The petitioner Sri Gouranga Das, Sri Nikhil Ch. Das and Smt. Sampa Das are the son, husband and daughter respectively of the deceased Sova Das filed this application u/s.12 of the Consumer Protection Act 1986 for seeking relief which was registered as Consumer Case No.25/2015 in this Forum.
The fact of the case as revealed from the petition of complaint as well as from the evidence is that the complainants are the legal heirs of the deceased Sova Das who died on 16.11.13 at about 9.50 a.m. at Sudha Nursing Home which is situated at Debinagar under the P.S. Raiganj, Dist. UttarDinajpur. The said deceased Sova Das was admitted to the said nursing home under the instruction and guidance of treatment of Dr. Sanjoy Seth who is the O.P in this case. It is to be mentioned that Dr. Sanjoy Seth is a general laparoscopic surgeon and practicing at Ukilpara, P.O & P.S Raiganj and working as a Medical Officer at Raiganj District Hospital within the jurisdiction of this Forum. The O.P/Dr. Sanjoy Seth is a specialized Medical Officer. He runs his private medical clinic for running his professional medical advice at a different places including at Medicare, a medicine shop situated at Hospital more, Ukilpara, Raiganj and the said Dr. Seth is also working as full time M.O. at Raiganj District Hospital. From the petition and evidence it is found that the O.P Dr. Sanjoy Seth used to send his patient whenever necessary to private nursing home under his direct treatment and his guidance including Sudha Nursing Home situated at Debinagar, Raiganj.
On 07.11.2013 the deceased Sova Das felt abdominal pain and went to private chamber of general physician namely Dr. Ashok Barmha, M.B.B.S for his medical advice. The said doctor advised her to contact ultrasonography of the whole abdomen. As per advise of the said doctor the said deceased came to Bikshan Scan Centre Pvt. Ltd. situated at Ukilpara, Raiganj and conducted ultrasonography and the report was prepared by Dr.A.K.Ganguly, M.B.B.S, Kolkata, D.N.R.B, Kol., the consultant Radiologist. From the report of the ultrasonography it is found that the deceased had Hepatomegaly with Fatty Liver. After perusal of the report the said doctor advised medicines as mentioned in the petition of complaint.
Thereafter, all on a sudden on 15.11.2013 the deceased Sova Das again felt pain in her abdomen and as per suggestion of the family doctors and well wishers they decided to consult with respondent/ Dr.Sanjoy Seth being a specialized Doctor and went to his one of the chambers for taking his medical advice at Medicare, a medicinal shop. After physical verification of the patient with a medical history the O.P Dr. Sanjoy Seth ordered to put her urgent and immediate admission at Sudha Nursing Home for suggestive Gall Bloodier Stone operation and also asked to buy and carrying with all the prescribed medicine from the said medicine shop at once as per prescription upon his pad. At the time the doctor opined that the previous ultrasonography report is not correct and all the treatment as she received earlier was wrong and everything will be alright after operating the Gall Bloodier stone on the next day.
The deceased was admitted to the nursing home and as per prescription of Dr. Seth medicines were purchased. At the time of purchasing medicine, injection “L Cef” was provided instead of injection “LB Cef”. At that moment they again enter the room of the chamber of the doctor and informed the doctor about the mismatch of the name of the drug as per prescription. But at the time the doctor replied them that the medicine namely “L Cef” and “LB Cef” is the same and identical drug and asked them to carry at the nursing home as the medicine supplied by the medicine shop is correct. At the same time the doctor told them that all other prescribed medicines/ drugs shall be provided by the nursing home and all cost shall be reflected in the final bill which has to be paid at the time of discharge. It is to be mentioned that except the above medicine the doctor prescribed medicines which are 1)Injection Decolic (Im),2) Injection Ondem (Iv), 3)Injection Calmpose (Im), 4)Injection Forturin (Im), 5)Injection Pentodoc (Iv) and 6) DNS: NS: RL Iv fluids.
After admission the nursing staff administered the prescribed medicines at once along with Iv Fluids combination of DNS: NS: RL (2:1:1) as per instruction of the doctor. But no relief came out rather, the patient became more vulnerable and her pain becomes unbearable. In the mean time the O.P/Doctor came to visit the nursing home and examined the patient. After finishing the visit the patient party asked the doctor about the condition of the patient. At that time the said doctor replied that nothing to be worried and the patient will be full well and fine in the morning. In the next morning the patient party came to the nursing home and found that the patients both feet were roped with bed and the patient was semi unconscious. At that time the nursing authority disclosed that the doctor was already called and the doctor will come very soon and at about 7.30 to 8 a.m. the doctor came to nursing home and started one by one injection intravenously as well as intramuscularly. But no pain was subsides. At that time the patient suffered heavy breathing problems. At that time the staff of the said nursing home pushed away all her family members under the instruction of doctor . After a few minutes the doctor called the complainant No.2 and asked him to make arrange an ambulance as the patient is to be shifted to North Bengal Medical College and Hospital, Siliguri. After hearing such matter the family members became perplexed. Within 20 to 25 minutes they came with ambulance and found that all the nursing home staff has been running here and there and the doctor were trying to push the pipes into the mouth and nose of the patient and heavy bleeding came out from the mouth and nose of the patient and ultimately the doctor declared that the patient has already expired. On being informed, Raiganj P.S started one U.D.Case bearing No.314/2013 dt.16.11.2013 and one SURATHAL report of the above U.D case was prepared at Sudha Nursing Home. Thereafter the dead body was sent to Raiganj Hospital for Post Mortem. After releasing the dead body, the dead body was taken to Bandar cremation ground for last recital as per Hindu Rites and Customs . The dead body was Post mortem at Raiganj Hospital by three doctors, but they are not at all forensic medical experts. From the petition it is found that the doctor treated the patient recklessly for which the patient expired. Doctor should have considered the history of the patient before sending the patient to the nursing home and should have considered that the said nursing home is not facilitated with C.C.U, blood test, Serum amylase, Lipase test etc. The O.P/Doctor should have understood the chemical composition of the medicines prescribed by him where those medicines have any adverse effect or not. There was deficiency of service by the doctor for not applying the standard of professional competence which ought to have been applied by the doctor. The doctor negligently caused breach of his medical professional duty being a specialized Doctor which resulting the cause of life of the deceased patient. The claimant has claimed Rs.19,90,000/- as compensation, Rs.9,999/- as litigation cost and any other further order.
The petition has been contested by the O.P/ Dr. Sanjoy Seth by filing the written version denying all the material allegations leveled against him contending inter alia that the petition is not maintainable in law and the case is bad for non joinder of necessary parties. The complainants have not right to file the complaint case against the O.P. The definite defence case is that the deceased patient Sova Das came to the chamber of Dr. Sanjoy Seth on 15.11.2013 with history of acute pain in abdomen at about 9.40 p.m., as she was feeling acute recurring pain in the abdomen, but the patient was treated under various local quack doctor who advice the various medicines which was administered by oral route and also by intramuscular injection. At that time the patient party as well as the patient had no prescription from the any qualified doctor or specialized doctor. So, the doctor was in dark what medicine was given to the patient. The patient all over the day on 15.11.13 was neglected for his recurrent acute pain and in the last evening and the night of that day she was taken to Doctor Seth referred from the local quak doctor as her pain was not relieved.. The further defence case is that if a patient having excessive pain and not obtaining the proper medicine with 24 hours her progress of disease will be serious. The further defence case is that as per knowledge of Dr. Seth being a clinician and General Surgeon, the actual diagnosis may be missing in the USG report due to excessive GAS and he suggested have a fresh USG report. The further defence case is that doctor also advised various blood test to reach the proper diagnosis such as Amylase Lipase was advised which mainly reflects the severity of attack at Pancreas. The further defence case is that the doctor after clinical examination/diagnosis that it is acute Cholecystipis (Gallstone disease or acute Pancreatitis). If fresh USG report shows the remedy is to operation of Gallstone. The doctor prescribed the medicines for the actual relief of the patient. The further defence case is that in the case of acute Colitis and acute Pancreatitis the treatment of both the cases are mostly similar except the surgical intervention. The use of RYLE TUBE is required. ECG was also advised and the result recorded and the same was found normal limit. The further defence case is that regarding clinical presentation of acute Pancreatitis as per Surgical books of Baily Love Page – 1140 25th Edition the patient will be cardinal symptom of pain. Regarding the possible cause of acute Pancreatitis box 64.5 ( Baily Love Page – 1139. Gallstone is the first cause. So, the doctor consulted and prescribed may be the patient having biliarycolic due to Gallstone or having Pancreatitis for which any Amylase Lipase test is to be done. Further defence case is that as per management of acute pancreatitis and use of antibiotics, broad spectrum of antibiotics should have used early in the course of necrotizing pancreatitis. NASOGASTRIC TUBE is not essential but may of value in patients with vomiting LB-1142 (25th Edition) sometime it helps the patient to subside the pain. Dr. Seth being a specialized doctor, Dr. Seth all through he attended the patient and treated her with utmost care and the doctor was not at all negligent and advised them to take the patient to higher centre as and when by administering several antispasmodics the pain was not subsided. Upon such consideration the prayer made by the complainants are to be rejected.
During the trial the complainant No.1 was examined as p.w.1, Dr. D.N.Mazumder was examined as p.w.2, Dr. Arijit Ganguly was examined as p.w.3, Dr. Ashok Bramha was examined as p.w.4 and Ananda Sarker was examined as p.w.5. On behalf of O.P Dr. Partha Sarathi Das was examined as O.P.W.1, Dr. Kali Shankar Bhattacharjee was examined as O.P.W.2, Dr. Tapash Bhuiya was examined as O.P.W.3In this case it is to be mentioned that Dr.Seth who is the O.P in this case was not examined in this case. During trial the complainant had proved and marked exhibited the documents from exbt.1 to exbt.12 as per Exbt. List. On the other hand no document has been proved and marked on behalf of the O.P.
Now the point for determination is to whether there was any negligence on the part of the O.P/doctor.
Point argued by the Ld.lawyer for complainant.
1. The doctor did not mention the initial diagnosis in the prescription.
2. The doctor cannot run a chamber at any medical shop as per West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017.
3. Introduction of R.Tube which was not properly done.
4. The doctor had no knowledge about the medicines which was prescribed for any reaction with other medicines.
Point argued by the Ld. Lawyer for the O.P/doctor.
1. A doctor prescribed the medicine for treatment of the Pancreatitis according to his skill and tried his best to get relieve as well as to save the life of deceased.
DECISION WITH REASONS
At the time of argument the Ld. Lawyer of the complainants argued that there was latches on the part of the doctor, firstly he pointed out that wrongly introduction of R. Tube may causes fatal to the victim. In this regard the Ld. Lawyer for the O.P submits that for the treatment of Pancreatitis in order to get relief, the introduction of R. Tube is very helpful and there is no evidence to show that the R. Tube was not introduced properly for which the victim suffered.
Now, let us consider the point whether there was any bleeding from the nose or not. In this regard the Ld. Lawyer for the O.P submitted that from the P.M.report we do not find any mark of blood either in the nose or any part of the body, how the Forum will come to a conclusion that there was bleeding in the nose and other parts of the body. In this regard the Ld. Lawyer of the complainants draws the attention of the Forum by pointing out the fact that in the inquest report prepared by the police officer of Raiganj P.S. clearly states that there was bleeding from the nose. So from the Surathal report it is found that there was existence of mark of blood. In this regard it is to be mentioned that the P.M was not done later on after preparation of Surathal report. By this time the mark of blood may be washed out or cleaned.
Now the main point is to be considered whether if the R.Tube was not properly introduced or not, whether it would cause any injury amount to death to any patient or not. In this regard the Ld.lawyer of the complainant submitted a report collected from the Internet on the heading “fatal massive hemorrhage caused by Nasogastric tube misplacement in a patient with Mediastinitis “. From the report it is found that misplacement of tube can cause variety of complication, which can be life threatened in some instances. The report also indicates that complication of massive bleeding can occur immediately after misplace insertion of Nasogastric tube. From the report it is also found that the fatal case of esophageal perforation resulting from Nasogastric Tube insertion in a with mediastinitis. So, on perusal of the report it is found that misplacement of Nasogastric Tube can lead various complications like death. P.W.2 Dr. D.N.Mazumder also stated in his examination that if the R.Tube is not properly introduced , which may cause complications. According to the argument as advanced by the Ld. Lawyer of the complainants is that the Nasogastric Tube may have perforated the esophageal and apparently entered into which desires for which there was a profuse bleeding as a result of which the patient expired. On the other hand the Ld. Lawyer of the O.P submitted that R.Tube cannot affect any cause of death. But such argument as advanced by the Ld. Lawyer of the O.P is not tenable in view of the report. The Ld. Lawyer for the O.P further argued that it is not a journal at all it is mere a report collected from Internet. Further it may be whether it is collected, we find the reference about the improper placement of R.Tube ( Nasogastric Tube).
Now the point is to be considered whether in the P.M. report there was any reflection of perforation of esophageal. But from the P.M. report we do not find any reflection that the esophageal of the victim was perforated. In this regard the P.M. report is silent. It is not under stood why in the P.M. report doctors did not mention such fact. It is to be mentioned that the doctors who conducted the Post Mortem are the colleagues of the same hospital of the O.P. From the book of Current Diagnosis & Treatment Surgery edited by Gerard M.Doherty, M.D, 13th Edition, that book was submitted by the Ld. Lawyer of the O.P it is found that blood may occur into the Cyst Cavity or which is not viscus into which the Cyst has eroded. If the Cyst has eroded into the stomach, there may be hematemasis, malena, and bleeding in the Nasogastric aspirate and if the bleeding is not stopped there may be a shock. So, when there was bleeding the doctor should have care and should take necessary step to stop the hemorrhage, but nothing was done on the part of doctor. So, definitely it was the latches on the part of the doctor. This Forum is also the same view of the argument of the Ld.lawyer of the complainants that due to bleeding there is a heavy shock, for which the patient expired and we also found from the P.M. report that death was due to shock.
From the P.M. report it is also found that the stomach was plenty of fluid. The purpose of R.Tube/ Nasogastric Tube is to bring out the fluid so that the patient can get relief, but from the P.M. report it is found that there was plenty of fluid, as such the R.Tube which was introduced did not work at all. If the R. Tube worked fully then the fluid will come out through the R.Tube. From this act it is found that the R. Tube did not work due to latches of doctor.
Next point is to be considered whether the doctor has initially diagnosis or not when he clinically examined the patient. But from the prescription it is found that in the left side of the prescription there was no note regarding preliminary diagnosis by the doctor. It is indicates that the doctor was in doubt about the preliminary diagnosis of the deceased. In this regard the Ld. Lawyer of the O.P submitted that the main purpose of the treatment is to reduce the pain of the patient for which there was a hasty in doing so, for which the doctor has totally forgotten to write the initial diagnosis. Such argument as advanced by the Ld. Lawyer of the O.P is not at all tenable because it is the primary duty of the doctor to diagnose first. If the fails to do so how the doctor proceed for treatment. The doctor also in confusion whether it was colitis or Pancreatitis. The doctor should advise the patient for USG to ascertain whether it was of colitis or not. When the doctor on perusal the USG report was not sanguine as to the nature of disease whether it was colitis or Pancreatitis he should advise the patient for undergone USG. But the doctor without doing so first treated the patient as Pancreatitis. In order to treat Pancreatitis the test like amylase lipase is required. The Ld. Lawyer of the O.P submits that Amylase Lipase is not done at Raiganj. So, the doctor should have wait for the blood report in order to proper diagnosis of Amylase Lipase as because the Serum and Urinary Amylase levels may be elevated. So, such test was urgently required.
Next point is to be considered whether the injection and medicines and the intravenous fluids had any effect to the body of the deceased or not. On perusal of the recod it is found that injection L Cef was administered with Ringar Lacted ( R L). The compensation of L Cef is Ceftriaxone I.P- 1gm + Sulbuctum Sodium U.S.P 0.5 gm. In this regard the Ld. Lawyer of the complainants has argued that co-administration of Ceftriaxone and Ringar Lacted solution will lead to fatal casualities. In such cases death may occur. In this regard the Ld. Lawyer of the complainants submitted the report from the Internet showing such effect. The Ld. Lawyer of the O.P submitted that such report submitted by the Ld. Lawyer of the complainants has no basis at all because it is not submitted from any books or medical journal. It is fact that the Ld. Lawyer of the complainants collected the report from the Net from which it is found that the solution of Ceftriaxone and Ringer Lacted solution may lead to casualties. So, the Doctor being a specialized should have the knowledge about the prescription of such medicine. As regards to the injection Ruffy 10mg, the composition is Nalbuphine Hydrochloride 10mg has a major interaction with Diazepam and Pentazocine may lead to death. The Ld. Lawyer of the complainants also submitted that such type of administration of medicine were very risk. The doctor should have knowledge about such fact as the doctor was a skilled doctor. In this regard the Ld. Lawyer further argued that injection Ondem has a major interaction with Pentazocine. Pentazocine is injection Fortwin. So, on perusal of the record showing that that medicine was administered to the deceased and the Ld. Lawyer for the complainant had pointed out the reaction of the medicines among the co-mixing of the medicines. So definitely it is a lack of knowledge on the part of a Specialized doctor. He should have sufficient knowledge about the administration of the medicines along with co-administration of other medicines. The Ld. Lawyer of the O.P refers a journal showing that the ultrasound has limited role in the assessment of the patients with Acute Pancreatitis (A.P). According to his argument no information regarding the presence or extend of Pancreaticnercosis for eventual evaluation endoscopic ultrasound is required. It is not understood why the doctor inspite of knowing such fact that ultrasound will not come into the effect for proper diagnosis why he did not advise for Endoscopic Ultrasound. It is fact that EUS is not available. He should refer the patient for such test initially but nothing was done. Magnetic Resonance Imaging ( MRI) is more scientific than C.T.Scan. It is fact that MRI is not available at Raiganj. The MRI is available in Malda Medical College and Hospital. So, the doctor should refer for MRI but nothing was done. So, this is one of the latches on the part of the doctor.
The Ld. Lawyer of the O.P argued that none of the witnesses was examined who are the doctors did not state that the medicines which was administered to the victim was harmful. But on perusal of the record it is found that none of the doctors are specialized doctor, only they perform the Post Mortem report. Moreover, all the doctors are the colleagues of the O.P. So it is expected that those witnesses never state against the O.P. The Ld. Lawyer for the O.P further argued that before holding the trial the Forum/Court will refer the matter to the doctor or board of doctors whether there was any wrong as regard to the treatment. But on perusal of the record it is found that when the Forum/Court finds the latches on the part of the doctor there is no necessity to refer the doctor or board of doctors as per decision of the Hon’ble Supreme Court.
So, on considering the facts and circumstances it is found that the death was due to the latches of Dr. Sanjoy Seth.In this regard it is to be mentioned that the patient was treated at Sudha Nursing Home. So the owner of the Nursing Home may be jointly responsible. But on perusal of the record it is found that the doctor refer the patient under his own hand writing in his pad for admission at Sudha Nursing Home knowing it fully well that in the nursing home there is no provision for C.C.U and other facilities. So, the nursing home is not at all liable and such referring to that nursing home knowing that no modern facilities for treatment are not available there. It is one of the latches on the part of the doctor.
Next point is to be considered what the amount of compensation was.
According to Kunal Saha case, the best method of calculation of compensation is on the basis of the schedule as prescribed in the Motor Vehicle Act. But the Ld.lawyer of the complainant submits that this should not be the basis of calculation of compensation. In this regard he refers the case laws reported in 1) Supreme Court of India ( From Delhi) (F.B) ; Charan Singh Vs.Healing Touch Hospital. 2) Supreme Court of India (F.B), Chief Administrator, H U D A & ANR Vs. Shakuntala Devi. But on perusal of two citation no where it is found that the case of Kunal Saha Vs. Sukumar Mukherjee was over ruled by Supreme Court. In the opinion of this Forum the calculation of compensation of a house wife is applicable as per M.V.Act . On perusal of the record it is found that at the time of death the deceased was 38 years old. So, the multiple will be 10 times earning the monthly income of Rs.3,500/-. The yearly income comes to Rs.42,000/- and the total amount comes to Rs.42,000/- X 10 =Rs.4,20,000/-. It is to be mentioned that the calculation of M.V.Act as per schedule was formulated about more than 20 years back. By this time the price of all materials has increased more than 20 times. So, by calculation of enhancement of compensation amount comes to Rs.4,20,000/- + Rs.84,000/- ( Interest @ 20%)=Rs.5,04,000/-. Besides that the complainants are entitled to get medication cost of Rs.10,000/-. So, total amount comes to Rs.5,04,000 + 10,000/-=5,14,000/-.
Fees paid are correct.
Hence, it is
ORDERED,
That the instant consumer complaint being No. CC – 25/2015 be and the same is allowed on contest against the O.P but without any cost.
The complainants are entitled to get sum of Rs.5,04,000/- as compensation. Besides that they are entitled to get Rs.10,000/- as litigation cost.
The O.P is directed to make the payment by A/C Payee cheque in the name of each claimant or cash within one month from the date of passing of this order failing which it will carry interest at the rate of 5% per annum over the awarded amount from the date of default till the recovery. In the case of failure of payment, the petitioners/ complainants will have the liberty to execute the order for recovery of the amount as per provision of law. In the case of issuing cheques, one cheque will be adjusted with regard the amount.
Let a copy of this order be given to the parties free of cost.
