besides filing of evidence, OPs also filed questionnaires to which replies were given by the Complainant. On behalf of the Complainant, no questionnaire was raised, despite being given opportunity to do so. All the parties also filed their written argument. POINTS FOR CONSIDERATION - Is the instant complaint maintainable?
- Was there gross negligence and wrong treatment of the deceased on the part of OP No.1 & 2 as alleged?
- Was there any unfair trade practice and or deficiency in service as alleged against OP No.1 & 2?
- Is the Complainant entitled to any relief(s) as prayed for in this case?
FINDINGS All the points are taken up together for convenience. Complainant filed the instant complaint making certain allegations of medical negligence and wrong treatment etc. against the OPs in connection with the treatment of her husband, who ultimately died at OP No.2 hospital. Considering the nature of the case, the instant complaint is found to be maintainable. Complainant did not make, in fact, any allegation against OP No.3. She only stated in her complaint that she had informed the matter to West Bengal Medical Council for proper reliefs but without any result. According to OP no.3, Complainant had lodged a complainant before op No.3,but as it was not in proper manner, she was asked to remove the defects, but she did not do so and instesd filed this complaint making OP No.3 a party to this case. However, it is found that no specific allegation was made against OP No.3, nor sought any relief from them. Complainant in her written argument like in her petition of complaint and evidence held Opposite Party No. 1 and 2 responsible for the death of her husband. She alleged against both of them for their negligence and wrong treatment. She alleged that Remdesivir injection was given to her husband without their consent. She also alleged that they were not allowed to see her husband by the hospital authority as her husband was put to ventilator from 08/08/2020 to 11/08/2020. As against this, both the Opposite Parties No. 1 and 2 strongly denied the allegations. In his written argument, Opposite Party No. 1 claimed that after check-up of the patient (complainant’s husband- Prasenjit Sanpui) on 31/07/2020 at Opposite Party No. 2- Hospital, Opposite Party No. 1 advised medications and also to undergo HRCT chest and Covid-19 RTPCR test as per medical guidelines. On that day, he was also warned about respiratory distress. There was no significant development of pneumonia-congestion reflecting lungs involvement of less than 25 %. Thereafter, the said patient visited the hospital on 07/08/2020 to consult Opposite Party No. 1. As there was no follow-up visit in between the date of two visits, this Opposite Party No. 1 had no access to the said patient. When on 07/08/2020, he visited the hospital with a deteriorating condition, he was admitted to the hospital. The patient was all through struggling to maintain proper saturation and had to be ventilated and considering the Covid- 19 peak time, they did not make any delay in giving treatment. According to the Opposite Parties, the past histories of the patient were hypertension, diabetes, mellites, IHD, Post- PTCA (cardiac stenting) as comorbidities existing with clinical condition. According to Opposite Party No. 1, the treatment was given to the patient following the standard medical protocol and guidelines. In the written argument, Opposite Party No. 2 also denied the allegations of the complainant. The medical papers of the patient on 31/07/2020 revealed that on that day her main complain was fever with Blood Pressure- 130/80 Pulse rate 92/ min., Temperature- 97.2 degree F and SpO2- 97%. Having found no acute initial symptoms, Opposite Party No. 1 advised medications- tablet: Azithral 500 for 5 days and Doxycycling 100 for 5 days. He advised him to undergo HCRT chest and Covid-19 RTPCR test. He also advised him isolation at home and warned him about respiratory distress by writing Swaskosto in Bengali on the prescription. According to Opposite Party No. 1 as stated in his written argument, on that day he did not find any significant development of Pneumonia or congestion reflecting lungs involvement of less than 25%. Later, HRCT chest was done but no symptom of Covid was found. As regards the check-up of the patient and medication advised by Opposite Party No. 1 on 31/07/2020, in fact, there was no complain. Thereafter, the patient was brought to Opposite Party No. 2- Hospital on 07/08/2020 at about 12:05 P.M with a complain of fever for 8 days and shortness of breath for 2 days as revealed by the Admission Notice in Emergency. He was checked up by Dr. Indranil Mitra and it was found Pulse rate- 135/min., Temperature- 100.2 degree F, CBS- 147 mg/dl, BP- 100/70 mm/hg, RR-40/min. and SpO2- 67` indicating a low saturation. It is further found that he had been suffering from hypertension, diabetes, Post-PTCA (Cardiac stenting implanted) IHD. Lower respiratory contact infection was diagnosed. So, the condition of the patient was worse and on that day according to the Opposite Parties, following the critical condition, he was advised for Admission. Several investigations were also prescribed and accordingly, he was admitted under Opposite Party No. 1 and put on ventilator with the consent of the patient party. It is further found that during treatment, Remdesivir injection was also administered. The Treatment Sheets produced on behalf of the Opposite Parties also revealed the patient was diagnosed with pneumonia type-1 respiratory failure with respiratory rate of 40/min. Though, complainant alleged that Remdesivir injection was administered without their consent but according to the Opposite Parties, the consent was obtained through mobile phone No. 918910628725 of the patient party. Opposite Parties also produced Consent Forms of the patient party. During treatment, it is found that multi-disciplinary opinion also was taken including cardiologist and pulmonologist. The Treatment Sheet revealed some writing in Bengali which indicated the claim of the Opposite Parties that the patient party was informed by writing in Bengali and they were also briefed through medical board involving the brother, uncle and brother-in-law etc. of the patient who also put their signatures in the briefing form on 12/08/2020. So, the allegations of the complainant that they were not informed about the condition of the patient and / or that they were not allowed to see him are not correct. In this connection, one should not be unmindful that the aforesaid incident occurred during the peak time of Covid-19 in 2020. So, the hospital authority was also under obligation to obey all the Covid-19 protocols issued by the concerned department. Now, what we find after 31/07/2020, the patient was taken to Opposite Party No. 2- Hospital on 07/08/2020 when he was suffering from breathing problem as admitted by the complainant in her petition of complaint. We have seen and discussed above about the condition of the patient when he was brought to the hospital on 07/08/2020. Opposite Party No. 1, in fact, did not have knowledge as to what happened to the patient or how he behaved during the period from 01/08/2020 to 31/08/2020 before he was taken to the hospital as Opposite Party No. 1 had no access to that patient, nor any communication was made to him by the patient party. So, for deteriorating condition of the patient, doctor cannot be blamed. Moreover, we find, to the query No. 27 of Opposite Party No. 1 as to what prevented the complainant from bringing the patient to the hospital prior to 07/08/2020, when they claimed that the patient had fever for 8 days and respiratory distress for 2 days, the complainant did not give any answer barring only claiming the question as immaterial and unnecessary. We further find in her reply to query No. 32 of Opposite Party No. 1 as to what specific wrong treatment alleged by her with documents, she stated that the prescriptions, medicines and injections administered on the patient are the documents/evidence of wrong treatment. It is found that the said patient died on 13/08/2020 and the cause of his death is said to be cardiac-respiratory failure, pneumonia, multi-focal acute lungs injury/ARDS, IHD (Post-PTCA). According to Opposite Party No. 1, the said patient was so ill that after his arrival to the Emergency department, he had to be transferred to ICU. As from the very beginning, his lungs condition and resultant lack of oxygen in the body was so severe that within a span of approximately 12 hrs. his breathing support had to be escalated from 6 liters oxygen to high flow oxygen with BiPAP to ventilator. The Treatment Sheet revealed that after the patient was admitted on 07/08/2020, on 08/08/2020 Tocilizumab/Remdesivir was prescribed and also sought consent of the patient party. According to the Opposite Parties, they got the consent from the complainant who is the wife of the patient through SMS on her mobile. According to Opposite Party No. 1, the said medicine i.e. Tocilizumab/Remdesivir was administered to take guard against Cytokine storm. As super added secondary bacterial infection was suspected as well, a high generation anti-biotic injection- Meropenam 2 gm. IV loading followed by 1 gm. TDS was started. Infusion Fentanyl 1 and Infusion Artacial were started as per ventilator protocol. The patient was under constant monitoring of the Opposite Party No. 1 and entire critical care team of doctors. It is further claimed that from 08/08/2020 to 09/08/2020, the overall situation of the patient remained same- acute lungs injury. It was further argued on behalf of Opposite Party No. 1 that a second sample was sent for Covid screening, however, his situation and diagnosis was so critical and so much suspicious of viral that to save his life, all attempts were taken and without any delay all relevant medicines like anti-biotic etc. were started. We find complainant, in his petition of complaint, stated that she “suspects that due to wrong treatment her husband died”. But no specific grounds were shown for such suspicion. Mere allegation of negligence and/or wrong treatment is not suffice. It has to be established and proved by way of cogent evidence and document. Be it noted here, the cardinal principle is that suspicion, however, strong cannot take the place of proof. In this connection, no opinion of any expert or doctor in this filed is forthcoming to vindicate her claim of wrong treatment. In this regard, we may recall the observation of our Hon’ble Apex Court in Dr. (Mrs.) Chandarani Akhouri & others Vs. Dr. Methusethupathi & others, 2022 Live Law, 391 SC where it clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In Dr. Harish Kumar Khurana Vs. Joginder Singh & others reported in AIR 2021 SC 4690 where Hon’ble Apex Court taking into consideration of its previous judgment in Jacob Mathew Vs. State of Punjab & another reported at 2005 (6) SCC 1 and Martin F. D` Souza Vs. Mohd. Ishfaq reported in 2009 (3) SCC 1 it was held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical practitioner was negligent. To indicate negligence, there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring in which event the principle of res ipsa loquitur would be made applicable and not based on perception. It is quite unfortunate that the said patient Prasenjit Sanpui died a premature death at a young age leaving behind his family including kids. But considering the materials on record and also the decisions of the Hon’ble Apex Court with regard to medical negligence, we are not in a position to hold that the death of the said patient was the result of negligence and wrong treatment on the part of the Opposite Party No. 1 & 2 or that there were unfair trade practice and deficiency in service on their part. So, the instant case is liable to be dismissed. Hence, it is ORDERED That the instant case be and the same is dismissed on contest. No order as to costs. Dictated and corrected by me President |
