Judgment : Dt.15.11.2017
Shri S. K. Verma, President
This is a complaint made by (1) Sri Ramesh Prasad, (2) Sri Ravi Prasad, (3) Sri Jyoti Prasad, sons of Late Shankar Prasad and (4) Smt. Lakhi Devi, w/o late Shanar Prasad, all residing at 2/H/7, Hossain Shah Road, P.O.-Khidderpore, P.S.-Ekbalpore, Kolkata-700 023 against Dr. K. K. Maiti, ESIC Hospital & Occupational Disease Centre (Eastern Zone), Joka, Diamond Harbour Road, P.S.-Thakurpukur, Kolkata-700 104, OP No.1, Dr. Parimal Majhi, Deputy Medical Superintendent of ESIC Hospital & Occupational Disease Centre (Eastern Zone), Joka, Diamond Harbour Road, P.S.-Thakurpukur, Kolkata-700 104, O.P. No.2, Dr. P. S. Bhattacharya, ESIC Hospital & Occupational Disease Centre (Eastern Zone), Joka, Diamond Harbour Road, P.S.-Thakurpukur, Kolkata-700 104, OP No.3, The Medical Superintendent, ESIC Hospital & Occupational Disease Centre (Eastern Zone), Joka, Diamond Harbour Road, P.S.-Thakurpukur, Kolkata-700 104, OP No.4 and Dr. Arnab Gupta, Director of Saroj Gupta Cancer Centre & Research Institute formerly known as Cancer Centre Welfare Home & Research Institute, Mahatma Gandhi Road, Thakurpukur, P.S.-Thakurpukur, Kolkata-700 0563, praying for a direction upon OP Nos.4 & 5 to furnish the entire medical treatment records and sheets of the patient -Shankar Prasad and direction upon the OPs to pay a total compensation to the tune of Rs.15,20,000/- for the irreversible loss and damage suffered by the Complainants and their family.
Facts in brief are that Complainants are legal heirs of Late Shankar Prasad who died an early death due to the deficiency in service and medical negligence on the part of OPs collectively as well as the negligent manner with which the patient was attended/ treated. Complainants No.1, 2 & 3 are the sons and Complainant No.4 is the widow of deceased Shankar Prasad. Said Shankar Prasad had complaint of suffering pain and bleeding every time while passing his stool. During May/June in 2013 he had past medical history of anal fistula and fissure for which surgical intervention in the form of excision of fistula and anal stretching were done at CMRI Hospital on 20.10.1992. However, Complainant No.1, Ramesh Prasad being an employee card holder of ESIC took his father to the ESIC hospital, Thakurpukur,Joka, where his father was seen by Dr. K. K. Maiti, OP No.1. After clinical examination, Complainants’ father was advised for colonoscopy on 8.6.2013. Colonoscopy is a test that allowed looking at the inner lining of the large intestine. A thin flexible tube is used to look at the colon. This test helps finding ulcers, colon polyps, tumors and such other areas of bleeding. Accordingly, colonoscopy of Shankar Prasad was done on 12.6.2013. From the report it transpires that there was an anorectal polyp from where the bleeding was taking place. The report had further suggested for surgical intervention. Thereafter, Complainants took their father on several occasions to the OPD of ESI hospital during which Doctors advised for excision of anorectal polyp vide slip d.21.6.2013.
Finally, as per advise Shankar Prasad was admitted to the said ESI Hospital, Joka, OP No.4 on 27.6.2013 and on 29.6.2013 Dr. K. K. Maiti had done excision of anorectal polyp under spinal anesthesia. Thereafter, the patient was discharged from OP No.4 Hospital on 1.7.2013 with an advice to continue the prescribed medication and review after seven days from the date of discharge. The said histopathology report of the patient, Shankar Prasad, was obtained from the Ashok Laboratory Clinical Testing Centre Pvt. Ltd. on 5.7.13, where biopsy was advised. OP No.1, after seeing the report suggested to follow up with larger biopsy. After a span of about 4 months post-operation the patient again started complaining the problem of pain at the anus area while passing stool and Complainants took him to the OPD of ESI Hospital, Thakurpukur, Joka, OP No.4 where the patient was clinically examined and medicines were prescribed. Thereafter, despite continuing the medicine as per the advice of the Doctors at the OP No.4 Hospital, the patient started releasing puss and the pain aggravated on which was taken to OPD of OP No.4 Hospital. There it was found that the patient have multiple molecular growths in the rectum and was accordingly advised for hospitalization for a punch biopsy. The patient, Shankar Prasad was finally admitted to ESI Hospital, OP No.4 on 24.2.2014 for the said punch biopsy, where proctoscopy was done by Dr. K. K. Maiti under local anesthesia on1.3.2014. The anal rectal mass was taken which was sent for histopathology. Thereafter, Complainants’ father was discharged from OP No.4 hospital on 6.3.2014.
The histopathological findings vide report dt.14.3.2014 of Ashok Laboratory Clinical Testing Centre Pvt. Ltd. revealed for the first time features of malignant melanoma which is a type of cancer that develops from the pigment contained cells known as melanocytes. The said specimen was further sent for immune histo chemistry for confirmation. The report of histo immuno chemistry dt.5.4.2014 of Ashok Laboratory Clinical Testing Centre, stated that ‘section from the anorectal growth was presence of malignant melanoma tumor cells show strong immune reactivity for HMB-45 and Melan-A while pan cytokeratin is positive in a number of cells’. That is the report confirmed presence of cancer. Thereafter, Shankar Prasad was referred by the treating Dr. at ESI Hospital to Saroj Gupta Cancer Centre and research Institute, Thakurpukur for oncology opinion. Finally the patient was admitted at the said Thakurpukur Cancer Hopital on 31.3.2014 and the Medical Superintendent of the Hospital on 7.4.2014 wrote a letter to the Medical Superintendent of ESI hospital seeking permission for a special surgery viz. abdominal perineal resection (APR), which the patient had required. APR is a type of surgery that includes the resection of the sigmoid colon, rectum and anus and the construction of a permanent end colostomy. As such, the said surgery was done under general anaesthetia by Dr. Arnab Gupta, OP No.5 at the said Thakurpukur Cancer Hospital on 8.4.2014.Thereafter the condition of Shankar Prasad deteriorated. Further and finally on 16.4.2014 due to small bowel obstruction post APR the patient required a second surgery in the form of laparoscopy and laparotomy. This clearly makes declare that the surgery in the form of APR done on the first occasion was unsuccessful and the patient had to suffer and undergo a second surgery to correct the previous errors by the OP No.5. Meanwhile, during his stay at the Thakurpukur Cancer hospital the patient developed cerebro vascular accident more commonly known as stroke on 23.4.2014 at around 6.30 in the morning. Thereafter a CT scan was done which revealed that intraventricular haemorrhage (IVH) bleeding into the ventricles of the brain with midline shift. Thereby, strongly indicating the increase intracranial pressure. The condition of the patient became precarious. The patient was left unattended until 12 O-clock at night, when Dr. Deep Das consultant Neurologist was called from outside who had seen the patient on request. However, anticipating neurological emergency the officials of Thakurpukur Cancer Hospital wrote to Dr. P.S.Bhattacharya, the concerned authority of ESI Hospital responsible for referring the patients admitted to ESI Hospital to respective specialized units as and when required. For urgent need for care and treatment in a specialized neurological unit of the patients. Despite that there was no response from OP No.3. Finally, Complainants met Dr. Parimal Majhi, Director of ESI Hospital, OP No.2, and expressed the urgent need of getting the patient transferred to ESI Hospital with a specialized neurological set up as per the visiting neurologist. At Thakurpukur Cancer Hospital. But, to their utter surprise they were turned down. Finding no other alternative, the ospitalHoHospitalComplainant No.1 wrote a letter on 25.4.2014 to the Medical Superintendent of ESI Hospital, OP No.4 with a copy of the same being given to the Officer-in-charge of Thakurpukur P.S. stating non-cooperation of OP No.2 & 3, Director and competent authority of ESI Hospital that too when it is a known fact that or such patient every second and every minute is valuable for saving his life. Complainants, further, requested the Medical Superintendent of OP No.4 to look into the matter. Unfortunately, amidst all these, the health condition of Shankar Prasad worsened and literally left with no proper neurological treatment except for Dr.Deep Das the said consultant neurologist visited 2/3 days. Ultimately, Shankar Prasad died on 1.5.2014 at around 6 a.m. After the demise of Shankar Prasad, Complainants requested for the medical treatment records of the patient from both the ESI Hospital, OP No.4 and the Thakurpukur Cancer Hospital, OP No.5. But, both the hospitals turned down the requests. So, Complainant filed this complaint.
OP No.1, Dr. K. K. Maity, filed written version and has submitted that before admitting a complaint ought to have been referred for opinion of medical expert of a specialized field. Further, this OP has stated that the Complainant does not disclose any cause of action. It has maligned reputation of OP No.1. In addition, this OP has denied all the allegations made therein in the complaint petition and prayed for dismissal of the complaint petition.
OP No.5 filed separate written version and denied all the material allegations of the complaint. This OP has narrated the story made out in the complaint in brief and also has stated the procedure which he took during operation. He has also stated that on an urgent business he was compelled to visit Delhi and he handed over one Dr. Deep Das to look after the patient. He has further stated that he to the best of his professional knowledge took care of the patient. But to the misfortune Shankar Prasad died on 1.5.2014. He has also stated that he has informed his sons and family members to shift Shankar Prasad, deceased, for a specialized treatment of his neuro problems. In the circumstances, this OP has prayed for dismissal of the complaint.
OP No.2 has filed a separate written version and has denied the allegations of the complaint. This OP has stated that they have no liability in the death of Shankar Prasad. OP No.2 is one Dr. Parimal Majhi, Deputy Medical Superintendent of ESIC Hospital and Occupational Disease Centre, Diamond Harbour Road.
OP No.3 has also filed a separate written version and has denied allegations of the complaint. OP No.3, Dr. P.S. Bhattacharya, of ESIC Hospital & Occupational Disease Centre, has stated in his written version that this OP has no liability towards the death of the patient, deceased Shankar Prasad. So, this OP has also prayed for dismissal of the complaint.
OP No.4 is the Medical Superintendent, of ESIC Hospital & Occupational Disease Centre, Thakurpukur, Joka. This OP has specifically denied the allegations made there in the complaint. This OP has also annexed certain documents to establish that there was no negligence for the death of Shankar Prasad.
Decision with reasons
Complainant filed affidavit-in-chief to which all the OPs filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OPs filed respective affidavit-in-chief to which Complainant filed questionnaire to which OPs replied.
Main points for determination are as follows :-
- Whether OPs were negligent in their discharge of duty as per their professional competence.
- Whether the standard of care required to be taken by the OPs remained absent.
- Whether the above facts and conduct of the OPs resulted into the death of Shankar Prasad.
- Whether Complainants are entitled to the reliefs which they have prayed in the complaint.
Points 1 & 2 – In this regard, there are evidences on behalf of the OPs wherein they have stated as to what happened in both hospitals i.e. ESIC Hospital and Saroj Gupta Cancer Centre & Research Institute, Thakurpukur. Complainant has filed affidavit-in-chief where they have reiterated the facts mentioned in the complaint petition.
Taking into account the averment of the complaint, affidavit-in-chief of the Complainants and affidavit-in-chief of the OPs, it appears that Complainants have alleged that since Shankar Prasad was not taken care of by the OPs, he died resulting into sufferings and loss of the Complainants.
On the contrary, OPs have stated that they took care of the patient as was required in the given circumstances. Complainants have filed certain copies of the documents in order to establish that Shankar Prasad was admitted first in ESIC Hospital and thereafter was taken to Saroj Gupta Cancer Centre & Research Institute, Thakurpukur, where he died on 1.5.2014. There is a copy of discharge certificate which reveals that during July, 2013, Shankar Prasad also remained in treatment. It is the allegation of the Complainants that Shankar Prasad was operated at Thakurpukur Cancer Institute for the rectum cancer and within a span of seven days at Saroj Gupta Cancer Centre & Research Institute, Thakurpukur, again made surgery by Dr. Arnab Gupta, OP No.5. Complainants alleged since there was deficiency and medical negligence by the Surgeon in the first operation, the second after a gap of only seven days was insisted. To this OP No.5 has stated that in a case of cancer this can happen and nobody can guarantee that the second operation will not be required.
Copy of death certificate is filed, which reveals that Shankar Prasad died on 1.5.2014. On behalf of OP No.5 some expert opinions have been filed. Ld. Advocate for OP No.5 submitted that on perusal of the opinion of the experts it is clear that there was no medical negligence on the part of OP No.5 while doing surgery. It appears that expert opinion has been filed from Tata Medical Centre, which is dt.27.8.2016 i.e. during the pendency of this proceeding. As per this report, Dr. Manas Kr.Roy, has stated that during both the operative procedures standard techniques were followed. There was nothing to suggest into the operative findings in error during the first and second surgery. He has also stated that only 5% patients may need second laparotomy for intestinal obstruction.
That means the second operation which Dr. Arnab Gupta did in the Thakurpukur Cancer Research Centre, was as per expert opinion of Tata Medical Centre is covered for only 5% patients. This in itself suggests that the first operation did not remain successful as it ought to have been. It is because had the first operation been successful there would not have been need of second operation. Accordingly, it indicates that there remained some sort of negligence in the first operation which was not expected of.
Similarly there is expert opinion of one Dr. Debasis Bhattacharya who has written to the Medical Superintendent of Saroj Gupta Cancer Centre & Research Institute, Thakurpukur, on 26.9.2016. This report reveals that Dr. has opined that he is unable to view CT Scan filed of the deceased which seems to have been given to the patient’s relatives. He has further opined that the patient developed cerebral hemorrhage. In all probability cases of metastatlashes which is not un common in a case of malignant melanoma. Further, this Doctor has opined that the patient was not shifted for a specialised neurological treatment in any neurological centre. He has also opined that ‘Patient’s relatives refused to shift the patient elsewhere’. In our view this opinion of this Doctor appears not justified because he was neither present at the time of surgery nor even met the relatives of the patient. He was approached only for furnishing expert opinion and not the opinion which he did not have competence to collect.
There is another report of Dr. A. K. Malhotra, Central Hospital, South Eastern Railway. This doctor has opined that the development of neurological problem, of Shankar Prasad would have been taken place and Dr. Arnab Gupta had followed all the standard procedures of surgery.
So, the picture emerges that OP No.5 who performed surgery on second occasion did not make any negligence as per the expert opinion. But, the main point is as to why Shankar Prasad was not shifted to any neurological specialized centre from Saroj Gupta Cancer Centre & Research Institute, Thakurpukur, where he died after about a lapse of seven days of detection of neurological problems.
In this regard, it is the contention of OP No.5 that he had advised the relatives of the patient to take him to any neurological specialized centre. But, they did not take the patient. It is the contention of OP No.5 in written version that Saroj Gupta Cancer Centre & Research Institute, Thakurpukur, is a renowned cancer hospital with about 300 beds. So, in all probability availability of ambulance can be expected and OP No.5 found that the patient needed the treatment of specialized neurological centre, why he was not shifted, there is no explanation forthcoming.
It appears that after ascertaining that the matter was to be referred to ESIC Hospital for such shifting OP No.5 wrote a letter and on that letter Medical Superintendent of ESIC wrote ‘may be shifted’ to a specialized neurological centre when the patient was at the Saroj Gupta Cancer Centre & Research Institute, Thakurpukur, for treatment of any neurological specialized Doctor. However, this caption ‘patient may be shifted’ to the hospital as per possible condition is an ambiguous connotation and this endorsement does not indicate that it was communicated to Saroj Gupta Cancer Centre & Research Institute, Thakurpukur. This makes it clear that both OP No.4 & 5 have equal liability.
On perusal of the prayer portion of the complaint petition, it appears that Complainants have sought a direction upon OP No.4 & 5 for furnishing the entire medical treatment records of the patient Shankar Prasad and another direction for payment of Rs.15,20,000/- to the Complainants. We have examined that OP No.4 & 5 are jointly and equally liable for death of Shankar Prasad because they both avoided taking standard care which was required at that time in order to saving the life of Shankar Prasad.
OP No.3 is Dr. P.S. Bhattacharya. He is also the Director of ESIC Hospital. It appears that the letter written by Saroj Gupta Cancer Centre & Research Institute, Thakurpukur, to Dr. P. S. Bhattacharya on 24.4.2014 was for shifting of the patient to any neurological specialized centre on which the endorsement has been put that patient may be shifted to this hospital if found in possible condition. So, Dr. P. S. Bhattacharya just made a cryptic endorsement and left the patient to as it is and did not exercise the standard of care which he was required to take.
Further, it appears that OP No.1 Dr. K. K. Maity on second occasion did excision of the anarectal polyp under spinal anaesthetia and again he took rectal mass through a punch biopsy for sending it to the laboratory for test. So, it appears that OP No.1 was not placed in a circumstance where he was expected to take care as was required in the situation. There is no specific allegation against OP No.1 for being negligent or having done any act which he was expected to do or omitted in doing an act which he was required to do. As such, prima facie, it appears that OP No.1 did not commit any negligent act.
OP No.2 Dr. Parimal Majhi, Deputy Medical Superintendent of ESIC Hospital in discharging of his official duty has an obligation to see that the patient having ESIC Cards are taken care of which are standard in nature. It is clear from the evidences that the death of Shankar Prasad was caused due to not taking proper and standard care after it was detected that he developed neurological problems after being operated on 2nd occasion by OP No.5 Dr. Arnab Gupta. Dr. Arnab Gupta being a senior surgeon, knowingly well that his patient requires specialized neurological care left under charge of Dr. Deep Das who was not a specialized neurologist and left for Delhi of course for his pre-occupations. But his pre-occupations cannot be justified by a doctor after leaving a patient un-cared who had developed neurological problem which was in all probability the outcome of surgery done by Dr. Arnab Gupta on second occasion within a span of seven days.
So, it is clear that OP No.2 to 5 are jointly liable for the negligent act which resulted in the death of Shankar Prasad.
Point 3 & 4 – Complainants have prayed for a special damage for the mental and physical harassment and agony, being sons of Shankar Prasad to the tune of Rs.6,00,000/-. However the conduct of these three Complainants who are sons of the deceased do not appear to be so. It is because the act and conduct which is revealed from the evidence do not make it clear that they performed their pious obligations towards their father and intelligently they made claim from wife of the deceased only to the extent of Rs.4,00,000/-. It appears to be unfortunate. It is because Complainants being the sons of the deceased Shankar Prasad were obliged to see that their father received the treatment which he was required after it was detected that he had developed neurological problems. But, their conduct do not justify it and so we are of the view that they are not entitled to any damage.
Now coming on to the special damage for mental shock and agony and loss of financial security to the wife, Complainant No.4, Smt. Lakhi Devi. In our view Complainant No.4 is the person whose life has become miserable and she has become unfortunate and is suffering so much which she cannot forget till her last. So, she required the most care and attention done if any damage is awarded that should go to the wife only.
Further, Complainants have prayed for punitive damage for irresponsibility to the tune of Rs.5,00,000/- and litigation cost of Rs.20,000/-.
We have examined that the liability of the OPs bearing No.2 to 5 are jointly liable. In the circumstances, we are of the view that OP No.2,3,4 & 5 be directed to pay as compensation to Complainant No.4 to the tune of Rs.2,00,000/- each i.e. OPs No.2 to 5 are equally liable.
Hence,
ordered
CC/88/2016 and the same is allowed on contest against OP No.2, 3, 4 & 5 and dismissed against OP No.1. OP No.2, 3, 4 & 5 are directed to pay individually Rs.2,00,000/- (in total Rs.8,00,000/-) to Complainant No.4 within two months of this order, in default this amount shall carry interest @ 10% from the date of this order till realization. The liabilities of OPs are joint and several.
