Judgment & Order dt. 28.03.2018
Death of Smt. Hira Roy Chowdhury, aged 36 years on 23/03/2017, the wife of the complainant, Sri Mitranath Roy Chowdhury due to gross and sheer negligence as well as professional misconduct apart from the breach of trust on the part of OPs as alleged have galvanized the complainant to lodge this complaint under Sec. 12 of the C.P. Act,1986 with this forum. The quintessence of the averment by the complainant goes as follows.
The deceased Hira Roy Chowdhury was admitted at Jeevan Jyoti Nursing Home(OP-2) under the treatment of Dr. Debasish Sain( OP-1) for performing cholecystectomy(operation for gall stone) as it was detected by the said OP-1 at Dishari Diagnostic Centre(Gangarampur Branch) at the early hours of the same day before admitting to Jeevan Jyoti Nursing Home(OP-2). The primary steps of treatment was advised by the OP-1 and accordingly it was followed. Earlier to reporting to the OP-1 the patient, now deceased was admitted at Fulbari Seba Nursing Home with Severe pain in her abdomen on 23/03/2017 and was discharged from there on the next day under the treatment of Dr. S.N. Chanda. As advised by Dr. Chanda Late Hira Roy Chowdhury was admitted to Gangarampur Sadar Hospital on 24/03/2017 and was treated there for 4-5 days under Dr. Chanda when U.S.G., Blood Test etc. were done, but the report of the test when available Dr. Chanda who was then treating Smt. Hira Roy Chowdhury was not available and as advised by Dr. Chanda over telephone Dr. Debasish Sain was contacted and he first checked her and diagnosed for cholecystectomy immediately and advised to get the patient admitted to Jeevan Jyoti Nursing Home on 02/04/2017. The very next day cholecystectomy was performed by the OP-1 at the OP-2 from 08:30 a.m. onwards. After the operation the condition of the patient started detoriating gradually due to any such contamination viz. Pre operative preparation of the patient/contaminated operation theatre & apparatus/improper operation/lack in post operative medication and care. Such medical negligence and deficiency in service on the part of OP-1 and OP-2 led the patient suffering from sepsis and AKI, blood pressure being as low as 70/40. Understanding the fault of themselves, the OP-1 and OP-2 had shifted the patient to Malda Medical College & Hospital with serious condition without consulting the complainant who was informed at about 10 P.M. on 03/04/2017 that the patient Smt. Roy Chowdhury had been transferred to Malda Medical College & Hospital for better post operative care. On receiving the information the complainant rushed immediately to Malda Medical College & Hospital and spent sleepless long hours at the hospital witnessing the patient remaining without care in the hospital. Then to save the life of beloved wife, the complainant transferred the patient to Dishari Health Point at Malda on 04/04/2017 at about 4 P.M. after discharging from the said hospital on DORB. The unfortunate patient breathed her last at around 7 A.M. on 06/04/2017 at Dishari Health Point, the treating doctor of which has mentioned the cause of death as acute renal failure due to sepsis and AKI(Acute Kidney Injury). The averment speaks the mortality rate in sepsis and AKI is very high, early diagnosis and good knowledge of the pathogenesis of AKI before cholecystectomy are very important, but no steps for proper treatment to save a life has not been done by the OPs, though charges without issuing any bill have been taken by the OPs time to time. The complainant, the husband of the deceased Hira Roy Chowdhury being more anxious for saving her wife’s life had not claimed the bill on payment but rather choose proper treatment at the moment in lieu of money. The complainant has provided the money for treatment by taking help of his near and dear ones as he was not solvent enough to carry on the expenditure himself. The different pathological reports supplied by Anubikshan Diagnostic Centre(herein OP-3) being referred by the OP-2 are forged one. A nexus between the OP-1, OP-2 and OP-3 has led to the sad demise of the patient who purchased the services of the OP-1,2 and 3 to be cured. The complainant in his averment has claimed Rs. 2000000/-(Rupees twenty lakhs only) for his severe mental agony and pain till bearing due to death of her beloved wife and deprivation of motherly love and affection of his children.
On argument the Ld. Lawyer for the complainant averred to the court that the OPs were careless, negligent and ignored the medical ethics in performing the open cholecystectomy and consequent injury to the common bile duck that led to the post operative complications like septicemia, AKI(Acute Kidney Injury) and multi organ failure etc. and finally to the sad demise of the patient. In support of the averment the Ld. Lawyer has referred a journal of the American Society of Nephrology where Abolfazl Zarjou and Anupam Agarwal(Department of Medicine, Division of Nephrology, Nephrology Research and Training Center and Center for Free Radical Biology, University of Alabama at Birmingham, Birmingham, Alabama) are of the view “Development of acute kidney injury (AKI) during sepsis increases patient morbidity, predicts higher mortality……… when compared with AKI of non-septic origin, septic AKI is characterized by a distinct pathophysiology and therefore requires a different approach.” More, “Sepsis is a serious medical condition characterized by a whole-body inflammatory state (systemic inflammatory-response syndrome) and the presence of a known or suspected infection that has severe consequences, including multiple organ failure.” The Ld. Lawyer has also argued with a reference regarding sepsis-induced acute kidney injury published in Indian Journal of Critical Care Medicine in which Dr. Arghya Majumdar, Dept. of Nephrology, AMRI Hospital, Calcutta is of the view “Acute kidney injury (AKI) occurs in about 19% patients with moderate sepsis, 23% with severe sepsis and 51% with sepsis shock, when blood cultures are positive.[1]”
Here lies the responsibility of the treating doctor i.e. OP-1, the said Nursing Home i.e. OP-2 and the said laboratory i.e. OP-3. The OP-1 in his written version at para 2 has stated that all necessary tests and medical examinations were done as per the medical instruction before the alleged operation. He has also stated in his deposition to the court, “I conducted the surgery upon the patient namely Hira Roy Chowdhury on 03/04/2017 in Jeevan Jyoti Nursing Home”, filed as examination-in-chief. He has also stated in his deposition to court:
- After opening the abdomen I came to know for the first time that the gallbladder was in highly inflamed and distended condition.
- I was not sure whether the gallbladder was in inflamed condition before the operation.
- Such condition of gallbladder can be detected before the operation and also by the USG and blood tests. I did USG and blood test.
- There is no mention in USG report that the gallbladder was in acute inflamed condition; there was no mention that the pericholecysitic fluid (which indicates acute inflammation in the gallbladder) was present in the USG report.
- Presence of leucocytes in normal range in blood report of the patient rules out inflammatory condition of gallbladder.
- USG was done about 10 days before the date of operation.
- USG report does not disclose inflammatory condition of gallbladder, because it may be that inflammatory condition did not exist at the time of USG was done.
Such deposition to the court reveals that the treating doctor was so careless in his duty that he has done operation based on the USG report which was done much earlier than the operation date on the basis of another doctor’s prescription. Actually he has not prescribed for any USG test. Even in respect of the blood test report that reveals that the tests were done on 21/03/2017 referred by doctor of J.J.N.H. The Ld. Lawyer has raised the question when the patient was not under the treatment of the OP-2 how the OP-3 Anubikshan Diagnostic Centre got the reference of the doctor of J.J.N.H. This proves the false report prepared by the OP-3 being referred in his averment of the OP-1 and it also proves a false statement. The Ld. Lawyer for the complainant has referred the para 4 of the written version of the OP-1 where it has been stated “……… the patient was then referred to Malda Medical College and Hospital (Apex institute for better facility of Monitoring).”It has been referred the important point “Operation must be undergone only after observing necessary safe guards” in the First Appeal No: 206/2010 S.C.D.R.C., Himachal Pradesh. The Ld. Lawyer for the complainant has also referred the observation of the Supreme Court at para 3 of Civil Appeal No: 4761 of 2009 with C.A. Nos. 4762-4763 of 2009, “the decision to perform surgery at a nursing home which did not have the ICU for post operative needs also amounted to medical negligence.” More in the last sentence of para 4 of the said Appeal Case the observation goes “……… the possibility of risks in performing surgery at nursing home which did not have ICU even when better places were available nearby,” the Ld. Lawyer of the complainant has raised the question if it be true that the patient party had requested repeatedly to perform the operation at the OP-2 as averred by the OP-1 in his written version to the forum, he is well aware of his duty on medical ethics. What he had done of his own by transferring the patient to Malda Medical College in late evening on 03/04/2017, he could do that by declining to comply with the request of the patient party. He knew well that the OP-2 lacked in post operative needs and he was also ignorant of the condition of the patient at that moment what he had admitted to this forum in his deposition on 28/11/2017. The attitude of the doctor reveals that he wanted to earn money with a nexus of OP-2 and 3 at the cost of the life of the patient. So, the denial of medical negligence as well as deficiency in service does not stand.
On the question of maintainability of the case in this forum and the denial by the OP-2 as ‘consumer’ to the patient now deceased, the judgment of the Hon’ble Apex Court in the case Indian Medical Association Vs. V.P. Santha & Othrs., (1995) 6 SCC 651, para no. 10 “ Free service would also be ‘service’ and the recipient a ‘consumer’ under the act”, has been sited. The Ld. Lawyer for the complainant also advocated for the claimed amount of compensation in the instant case by citing the judgment of NCDRC in First Appeal no. 408 of 2012 between Dr. R.N. Gautam (Appl.) Vs. Master Nav Khshitij(minor) and Anr.(Resp.) “when allegation of medical negligence and mishandling of case has been established amount of compensation cannot be inferred with.” In submission the Ld. Lawyer prayed for wise decision of this forum on the basis of his averment and argument with documents (kept in file).
The OP-1 i.e. Dr. Debasish Sain in his written version had denied all the averments of the complainant and questioned the maintainability of the case under the C.P. Act, though he had admitted that Late Hira Roy Chowdhury, the wife of the complainant was under his treatment and had undergone treatment as depicted by the complainant in his averment. He has also stated that being an expert in his subject(proof of documents filed to this forum and kept in record) has performed the said operation on the patient after taking all pre operative measures. The said operation was performed under strict asepsis and strict sincerity and honesty as per the medical ethics. He had done the operation based on the pathological and USG report. The said operation took about two hours from 8:30 a.m. to 10:30 a.m. on 03/04/2017 and up-to 9 p.m. on the same day the patient remained stable. Though several times post operative check up and cares were taken by the OP-1 along with the anesthetist, OT stuffs, sisters according to standard medical parameters, the patient’s blood pressure began to fall and immediately constant post-operative highest care had been taken by the OP-1 and the stuff of the OP-2. During the period the instant complainant had been consulted to remove the patient for better care to Malda Medical College and Hospital. As he had consented to this, the patient was transferred to Malda Medical College and Hospital with having best medical care and requirements in an ambulance. The complainant on LAMA shifted the patient to Dishari Health Point, Malda on 04/04/2017. But, the patient, the instant complainant’s wife had breathed her last on 06/04/2017 as stated in the averment of the OP. Such death is unfortunate and this had saddened me much. Under the above stated condition the OP-1 has denied any medical negligence and deficiency in service on his part in the instant case.
The OPW-1 in his deposition to this forum has stated that he was not sure whether the gallbladder was in inflamated condition before the operation but after opening the abdomen he came to know for the first time that the gallbladder was in highly inflamated and distended condition though such condition of gallbladder can be detected before the operation and also by the USG and Blood Test. He did USG where there was no mention in the report that the gallbladder was in acute inflamated condition and the presence of pericholecysitic which indicates acute inflammation in the gallbladder. It was also stated in his deposition that presence of leucocytes in normal range in blood report of the patient rules out inflammatory condition of gallbladder.
On argument, the Ld. Lawyer for the OP-1 pleaded citing CC No. 217 of 2001 decided on 15/05/2015, “ Negligence cannot be attributed to a doctor so long as he performed his duties with a reasonable skill and competence” [2015(2)CPR 759(NC)]. In view of the observation sighted above the doctor here in the OP-1 has performed his duty with his best knowledge of medical practice by taking all peri operative and post operative majors best available from the OP-2. Moreover, a treating doctor has to trust on pathological and radiological tests and reports. It has also been argued that the doctor OP-1 has treated the patient here in the wife of the complainant free of cost, so the instant complaint is not maintainable within the ambit of the C.P. Act. So, the OP-1 is rather a misjoinder in the instant case. Next he has filed a part of a medical journal “Medscape”, the view point of which ‘Cholecystectomy’ is one of the most common operation; patients frequently present at the time of an acute attack. This meta-analysis, which combines data from 5 individual reports, suggests that it is advantageous and safe to perform surgery during or shortly after the onset of acute symptoms. He had also mentioned on argument that complainant filed a petition before the Adjudicating Authority of W.B. Clinical Establishment Regulatory Commission in the District of Dakshin Dinajpur under the provision of the section under 138 of West Bengal Clinical Establishment Act, 2007 on 29/05/2017 vide case no. 01/2017 against the OP No-1 & 2 and after hearing both sides the said case was disposed off without fixing any liability upon the OP No-1 (copy of the enquiry report kept in file). The Ld. Lawyer has also argued that Judges being not medical expert, are to depend on the opinion of other medical experts. Citing the case, Martin F. D’souza Vs. Mohd. Isfaq (2009) 3 SCC 1 and Jacob Mathew Vs. State (2005) 6 SCC. He has stressed on the enquiry report made by the Medical Board in compliance with the order of the Adjudicating Authority of W.B. Clinical Establishment Regulatory Commission in the district of Dakshin Dinajpur. He had drawn the notice of this Ld. Forum to para 6 of the report of the medical board enquiring into the case. He argued that under the above stated arguments, the case may be adjudicated relieving the OP-1.
The OP-2 in his written version and through examination-in-chief has admitted that he is the proprietor of Jeevan Jyoti Nursing Home and Late Hira Roy Chowdhury, wife of the complainant in the instant case was under treatment of OP No-1 in his Nursing Home w.e.f. 02/04/2017 to 03/04/2017. His Nursing Home has well equipped and good infrastructure for treating such patient as the deceased. The said patient had been shifted to Malda Medical College and Hospital as advised by the treating doctor OP-1 with the consent of the complainant at about 10 P.M. on 03/04/2017. The patient was accompanied by Bijan Kr. Deb, Manager and Prakash Roy, Stuff of his Nursing Home. It is a matter of fact that the complainant had made his wife released delibaretly from Malda Medical College and Hospital on own risk bond (DORB). In the afternoon of 04/04/2017 and got the patient admitted at Dishari Health Point Pvt. Ltd. (Nursing Home). Moreover, the patient was treated at his Nursing Home free of cost, so there is no cause of maintainability of the case within the ambit of the C.P. Act,1986.
On argument, the Ld. Lawyer for the OP-2 argued that the Adjudicating Authority of W.B. Clinical Establishment Regulatory Commission in the district of Dakshin Dinajpur, in case no. 01/2017 had disposed off the case on 11/09/2017 without levelling any liability upon the OP-2 on the basis of the enquiry report of the medical board constituted under the direction of the said authority. Moreover, from the averment of the complainant it reveals that the patient Hira Roy Chowdhury had been shifted from one health centre to another time and again from 23/03/2017 to 04/04/2017. So, many a doctor had treated the patient at different health centers on different dates. Moreover, the Ld. Lawyer had drawn to the notice of this Ld. Forum at para 6 of the observation of the medical board where as it is stated “…. in this particular case the post mortem is the only answer to all findings which were happened during operation or after operation or what was the cause for deterioration from the time of operation to till her death.” Under the above stated arguments the Ld. Lawyer prayed to squash the complaint against the OP-2.
The OP-3 i.e. Anubikshan Diagnostic Centre; in his written version and examination-in-chief has stated that he, Krishnendu Ghose, is the proprietor of Anubikshan Diagnostic Centre at Gangarampur and he has conducted some pathological tests according to the instruction of the OP-2 on 02/04/2017 and had sent it to the said Nursing Home on the same day. But, inadvertently the date of issue of the said report were typed as 21/03/2017 instead of 02/04/2017. It was an unintentional bonafied typographical mistake on his part and in support documents(kept in file) have been submitted to this forum. Onargument the Ld. Lawyer for the OP-3 that the enquiry report of Adjudicating Authority of W.B. Clinical Establishment Regulatory Commission in the district of Dakshin Dinajpur has though pointed out it but has made no adverse comment. It means that the said authority had rather agreed upon the plead of ‘bonafied mistake’. The Ld. Lawyer for the OP in course of his argument has mentioned such mistakes with documents in respect of name and title of the deceased on the documents mentioned by Dishari Health Point, Malda who had not been included as a party in the instant case in spite of the observation of the said District Adjucating Authority at para 6.
Now the points to be discussed for adjudication
- Whether the complainant is a consumer of OP-1,2 and 3?
- Whether any medical negligence/deficiency in service had been performed by the OP-1,2 and 3 jointly or individually?
- Whether the compensation claim is actually tenable?
Decision with reasons:
The averments by all the parties, the examination-in-chief and deposition along with all the documents and references filed by the parties had been perused, gone through properly and taken into consideration for adjudicating the earlier mentioned points in the instant case. We accede to the contents of the Ld. Lawyer for the OP-1 in his citation: (2009) 3 SCC 1 and (2005) 6 SCC & 2015 (2) CPR 701 (NC) para (B) in the case Appeal No. 410 of 2007, Dr. Ashok Kr. Rai Vs. Smt. Seema Singh & Anr. We have given enough stress on the report of the adjudicating authority of the West Bengal Clinical Establishment Act, 2007 based on the enquiry report of the medical board constituted by the said authority in case no. 01/2017 under the said authority.
We have relied much on Para No. 10 on the judgment of Hon’ble Appex Court of India in the case Indian Medical Association Vs. V.P. Santha and Othrs (1995) 6 SCC 651. The observation of the State Consumer District Redressal Commission at Chennai in the case M. Suresh Kumar, S/O- Murugaiyan,…… Vs. The Medical Officer, …… on July 29,2013, “The service rendered free of charge to patients by doctors/hospitals whether non government or government who render free service to poor patients but charge free for services rendered to other patients would even though it is free, not be excluded from the definition of service in section 2(1)(O) of the C.P. Act, 1986. The act seeks to protect the interest of consumer as a class. To hold otherwise would mean that the protection of the act would be available only to those who can afford to pay and such protection would be denied to those who cannot so afford.”
Hence, from these rulings certainly in this case the deceased complainant’s wife has become under the purview of ‘consumer’ as defined under section 2(1)(d) and the service rendered by the opposite parties under section 2(1)(O) of the C.P. Act, 1986. Hence the complaint is maintainable before this district forum.
The observation in the judgment dt. 26/10/2012 in the case Doctor (Mrs.) N.K. Arora,(Senior…) Vs. Lukshmi Rastogi wife of S.H. Ram at the State Dispute Redressal Commission, Haryana is as follows: No doctor is protected for medical negligence if he provides services to the patients free of charges. It is a case of res-ipsa-loquitur. Therefore, even if the treating doctor is an expert, qualified and treated the patient in the well equipped hospital still the concerned doctor cannot seek protection under the term ´services´ as defined under section 2(1)(O) of the C.P. Act, 1986.
The report of the Adjudicating Authority of West Bengal Clinical Establishment Act, 2007and their observation at para 1,2 & 3 made by the medical board constituted under the said authority have also been taken into consideration in adjudicating the instant case. The comment of the authority at para 4 of the enquiry report, “operating notes, (mentioning severe infection and adhesions) and post operative check up notes are all clearly mentioned at B.H.T. Post operative check up notes by Dr. Sain was done several times than other B.H.T. of the same time.” This above comment peeps a suspician at the statement and arguments of the OP-1. A natural question has raised in our mind why the patient had to shift to Malda Medical College and Hospital in a critical condition though both the OP-1 and OP-2 had claimed in their written version and their argument that the said nursing home is a well equippedone where a doctor should perform his operation in the light of the observation of the Supreme Court at para 3 & 4 of Civil Appeal No: 4761 of 2009 with C.A. Nos. 4762-4763 of 2009. But, the shifting of a critical patient reveals that the said OP-1 has made a deliberate departure to the principle enshrined by the Appex Court. Moreover, the OP-2 in his written version had admitted that during the shifting of the critical patient to Malda Medical College and Hospital two non-technical stuffs of his nursing home had been engaged. It clearly proves that no proper intensive care had been taken for a critical patient. Moreover, the OP-1 has failed to file any document that U.S.G. of Late Hira Roy Chowdhury was done on 02/04/2017 or 03/04/2017 i.e. before the cholecystectomy though the OP-1 has claimed to have done so and inflammation of gallbladder could be detected before the operation by U.S.G. He had also not provided any such document that tells the type of blood test done to detect any inflammatory condition of the gallbladder.
The above facts evince the deliberate negligent attitude and deficiency in service on the part of OP-1 and OP-2.
We also have taken into consideration the observation at para 6 of the said adjudicating authority where it is said, “in this particular case the post mortem is the only answer to all findings….” And “Dishari Health Point did not do post mortem in this case.” In this context it is to be mentioned that in the Indian scenario post mortem is compulsory in the cases of unnatural death due to accident, suicide etc.
We are of the view in this context on the basis of the discussions in above paragraphs death of the complainant’s wife roots somewhere at medical negligence and deficiency in service on the part of Dr. Debashish Sain, the OP-1 and the proprietor,Jeevan Jyoti Nursing Home, the OP-2.
The written version and the arguments of the OP-3 have been taken into consideration. In this context, the report of the adjudicating authority in last line of para 2 of the said report has been considered. The OP-3 may get ‘Benefit of doubt’,so he is acquitted of all charges.
In deciding, the compensation amount claimed by the complainant, we have considered the observation in Corpus Juris Secundum Vol. No. 15 at page 652, 653 which runs thus: ‘Compensation’ has been defined as meaning amount, an equivalent given to property taken or for an injury done to another or an equivalent in money for a loss sustained. In this present world of ‘open market economy’ the principle ‘there is no free lunch’ is followed at every aspect of our social and family life. The life span of a female in India has been also taken into consideration. As per the data published by the W.H.O. in 2015 the average life expectancy of Indian male is 66.9 years and female is 69.9 years. We also accede to the observation of the N.C.D.R.C. Appeal No. 408 of 2012 between Dr. R.N. Gautam(Appl.) Vs. Master Nav Khshitij & Anrs.(Resp.), “when allegation of medical negligence and mishandling of case has been established, amount of compensation cannot be interfered with.”
In the context of the W.H.O.’s report, it may be concluded that the deceased, the complainant’s wife might live on this earth about 70 years of her age of which up-to her age of 60 years she might remain workable to contribute to his family on the principle of the present economic scenario as stated in the above paragraph even though the deceased was a housewife, her contribution to her family through her domestic chores can be evaluated in terms of money, though we empathetically feel that no loss due to death can be evaluated in terms of money and or compensated with. But, in the light of the observation in the case between M/S United India Insurance Co. ….. Vs. K. Dhanalakshmi on October 29,2012, a compensation is to be decreed considering the age of death and the life span with workability of the deceased. As, the complainant’s wife had died at the age of 36, she might remain workable contributing to her family up-to her age of 60 i.e. 24 years more. We have considered the monetory value of the domestic chores done by the deceased @ Rs. 6000/-(Rupees Six thousand only) per month for 24 years more.
The discussion of all the points for determination had been done at length.
ORDERED
- The OP-1 and 2 being liable of negligence and deficiency in service are directed to pay Rs. 1728000/-(Rupees Seventeen lakhs and twenty eight thousand only) as compensation for causing permanent mental agony and harassment of the complainant, deprivation of motherly love to her children.
- The OPs are further directed to pay Rs. 20000/-(Rupees Twenty thousand only) as litigation cost to the complainant.
- The OPs are directed to pay the whole amount in equal share to the complainant within 30 days from the date of this order, failing which the compensation amount will bear 8% interest p.a. till the full realization of the said amount of compensation.
The case be and the same succeeds on contest.
