Date of Filing: 28.11.2014. Date of Disposal: 17.01.2023.
Complainant :Sk. Anarul Hoque, S/O Late Sk. Asen ,Village-Panowa, P.O. Chandipur Kanpur, P.S. Bhatar, Dist. Burdwan, Pin-713125.
-VERSUS -
Opposite Party :1. Dr. S.A. Samad, attached to Suraha Nursing Home Pvt. Ltd., Kalna-Baidyapur Road, (Near Level Crossing), Rameswarpur, Kalna, Burdwan, Pin-713409.
2. Suraha Nursing Home Pvt. Ltd, Kalna-Baidyapur Road (Near Level Crossing) Rameswapur, Kalna, Burdwan, Pin-713409, service through its Director.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
: Mr. Atanu Kr. Dutta. - Hon’ble Member.
Appeared for the Complainant : Sri Debdas Rudra Ld. Advocate.
Appeared for the Opposite Party :Sri Deb Krishna Sinha Ld. Advocate.
FINAL ORDER
On 28.11.2014 the complainant, Sk. Anarul Hoque, has filed this complaint u/S 12 of the Consumer Protection Act, 1986 against the OPs.
The case of the complainant, in brief, is that one Sairin Pervin , daughter of the complainant, aged about 25 years, all on a sudden, in the first week of October, 2012 , felt mild abdominal pain and she was immediately taken to OP No.1 doctor , who after examining the patient, advised for USG of whole abdomen and gave some medicines for temporary relief. On 04.10.2012 the said USG was done and the report of the U.S.G. showed that the patient was suffering from Hypo Echoic Heterogeneous SOL in lesion in gut loops of the umbilical areas – Abdominal Tuberculosis from the gut loops should be ruled out and suggested for a CECT of whole abdomen.
Thereafter on perusing the USG report, O.P. No.1 without suggesting for taking CECT of whole abdomen hurriedly advised for operation and according to the advice the daughter of the complainant namely Sairin Pervin admitted in the O.P. No.2’s Nursing Home on 06.10.2012. On 06.10.2012 as per advice of the O.P. No.1 blood test was done and thereafter O.P. No.1 has done open abdominal surgery hurriedly without following the norms and guidelines prescribed by the Medical Science at O.P. No.2’s Nursing Home on 08.10.2012. During operation injury was caused and without repairing the total injury the wound was closed. The patient remained admitted at O.P. No.2’ Nursing Home for post-operative observations. During post-operative period, the patient developed severe pain and distress and the O.P. No.1 advised for blood test of the patient which was done on 12.10.2012 at the same nursing home but the condition of the patient started to deteriorate, pain and distress continued. On 16.10.2012 when this O.P. No.1 failed to remove /control the pain and distress of the patient ultimately referred the patient to better clinic for better treatment. Thereafter the patient party with the complainant got her daughter to Lifeline Poly Clinic Nursing Home at Burdwan for better treatment on 16.10.2012. The Doctors of the Life Line Poly Clinic, Burdwan being observed that the precarious condition of the patient and because of their inability, referred the patient to SSKM Hospital, Kolkata. The complainant took away her to SSKM Hospital Kolkata for the better treatment and he was compelled to admit her at SSKM Hospital, Kolkota on 17.10.2012 to save her life. In SSKM Hospital, Kolkata, CECT of the whole abdomen was done and the patient was undergone several investigations and the doctors of the SSKM Hospital categorically verbally informed the patient party including the complainant that the damage was caused by O.P. No.1 at the time of operation on 08.10.2012 and infection developed and damaged caused could not be repaired because huge amount of puss burst out from the wound area of the abdomen and severe infection with Sepsis developed. After treating for more than 44 days by all the expert doctors, the patient died on 01.12.2012. The daughter of the complainant namely Sairin Pervin lost her life at the young age because of the careless negligence on the part of the OP Nos. 1 & 2. The OP No.1, without following the procedures prescribed in the Medical Science and without taking CECT of the whole abdomen, did the open abdominal surgery. Subsequently, infection with Sepsis developed for that reasons. The OP No.1 for monetary gain hurriedly did the operation. Moreover, he , without explaining the procedure of operation and post-operative complications associated with the surgery either to the patient or to the complainant and without obtaining the valid consent in accordance with the Medical Science, conducted the such operation which indicates negligence and carelessness on the part of the OP Nos. 1 & 2 . The OP Nos. 1 & 2 miserably failed to take standard of care. The OP No.1, in spite of knowing the facts that the OP No.2’s Nursing Home is not medically well-equipped and having no facilities to control the infection like Sepsis, they retained the patient up to 16.10.2012 and did not refer the patient immediately to any better center for better treatment. Investigation reports like blood reports clearly indicate that the condition of the patient was deteriorated regularly and just to avoid his liability the OP No.1 referred the young girl on 16.10.2012 in very precarious conditions. In spite of sending letter dt. 05.03.2013 the OP No.2 did not supply the BHT and informed the complainant that the documents could not be supplied because of due of Rs. 12,000/- only as surgery charge and mentioned categorically that only the said amount is paid then they will supply the BHT and other documents. This conduct of the OP No.2 is in violation of the Medical Council of India’s guidelines. The Proforma OP No.3 also refused to return the treatment papers deposited at the time of admission of his daughter and categorically informed that the same will be supplied only if the complainant files any case before any court of law. The complainant incurred Rs. 1, 00,000/- for the treatment of his daughter at Kalna, Burdwan and SSKM Hospital at Kolkata.
The cause of action arose firstly on and from 01.12.2012 and is still continuing.
Upon this background, the complainant has prayed for directing the OPs to pay a sum of Rs.18 Lakh for the loss of life of his young daughter Sairin Pervin and for mental pain, agony and harassment and Rs.1 Lakh towards the cost of the treatment and Rs.50,000/- as litigation cost.
OP Nos. 1 & 2 have contested the case by fling W/Vs denying all the material allegations contending inter alia that the complainant has no cause of action for the case and that the present case is not maintainable in its present form and prayer and that the case is barred by law of limitation and that the complainant is not a consumer at all and that the case should be dismissed.
The specific case of the OP No.1 is that he is a reputed Senior Surgeon of Kalna and he saw the patient on 04.10.2012 firstly who was suffering from sub-acute intestinal (1) obstruction; (2) the patient had a history of suffering from Pulmonary T.B for which she underwent operation for complication of T.B. Lungs (Decortication) in 2010. But her suffering continued as her pain in abdomen and distension which was diagnosed to have abdominal T.B. prior to check up by this OP. He further submitted that in case of Pulmonary T.B. there are two components, one is intestinal and the other one is Lymph Node of the mesentery. As the patient had a history of sub-acute obstruction, USG was one which suggested Lymphadenopathy (Hypoechoic Lesion) Lymph Node Abscess. Though the Sonologist advised for CT scan but the OP No.1, with his experience and knowing the pathology of abdominal T.B, C.T. Scan was not recommended by this O P. It is a fact that ECG was done. As urine examination did not come to any help in the course of treatment of the patient, therefore the urine examine was not advised. He further stated that the Anesthetist Dr. K. Pal examined the patient and allowed to proceed with surgery and accordingly the patient was posted for operation and thereafter the allegation of doing operation hurriedly by the OP No.1 is nothing but a false and baseless statement. The operative findings of the patent in question were the whole mesentery having multiple lymph nodes and few have erosion of serosa where the omentum was attached and the intestine (small) was found puckered and adherent to each other. The procedure was release of Omentum from the Lymph Node area which caused multiple bleeding which was managed and attempt to release the small intestine caused serosal Tear which was repaired. Considering the extension of gut involved further procedure could not be done. Hemostasis was ensured and wound closed. The whole fact was disclosed to Mr. Anowarul Haque (father) and the post-operative period patient had pain in abdomen which subsided after two days and oral liquid diet was allowed. On the next day, the patient again had distension of the abdomen and some amount of pain. This problem arises as and when oral feeding was allowed. When urine output reduced, this OP advised to take the patient to higher center. This OP further submitted that during the stay of the patient at the Nursing Home, the patient was under I.V. Fluid, proper Intravenous anti-biotic and blood transfusion. Post-operative investigations did not suggest any evidence of septicemia. The said fact can be revealed from the pre and post-operative investigations of WBC count. The OP No.1 further submitted that the patient was a case of complicated pulmonary T.B. for which Lung Surgery (Decoration was done at Delhi) . The patient has been continuously suffering from abdominal T.B. which causes of poor outcome of the treatment. These patients usually have poor immunological status. Therefore, considering the above treatment rendered to the patient by the OP No.1 cannot be termed as negligence and deficiency in service and he did not adopt any means of unfair trade practice. The complainant, with ulterior motive, lodged this complainant which is derogatory and detrimental and is made willfully, intentionally and mala-fidely to tarnish the goodwill of the OP No. 1 doctor.
Upon this background, the OP No.1 has prayed for dismissal of the case.
The specific case of the OP No.2 is that this OP is a juristic Entity being a Body Corporate and earned its reputation for its credible and utmost level of service. He further submitted that the OP 2 Nursing Home is mere a caretaking and equipment as well as necessary accommodation for medical treatment proving unit and never claims to be a Super Specialty Nursing Home for which it can never held time to time medical board meetings and the OP No.1 is one of the Directors of the said OP No.2 Nursing Home, it generally being run on the decisions of the OP No.1 as because the other Directors are mere Legal Practitioners and does not have any quality knowledge in regard to medical and surgical treatments and for the said reason when the Anesthetist Dr. K. Pal examined the patient and allowed to proceed with surgery , accordingly on the next day the patient was posted for operation .
Upon this background, the OP No.2 also claims for dismissal of the case.
Proforma OP No.3 did not contest case by filing Written Version.
Decision with Reasons.
The complainant has brought this case against the OP for medical negligence committed by the OPs Nos. 1 & 2. For medical negligence the complainant has to prove that the OP Nos. 1 & 2 have not taken any duty to take care during the abdominal surgery of the patient namely Sairin Pervin ,daughter of the complainant. Duty of care means a legal duty rather than mere moral and religious or sufficient duty and O.P. Nos.1 & 2 committed breach of such duty and caused damage to the patient without following the guidelines of the Medical Science and that the complainant is entitled to get compensation for the said damages and those are the ingredients of negligence as per the law of Torts.
Now, we would like to discuss the factual aspects of the case along with various guidelines of Medical Science as per materials available on record filed by both the parties.
It is the case of the complainant that his daughter Sairin Pervin , aged about 25 years , felt abdominal pain and she was taken to OP No.1, who after examination , advised for U.S.G of whole abdomen in the first week of October, 2012 . On 4.10.2012 U.S.G. of whole abdomen was done and the report showed that the patient is suffering from Hypo Echoic Heterogeneous SOL in lesion in gut loops of the umbilical areas Abdominal Tuberculosis from the gut loops should be ruled out and suggested for a CECT of whole abdomen. Without following the CECT , OP No.1 hurriedly admitted her into the OP No.2s nursing home and blood test was done and open abdominal surgery of the patient was done hurriedly without following the norms and guidelines prescribed by the Medical Science and in post-operative period the patent developed severe pain and distress and the OP No.1 again advised for blood test which was done on 12.10.2012 in the said nursing home but the patient started deteriorating and pain and distress continued and thereafter, the OP No.1 referred the patient to better clinic for better treatment. The patient was brought to the Life Line Nursing Home at Burdwan and then the said Nursing Home referred the patient to SSKM Hospital, Kolkata for better treatment. On 17.10.2012 the patient was admitted at SSKM Hospital, Kolkata where CECT of the whole abdomen was done and several investigations were also done. The doctors of SSKM Hospital, Kolkata, categorically informed verbally that damage was caused by the OP No.1 at the time of abdominal surgery and infection developed which could not be repaired and ultimately the patient was died on 01.12.2012.
The complainant in his evidence-on-affidavit corroborated the facts depicted in the complaint but the OP Nos. 1 & 2 have denied the same in their Written Versions as well as in their evidence.
The papers of treatment as available in the case record submitted by the complainant did not disclose that the doctors of SSKM Hospital, Kolkata verbally informed the complainant that the damage was caused due to abdominal surgery by OP No.1. Therefore, this statement of the complainant finds no corroboration from any medical paper.
Even no evidence is forthcoming from the side of SSKM Hospital, Kolkata to the effect that they verbally informed the complainant that the damaged was caused during the abdominal surgery done by the O.P. No.1.
It is alleged by the complainant that the O.P. No.1 hurriedly done operation without following the guidelines prescribed in medical science. But the O.P. Nos.1 & 2 stated in their evidence as well as in the written versions that the patient was admitted on 06.10.2012 and on 08.10.2012 the operation was done. Therefore it cannot be termed as operation was done by the O.P. No.1 hurriedly. This evidence of O.P. Nos.1 & 2 also finds corroboration from the evidence and the fact of the complaint of the complainant.
It is also alleged by the complainant that the O.P. No.1 has done abdominal surgery without obtaining consent of the patient but from the consent form dated 06.10.2012 submitted by O.P. No.2, it is found that the consent of the patient in presence of one witness was obtained and the patient put her signature on it. Therefore this allegation brought by the complainant has no basis at all.
But in the present case, the USG of the whole abdomen of the patient was done on 04.10.2012 and she was admitted on 06.10.2012 at the Nursing Home of O.P. No.2 and O.P. No.1 has done open abdominal surgery of the patient. The USG dated 04.10.2012 disclosed the impression: Hypo echoic heterogeneous SOL lesion in gut loops of the umbilical areas Abdominal tuberculosis from the gut loops should be ruled out. This report was given by Doctor -D.K. Biswas, DMRD, Radiologist. The complainant alleged that without following the impression as disclosed in the USG report dated 04.10.2012 the doctor has done open abdominal surgery. In this connection O.P. No.1 stated in his evidence that he first saw the patient on 04.10.2012 who was suffering from Sub- Acute Intestine Obstruction and the patient had a history of suffering from Pulmonary Tuberculosis for which she underwent operation for complication of T.B Lungs (Decortication) in 2010 but her suffering continued as pain in abdomen and distension which is diagnosed to have abdominal tuberculosis prior to check up by this O.P. and as the patient had a history of acute obstruction, USG was done which suggested Lymphadenopathy (Hypoechoic Lesion) Lymph Node Abscess. Though the Sonologist advised for C.T. scan but the O.P. No.1 with experience of knowing the pathology of tuberculosis, CT scan was not recommended by him but ECG was done and as Urine examination did not give to help in the course of treatment, the urine examination was not advised. It has also been stated in the evidence by the O.P. No.1 that the patient was a case of complicated pulmonary tuberculosis for which lungs surgery was done at Delhi and as the patient continuously suffering from the abdominal tuberculosis which gives poor outcome of the treatment, she usually poor immunity status. From this evidence it is evident that the O.P. No.1 did not advised for CECT of whole abdomen though it was suggested by the Radiologist on 04.10.2012 and why he did not advise the same he has given the reason in his evidence stated above.
The expert report dated 02.03.2017disclosed that USG of abdomen was done on 04.10.2012 and the patient got admitted on 06.10.2012 and Laparotomy was done on 08.10.2012 and so it was not a surgery emergency and in his opinion during this time period CECT of abdomen should have been done which is likely to be provided more information. He also opined that operative findings of the patient was whole mesentery having multiple Lymph nodes and few have erosion of sorasa where omentum was attached and small intestine puckered and adherent to each other. The procedure was release of omentum from the Lymph nodes and to release small intestine i.e. adhesiolysis. It is mentioned that release of small intestine caused serosal tear. It is not clear whether there was any inadvertent gut injury. In the referral note dt. 16.10.2012 not signed by any one, it is mentioned that repair of ileum done indicating injury to ileum. It also appears from the report that the patient was operated on 08.10.2012 and as the condition of the patient was deteriorated she was sent to a higher center on 16.10.2012. It is a fact that any un-detected gut Injury and perforation of eschaemic gut in the post-operative period will lead to Faecal Peritionitis with fatal outcome. So, this long time period of seven days (8.10.2012 to 16.10.2012) was very vital to detect any post-operative complications. It is also noted that no biopsy report of mesenteric Lymph node available.
Now the question arose whether the O.P. No.1 committed any wrong or negligence without giving any advice to the patient for doing CECT as per suggestive of the Radiologist.
The O.P. No.1 took plea that considering the condition and the diagnosis of the patient that she was suffering from acute intestinal obstruction with a history of suffering from pulmonary tuberculosis for which she underwent operation with complication of tuberculosis lungs (Decortication) in 2010. The USG was advised which suggested Lymphadenopathy (Hypoechonic lesion) lymph node abscess for which Sonologist advised CT scan yet the O.P. with long experience and skill and knowing the pathology of abdominal T.B. CT scan was not recommended by him and the operation (Laparatomy) was done with the assistant of General Anesthetist Dr. K. Pal who examined the patient and allow to proceed with surgery and the said operation was done with the consent of the patient. When the patient gave her consent for the same, she also knew that it would be risk including bleeding, infection etc. The expert in his report dated 02.03.2017 opined that if the CT scan was done, more information would be available. But the expert did not give any opinion without following suggestion of the Radiologist and without giving advice for doing CT scan of the patient as per advice of the Sonologist, the O.P. No.1 did gross negligence or in view of the USG report Laparatomy done was wrong. Rather considering the condition of the patient and the report of the USG O.P. No.1 diagnosed the patient and did operation. This reason cannot throw away the explanation given by the O.P. No.1 in his written version as well as evidence. In this connection, the decision of the Hon’ble Apex Court would be very relevant. In Jacob Mathew Vs. State of Punjab [(2005) 6 SCC 1], the Apex Court held: the test for determining the medical negligence laid down in Bolam case holds good in its applicability in India. ‘Negligence in the context of medical profession necessarily calls for a treatment with a difference. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a Doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skilled, 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 by 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.
In the instant case, this principle of law as laid down by the Hon’ble Supreme Court is also applicable. The O.P. No.1 in his best efforts tried to give treatment to the patient in various kinds of medical and surgical treatments, yet the incident leads to death, cannot be ruled out. It is implied that a patient is willing to take such a risk as part of the doctor - patient relationship and attended mutual trust.
It is alleged by the complainant that since operation from 08.10.2012 to date of referred the patient on 16.10.2012 for better management, he (O.P.No.1.) retained the patient in O.P. No.2’s nursing home and did not give any proper treatment after post -operative period. But the O.P. No.1 denied it and he submitted that after surgery he gave proper treatment to the patient as an when required that is during the stay of the patient at the Nursing Home of O.P. No.2 the patient was under I.V. Fluid, Proper intravenous anti-biotic and blood transfusion and post operative investigations did not suggest any evidence of septicemia and the said fact can be revealed from the pre and post operative investigation of WBC count, which are as follows.
- 6.10.2012 (Pre -Operative) - 9100 %.
- 12.10.2012 (Post- Operative) -9400 %
- 13.10.2012 (Post -Operative) - 9200 %
and the post- operative electrolytes and urea creteneno was normal. This fact indicates that there were no features of septicemia during the stay at the hospital.
It is very painful that the patient expired on 01.12.2012 but from the death certificate issued by the SSKM Hospital, Kolkata it appears that the patient was admitted on 17.10.2012 and expired on 01.12.2012 at 6.50 pm. and the cause of death cardio respiratory failure in a case of post laparotomy abdominal Koch’s and the expert in his report dated 02.03.2017 opined that the patient expired on 01.12.2012 at SSKM Hospital, Kolkata and the death certificate of SSKM Hospital, Kolkata does not mention what is the primary and underlying cause of death.
In view of the opinion of the expert that the patient died due to abdominal laparotomy done by O.P. No.1 on 08.10.2012 and during the post- operative period from 08.10.2012 to 16.10.2012. On the other hand, the death certificate issued by the SSKM Hospital Kolkata showed that the death was caused due to cardio respiratory failure in a case of post laparotomy abdominal Koch’s. A laparotomy is a surgical incision (cut) into the abdominal cavity and this operation is performed to examine the abdominal organs and aid diagnosis of any problem, the problems including abdominal pain, etc. In many cases the problems once identified can be fixed during the laparotomy and in other cases a second operation is required. It is a major surgery and every major surgery has a risk including bleeding, infection etc. Laparotomy abdominal koch’s is related to pulmonary TB and O.P. No.1 in his evidence has ventilated that the patient had history of suffering from pulmonary TB for which she underwent operations for complication of TB Lungs (Decortication) in 2010 and her suffering continued as pain in abdomen and distention which was diagnosed to have abdominal TB and the death certificate issued by the SSKM Hospital Kolkata showed that Cardiac respiratory failure due to post laparotomy abdominal Koch’s. This history of the patient has been suppressed by the complainant in his complaint, which goes against the case of the complainant.
O.P. No.2 is a Nursing Home and it has been running at Kalna under the permission of the Health Department, Govt. of W.B. and the O.P. No.1 admitted the patient there and open surgery was done there for this reason the O.P. No.2 did not commit any negligence.
Under the above forgoing facts of the case, materials on record and the discussions, we are of opinion that the complainant has failed to prove his case against the O.P.s and the O.Ps did not commit any deficiency in service and negligence.
The case fails.
Hence, it is
ORDERED
that the Consumer Complaint No.240 of 2014 be and the same is dismissed on contest against the O.P. Nos.1 & 2 and the Prof. O.P. No.3 without any cost.
Let a copy of this order be given to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C, Purba Bardhaman. D.C.D.R.C , Purba Bardhaman.
