SMT. BANDANA ROY, PRESIDENT
Sum and substance of the complaint case is that late Arjun Samanta, elder son of the complainant who was a young handsome responsible person suddenly fell ill of loose motion, vomiting, weight loss, stomach ache etc for which he visited the Nursing Home, the OP no.2 and was admitted there under the Dr. OP No 1 and was released from the Nursing Home on 30.03.2016. The complainant regrets that the owner of the said nursing home was the owner of the bus which the deceased used to drive during his life time. So, the complainant as well as his son had utmost trust upon the Nursing Home for his recovery. Several tests were done but the complainant- party was kept in dark about the result, however it was detected that the patient was suffering from acute hepatitis but actually no specific treatment was done by the OPs. On 04.04.16 he had to visit again to the nursing home for treatment and doctor gave assurance that within few days the patient would be fine. On 14.04.16 the patient suffered acutely and again he was taken to the nursing home of OP no. 2 for treatment by OP no.1.The complainant requested the doctor for referring her son to a better hospital as his condition worsened day by day. But the OPs did not refer and kept the patient under their treatment with assurance to cure him there. But finding no other alternative, the complainant took her son to NRS Medical College on 24.07.2016 when doctors there opined that the patient had been brought at the eleventh hour of his life. The doctors there released the patient with remarks that the patient should die peacefully at his home as the treatment provided to him earlier was lackadaisical and careless line. Thereafter the complainant got her son admitted at PG Hospital for liver transplant. Again the complainant took her son to the OP No.,1 in the Mass Clinic, another nursing home of the town. On 13.08.2016 condition of the patient became utmost worse and he was admitted at Mass Clinic in ICU under Dr. Sudarsan Khaskil, who referred the patient to any State Medical College and instantly the complainant got admitted her son to Life Line nursing Home at Kolkata where the son of the complainant expired on 15.08.16 at the age of 42 years. It is the allegation of the bereaved complainant that due to gross negligence of treatment on the part of the OPs, her son had died.
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 OP No.1 appeared and contested the case by filing written version. The OP prayed for dismissal of the case as non maintainable under various provisions of law. They also denied all the material allegations made in the complaint petition.
The specific case of the OP no.1 is that the son of the complainant came at his chamber for the first time on 22.03.2016 with complaint of deep jaundice with serum Bilrrubin 8.5 as examined by the OP no.1 and after inspection he was advised USG of whole abdomen and blood test for hepatitis A.B.C.E. and Prothrombine Time and also prescribed some medicines. After one week the patient again came to him with all test reports and the doctor explained the disease to the patient party and also asked for hospitalization as there was feature of hepatitis and blood reports as ABCE non reactive. CT Scan of the patient was done on 29.03.2016 feature of thrombosis of Portal vain with few per pancreatic collateral formation…found. The OP no.1 repeatedly urged for referring the patient to any other better institution but being a driver of the bus of the owner of the OP no. 2-nursing home, mother of the patient insisted on treatment in the OP no. 2 as she had neither power of man nor money for treatment elsewhere. After discharge from the nursing home different times Arjun Samnta was taken at the chamber of the OP no. 1 for treatment. Ultimately on 10.06.16 the patient was again admitted in the OP No. 2 nursing home with complaint of AGE and previous ailments. The patient even did not take admission at Tamluk Hospital nor in any Medical College in spite of request of the Ops. This OP deny any deficiency in his treatment provided to the patient and negatives the allegation that doctors of other Institutions have made any adverse comment regarding his treatment in the Nursing Home of the OP no.2.
The OP No 2 also contested the complaint case by filing written version and contends that they have no deficiency in service as alleged by the complainant. So, they prayed for dismissal of the complaint with cost.
It is the specific averment of the OP no. 2 that on perusal of all the test reports, made by the complainant at her own volition, the OP no.1 advised the complainant to admit her son at Tamluk District Hospital. But the patient was admitted in the OP no. 2 Nursing Home under the doctor OP no. 1 after complying all the formalities of the nursing home. He was discharged and again was admitted under compelling circumstances. On 20.04.2016 condition of the patient became more deteriorated and OP No. 1 asked the patient party to take treatment from any Medical College for better management, but the patient party did not pay heed to the said direction of the OP no.1 and did not take discharge from the nursing home in spite of the fact that the patient had been discharged from the nursing home on 20.04.2016. After a long gap, on 29.07.2016 at about 9.40 PM the patient again was admitted in the nursing home under the OP no.1 and then the condition of the patient was very bad. They treated the patient up to 31.07.2016 and on 01.08.16 under advise of the OP no.1 the patient was taken to Dr. Khaskil who treated the patient on 01.08.2016 and then the OP no.1 referred the patient to Medial College, Kolkata for better management.
It is contention of this OP no.2 that there is no black and white allegation against this OP no. 2 by the complainant and all the management and treatment of the patient Arjun Samanta have been performed in the Nursing Home as per advice and supervision of the OPno.1 Dr. B. N. Manna.
Point to be considered in this case is whether the Ops were negligent in treatment to the son of the complainant 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 version and all the documents filed by both the parties, the affidavit in chief, the questionnaires and reply thereto filed by the respective parties and heard the submission of the ld advocate for the complainant.
Admittedly the patient since deceased was son of the complainant and admittedly he as admitted in the OP no. 2 Nursing Home on 14.042016 and he was treated there till 23.04.16. According to the complainant no treatment was done by the OPs from 14.04.16 to 23.04.16 and as a result condition of her son was deteriorated and again complainant admitted her son in the OP no 2 nursing home on 13.06.2016.
It has been alleged by the complainant that very rapidly condition of her son was falling down and his weight was reduced to 56 Kgs from 78 Kgs in a short span of time and he became ill with several ailments such as loose motion, vomiting, weight loss etc for which she had no other way but to admit her son in the OP no 2 nursing home under the treatment of Dr. OP No. 1. It is alleged that OP no1 did not bother to explain the disease of her son and gave assurance that her son would be O K very soon after medication. According to the complainant several tests were done on the body of the patient and several pathological reports were received by the complainant but the complainant was kept in complete dark about result of the tests and reports along with USG report done on whole abdomen dated 28.03.2016. For this negligent treatment by the OP no 1 the son of the complainant was taken to NRS Medical College and Hospital on 24.07.2016 where doctors scolded the complainant by saying that she had brought her son at the verge of death. But returning from NRS the complainant again took her son to the OP no1 on 29.07.2016. In the prescription the patient was advised hospitalization mentioning that condition of the patient was ‘very bad’ .Ultimately the complainant’s son expired on 15.08.2016 at the Nursing Home at Kolkata at his age of 42 years.
Now the question is whether the OPs were negligent in the treatment of the son of the complainant resulting his death.
Before discussing the alleged negligence of the Ops it is pertinent to mention here doctors generally have certain duties towards their patients. Some of the important duties include :
- To exercise a reasonable degree of skill and knowledge and a reasonable degree of care ;
- To exercise reasonable care in deciding whether to undertake the case and also in deciding what treatment to give and how to administer that treatment;
- To extend his service with due expertise for protecting the life of the patient and to stabilize his condition in emergency situations ;
- To attend to his patient when required and not to withdraw his services without giving him sufficient notice;
- To study the symptoms and complaints of the patient carefully and to administer standard treatment etc.
Halsbury’s Law of England defines medical negligence as under:
Negligence – Duties owed to patient .A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person whether he is a registered medical practitioner or not, who is consulted by a patient , owes him certain duties namely, a duty of care in decidingwhetherto undertakethe case, a duty of care in deicingwhat treatment to give, and a duty of care in his administration ofthat treatment. A breach of any of these duties will support an action for negligence by the patient.
The test of medical negligence which was laid down in Bolam Vs. Friern Hospital Management Committee reported in (1957) 2 All ELR 118, has been acceptedby Supreme court as laying downcorrect tests in case of medical negligence.
In a larger Bench of the Courtin Jacob Mathew V State of Punjab and Another, (2005) 6SCC Chief Justice Lahoti has accepted Bolam test as correctly layingdown the standards for judging cases of medical negligence.
Supreme Court has spelt out duties of a doctor in AIR 1969 (SC) 128 that the ”Skill of medical practitioners differsfrom doctor to doctor. The very nature of the profession is schthat there may bemore than one course of treatment which may be advisable for treating a patient Courts would indeed be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability and which due care and caution. Medial opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care skill and diligence and if the patient sill does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence”.
In the present case the ld advocate for the complainant argued that the complainant did not receive the copy of discharge certificate and certain copy of medical advice and it is alleged that the son of the complainant had alcoholic hepatitis and for this Ld advocate for the complainant argued that her sons was not advised to stop taking alcohol though his condition was deteriorated.
We have perused the discharge certificate issued by the OP no 2 Nursing Home. Ld advocate for the complainant submitted that there is a blank in the portion from which date to which date the son of the complainant was admitted in the OP No. 2Nursing Home. It appearsthat the son of the complainant was suffering from alcoholic hepatitisand thrombosisportal vain.
Ld. advocate for the complainant argued that as per Medical Journal, the discharge summaryshouldmirror the case notes of the patient records with a brief summary relevant investigations, and operative procedures. The dates of admission, discharge and surgery are useful when the sequence of events ia an important issue I litigation later. It is also important to include instructions to be followed by the patient after discharge including dietary advice and date of next follow up. The doctor can be held negligent if proper instructions are not given regarding the medications to be taken after discharge, physical care that is required and the need for urgent reporting if an untoward complication happens before the advised time of review.
It appears that the complainant has herself produced copy of discharge certificate issued by the OP no. 2 which shows the medicines and treatment applied to the patient at the time of his treatment. The second discharge certificate dated 23.042016 shows that the son of the complainant was suffering from acute hepatitis and PHT and liver abscess. Several medicines were prescribed to the patient. The 3rd copy of discharge certificate filed by the complainant shows that the son of the complainant was admitted in the same nursing home on 10.06.2016 and was discharged on 13.06.2016 and he was suffering at that time from alcoholic hepatitis. He was prescribed medicines and on 29.07.2016 it was commended by the doctor that the patient had hepatitis failure, chronic alcoholic liver, oesopnagial varies, and also in the back of the prescription it was mentioned that the condition of the patient was very bad.The 4th documentis a report of a part of examination: CT Scan of upper Abdomen, (PAIN + CONTRAST) which was done by Arabida Diagnosticand Analytical Centre, Purba Medinipur. From the report it appears that son of the complainant had liver: marginally enlarged in size ( 165 mm in MCL) Hepatic parenchyma is inhomogeneous, Few cystic spaces & indistinct nodular lesions are noted in right lobe of liver. Largest nodule measures 48 x 52 MM intra & extra hepatic part of portal vein appears non-enhancing in post – contrast study. Few pet pancreatic collate rates are seen.
Condition of Gall Bladder:partially contracted with diffuse thickening of GB wall. . GB lumen reveals traces of sludge.There is no sign of hyper attenuated stone/mass in the gall bladder….
Kidneys: both the kidneys show normal size, shape, position and configuration. Corticomedulary differentiation is maintained. No mass/ hydronephrosis calculus/ cysts seen on either side parencyhymal enhancement pattern is normal Excretion of contract seen bilaterally. Impression: Thrombosis of portal vein with few periphancreatic collateral formations ? thrombosed intrahepatic collaterals along with few indistinct nodular lesions in right lobe of liver….Triphasic CT scan of liver suggested for further evaluation. Secondary parenchymal liver disease wit reactivethickening of GBwall ..correlation with LET suggested.Third marginal hepatosplenoegaly.The report has been signed by Dr. Sumeru Chakraborty and seconded by Dr Subhasis Goswami, MD( Radio diagnosis),Dr U. Das, MBBS, DMRM MD.Dr. Aninda Sasmal, MD (Radio diagnosis) and others.
On 29.03.16 it is found that the complainant’s son was suffering from a liver disease which was opined by the doctorB N Manna, the OP No. 1.
The complainant has filed another USG report of whole abdomen done by Health Care Diagnostic Centre regarding liver impression was hetarogenous SOL (? Abscess) in RLL &features of Acuite Hepatitis.
So, from the serology report and other reports of USG it can be said that the son of the complainant was suffering from alcoholic hepatitis and was decided at the complainant’s son (Ante _ HEVLGM) . It was noted that hepatitis E virus is a generalhepatitis. It is a serious problem in developed countries like India, lead to acute infection. HIVLGM ……1-4 seeks of its infection. HEV has never been associated with chronic infection.
From another report of Genix Laboratory and Diagnostic Centre which was dated 28.03.2016 on test of Hepatitis A virus IGM the result was found 0.49 . Diagnosis was: diagnosis is difficult since virus excretion in stools is both early and rapid. The viremia stage is short lived and detection of viral RNA of little significance.This explains why the only reliable method is the detection of anti HAV igm, especially after immuo capture igm.Patients exhibiting borderline reactivity should be mentioned at approximately 1 seek intervals.
Thereafter MACT scan of whole abdomen (Triphasic) was done on 22.07.2016 in Eko Diagnostic Centre Calcutta. Impression was CT features are suggestive of 1) Hepatomegaly with decreased attenuation in right lobe ? HCC, 20 Ascites and 3) Dilated MPD suggested clinical correlation and further investigations if clinically indicated. Thereafter it appears that the complainant took her son to Dr. S Khaskil who referred the son of the complainant and diagnosis as CA liver and erophegot varix he prescribed necessary medicines. Ultimately son of the complainant died on 15.08.2016 in Life Line Diagnostic Centre cum nursing Home Calcutta and the cause of death was Hepato cellular carcino. (HCC).
We have pursued the affidavit in chief of the complainant; it appears that it is the replica of the complaint. Against that the OP no1. 1 & 2 cross-examined the complainant. It has been suggested to the complainant whether the OP no1 advised for USG of whole body and abdomen and blood test A B C F and Prothrombin time ?. t the complainant answered Ýes’. It was also suggested that if the complainant was not satisfied with the service of the OP No. 2 Nursing Home in respect of the service of the patient why she again and again preferred admission of his son on 04.04.16, 14.04.16 and on 10.06.16 in the same nursing home ? The complainant answered that at time she had no objection to rely upon trust ands good will of the OPs on utmost good faith. Another question no. 10 was asked that –Can you say cogent reason for treatment of your son who was seriously ill from March, 2016 to August, 2016 by the doctor OP no 1 and again how you say negligence and deficiency in service and non observance of propery way and wrong treatment and lackadaisical and careless duty by him as well as by the OP no 2 instead of preferring treatment of your patient by any reputed doctor or Nursing Home when you knew about his non-curable disease like liver cancer of your son ? The complainant answered that the desease of her son , also his sufferings , his condition , risk factors , result etc were never explaioed toher or anybody of her family at any point of time by neither the OP no 1 nor the OP no 2 during h is admission and treatment under the OP no 2 and at that particular point of time OP no. 2 hold such a dominative position that she had no option left but to keep belief on the OP no 2 on good faith.
OP no 1 also submitted an affidavit in chief. In para 15 of the affidavit in- chief the OP no.1 has alleged that the patient party did not perform UGI endoscopy as per his advise dated 23.04.2016 till 13.06.2016. OP no.1 was totally disappointed about the conduct of the patient party and ultimately Dr. S. Khaskil attended the patient on 12.06.16 and the patient was discharged on 13.06.16. The OP no.1 lastly examined the patient on 13.06.16 morning and thereafter from 3.06.16 to 15.08.18 the patient was treated outside. In his affidavit in-chief the OP no.1 denied the allegation of the complainant of medial negligence of the OP no1. OP no1 was also cross-examined by the complainant by stating that the OP no.1 never wrote any specific diagnosis, its result (including USG and blood test for hepatitis ) and even the vital parameters of the patient like blood pressure, pulse rate, weight, temperature etc and advised to shift the patient at any higher centre explaining the disease and risk factor to the patient party in any of the prescriptions dated 04.04.2016, 14.04.2016 and discharge certificate dated 23.04.16 and 323.05.16 and dated 13.06.16. OP No. 1 answered that as the patient and his disease is known to the OP no.1, the OP no.1 did not need to mention repeatedly the same thing and it is fact that due to very close neighbor of the OP no1 “s clinic and nursing home, the complainant too often visited the chamber of the OP no1 or the nursing home for any sort of ailment of her son, sometimes with previous prescriptions only, so that vital parameters are noted accordingly. The medical negligence in treatment has been denied by the OP no. 1 in his answer.
We have carefully examined all the prescriptions and discharge certificates filed by the complainant and also by the OP no1 and the reports of USG of whole abdomen and blood test of ABCF report . We have also consulted some medial literatures through internet regarding the disease of alcoholic hepatitis. It says that alcoholic hepatitis is a condition that has aggravated by alcohol use. You need to stop drinking if you receive an alcoholic hepatitis diagnosis. Treatment for alcoholic hepatitis is may invite medications that reduce inflame in patient’s liver and improve liver function . Doctor may also prescribe vitamin and nutrient supplements if you are malnourished. These nutrients may need to be provided through a feeding tube if you are having trouble eating. Doctor may also advise a liver transplant if the liver is severely damaged. The possible complication of alcoholic hepatitis is patient did not stop drinking the condition of the patient worsens and over all outcome and chances for recovery will worsen as well. Alcoholic hepatitis can lead to hepatic encephalopathy. This condition occurs when the toxins typically filtered out by your remain in the bloodstream .These toxins can cause brain damage and lead to a coma. Bleeding complications, anemia and liver failure can become life threatening.
In the present case, the patient has been diagnosed with alcoholic hepatitis
We have perused the CT Scan report of upper abdomen of the patient which says thrombosisof portal vain with few peripancreatic collateral formations ? thrombosis intrahepatic collaterals along with few indistinct nodular lesions in right lobe of liver….triphasic CT scan of
liver suggested for further evaluation. Secondary parenchyma liver disease with reactive thickening of GD wall and marginal hepatosplenomegaly.
Ld Advocate for the OP.no.1 referred several decisions in favour of the case of the Ops.
In 2016 (4)CPR 569 (NC) it was held that simply because a patient has not responded to a treatment given by a Doctor or a Surgery has failed, doctor cannot be held straightway liable for medical negligence. Second 2017 (3) CPR 452 ( NC), which held that expert’s opinion is necessary to assess the treatment of the doctor. 2014 (2) CPR (NC) 787 which held that refer any patient to any other hospital is not negligence ; it is a standard of medical practice. 2009 CPJ 32 (SC) which held that medical negligence - General principles – Medial practitioner not liable for negligence, simply because things went wrong from mischance/misadventure though error or judgment.—medical practitioner would be liable only where his conduct fell below that of standards of reasonably competent practitioner in his field. Another decision reported in 2015 (2) CPR page 41 (NC) referred by the ld advocate for the OP no.1 held that negligence is to be established and not be simply presumed; 2017 (2) CPR page 737(NC) held any medical practitioner is not liable to be held negligent medically because things went wrong.
The complainant has not challenged the report of the diagnostic centre which says that her soin was suffering from alcoholic hepatitis. The son of the complainant was 43 years old and it could be presumed that he knew the seriousness of his illness. All the reports of the complainant’s son if taken up together it would reveal that the liver of the complainant’s son was enlarged at the time of his illness and heterogeneous SOL (? Abscess) in RLL and features of Acute hepatitis.
The complainant has also produced the Xray report of Health Care Diagnostic Centre which we have perused and lastly the son of the complainant died. The death certificate of the son of the complainant said that cause of death was Hepato Cellular Carcino. From all these it appears that the son of the complainant was suffering from a critical stage of hepatitis ; whether he used to take alcohol or not it is not matter but it is to be looked into whether the condition of the patient was critical at the time of his treatment by the OP no.1 at the OP no. 2 nursing home. In this case from the literature and on the basis of common sense we can say that permanent liver damage is caused as a result of excess use of alcohol. We have already stated that bleeding complications, anemia and liver failure can become life threatening. It is also seen that the liver with alcoholic hepatitis is a serious disease. Up to 30 – 40 people with several alcoholic hepatitis can die within a short life span.
We have perused the prescriptions and different reports and we do not find that the OP no.1 along with the OP no 2 misadvised the complainant for treatment of her son. If that be so, then the complainant should not take the shelter of the OPs three times repeatedly with the illness of her son. If all the reports are con-joint, then it appears that the liver of the son of the complainant was completely damaged due to his disease of hepatitis. We are extremely sorry for such a disease of the son of the complainant who expired at the age of 43 years, but cannot blame the OPs for such death. Materials on record suggests they tried with standards practice for curing the complainant’s son but situation was so deteriorated that they could not save him.
Considering all the above aspects we are unable to allow any compensation in favour of the complainant.
As a result the case fails.
Both the issues are answered accordingly.
Hence, it is
O R D E R E D
That CC/429 of 2017 be and the same is dismissed on contest against the OPs.
Parties do bear their respective costs.
Let copy of the judgment be supplied to all the parties free of cost.
