District Consumer Disputes Redressal Forum

Dakshin Dinajpur

Surya Sen Sarani Municipal Building, 1^st Floor, Balurghat Dakshin Dinajpur Pin - 733101.

Telefax: 03522-270013

Consumer Complaint No.: 16/2006

Order No.25

Dt. 27.08.2008

Present (1) Sri S. K. Ghosh - Presiding Member

(2) Samiksha Bhattacharya - Lady Member

Counsel(s) (1) Sri Anish Das - Advocate for the complainant

(2) Sri Sushovan Chatterjee - Advocate for the OP Nos. 1 & 2

This is to consider an application U/s 12 of the C.P. Act, 1986 filed by the complainant praying for compensation as well as cost against the Opposite Parties. The complainant nominated and appointed her husband viz. Sri Ratanmoni Roy @ Ratan Roy as her lawful attorney in connection with the said case as the complainant is not able to move without wheel-chair or help of other persons.

Facts of the case, in brief, is that the complainant felt in serious ill on 09.07.2006 and on next day the complainant went to Dr. P. Kuheli who was attached to Railway Hospital Malda. Dr. Kuheli examined her and advised for ECG and Ultra Sonography. Accordingly the complainant went to Malda Nursing Home for that reason.

Thereafter Dr. Kuheli referred the complainant to Surgeon as it is case of a surgery. The complainant went to Dr. Somnath Chatterjee attached with a Nursing Home viz. Basanti Seva Kendra Nursing Home and holistic polyclinic situated at Chakbhabani Balurghat, Dakshin Dinajpur for her treatment. As per advice of Dr. S. Chatterjee the complainant was admitted in the said Nursing Home on 11.08.2006 and discharged on 15.08.2006. The said patient was suffering from cholelithiasis and Dr. S. Chatterjee operated laparoscopic cholecystectomy on 12.08.2006. After getting released from the said Nursing Home the complainant used to take medicine as per prescription of Dr. S. Chatterjee. The complainant paid necessary fees for Nursing Home operation and examination in Doctor’s chamber as per demand by them. Thereafter, the complainant became unfit to move anywhere. The complainant informed to Dr. S. Chatterjee regarding deterioration of physical condition of the complainant. But Dr. S. Chatterjee did not pay any heed to the complainant. The OP Dr. referred the complainant to Dr. P. Mukherjee R.G. Kar Medical College & Hospital Kolkata, where the complainant was treated on 21.08.2006. Thereafter the complainant was admitted under Dr. Indranil Saha and referred to AMRI Hospital Kolkata where she was treated in several times. The complainant day-by-day became bed ridden and is not in a position to move anywhere. The complainant has sustained financial loss due to medical treatment as well as medical treatment regarding faulty operation done by Dr. S. Chatterjee. The complainant prayed for compensation of Rs.5,00,000/- and cost due to deficiency in service on the part of Dr. and Nursing Home. Thereafter the complainant filed an amendment petition on 11.04.2007. In the said petition the complainant stated that at about 70,000/- towards her treatment at Apollo Hospital Chennai has already been incurred. Hence the application.

The OP Nos. 1 & 2 contested this case by filing written version stating inter alia that Dr. S. Chatterjee is a well-known and reputed surgeon throughout the district of Uttar Dinajpur and Dakshin Dinajpur and even of North Bengal. He is very much experienced in surgery. The complainant was for so many times examined by OP No.1 in post-operation. The OP No.2 Basanti Seva Kendra Prop. of Sri Sribhas Biswas is not having any separate chamber now. The complainant after operation visited several times the chamber of Dr. S. Chatterjee on foot and not by the help of stretcher or ambulance. The complainant was never referred by OP No.1 to Dr. P. Mukherjee of R.G. Kar Medical College & Hospital Kolkata and Paramount Nursing Home Kolkata. The complainant on her accord visited several places without any reasonable cause. Paramount Nursing Home is not a renowned medical institution in Kolkata. OPs also stated that the complainant is completely cured.

She may have other minor and negligible problems which are not at all related with the alleged operation done by Dr. S. Chatterjee. Dr. S. Chatterjee is always sincere and careful in his profession and operation has been done with due diligence and proper care, so there is no negligence or fault on the part of OP No.1. The claim by the complainant is fictitious. Thus, the said complaint is liable to be rejected. The Ld. Counsel for OPs also filed a written objection against the amendment petition dt.11.04.2007. In the said petition OP Nos. 1 & 2 stated that the complainant is at liberty to go anywhere, as she likes for a regular check up at Apollo Hospital of Chennai. That the averments of the amendment petition cannot be included in the case as the same shall change the nature and character of the original petition and hence the petition is liable to be dismissed. Regarding amendment petition filed by the complainant on 11.04.2007, the said petition dt. 11.04.2007 and objection filed by OPs. are accepted and kept with the record. Heard both sides. The complainant is directed to file affidavit in chief and necessary documents as per Order No.6 dt. 03.05.2007.

From the aforesaid contentions made by the both parties following points fall for consideration :

1. Whether the OP No.1 Dr. Somnath Chatterjee has maintained a reasonable degree of skill of knowledge as well as exercised of reasonable degree of care to the complainant patient?

2. Whether the consumer-complainant is entitled to get any relief as prayed for?

3. Whether there is any deficiency in service or gross medical negligence on the part of OPs, Doctor and Nursing Home?

Decision with reasons:

Point Nos.1, 2 & 3:- Both parties filed relevant documents at the time of hearing which are kept with record. We have considered the submission of both sides with reference to the materials on record.

We heard contentions of Ld. Counsels for both parties and perused all material documents, evidence, prescriptions, report, bills etc. produced before us with reference to relevant provisions of law. Ld. Forum also perused the written argument filed by both parties. At the first, the Ld. Forum tries to settle up the definition of ‘negligence’ or ‘medical negligence’- “negligence’ means an omission to do something which a reasonable and prudent person guided by the consideration, which ordinarily regulate human affairs would do something, which a prudent and reasonable person would not do.

According to–‘Modi on Medical Jurisprudence professionally negligence or medical negligence may be defined – as want of reasonable degree of care and skill or willful negligence on the part of medical practioners in the treatment of a patient with whom a relation of professional attendant is established, as so to lead to his bodily injury or to loss of his life (M/s. Ravanamma v M/s. Vijaya Hospital 1991(2) CRP 210.’

It was decided in many cases with an error of judgement on the apart of doctor can be executed, and a reasonable degree of care and skill is expected, but if the person professes to be a specialist in the field, then the highest degree of skill is motted. A doctor is liable when he feels below the standard of a reasonably competent practioner in his field, so such, so that his conduct might be deserving of census or inexcusable. The hospitals are equally liable for action of Paramedical staff or its doctors. Similarly, a Nursing Home may be held negligent if the conduct any staff betrays lacks of competence to execute the instructions delivered to them in the treatment of a patient. Primary liability of a Hospital /Nursing Home remains, if it is deficient in service like failure to supply the equipment necessary for the treatment of the patient or to supply Video Film or CD Cassette regarding treatment of the patient. In cases involving surgeries or high risk operations or where potential for mortality or complications is highly probable it is necessary to maintain Video Film or CD Cassette and give one copy under receipt to the patient on discharge. It is a duty of doctor as well as Nursing Home. In this respect Ld. Forum perused the prescription of Dr. S. Chatterjee General & Laparoscopic Surgon dt. 17.07.2006. It appears that there is an endorsement “consent for lapchole- cassette”. Moreover, the OPs committed to handover the CD Cassette in respect of operation of patient but they did not hand over the same to the complainant in spite of repeated request causing deficiency in service or gross negligence on the part of OP Nos.1 & 2 jointly. So in this respect OPs are liable jointly in respect of non-supply of CD cassette. The Ld. Forum perused the discharge certificate dt. 14.08.2006. It appears from the said certificate that the complainant admitted in the Nursing Home namely Basanti Seva Kendra i.e. OP No.2 on 11.08.2006 and discharge on 15.08.2006. The said patient was suffering from cholelithiasis. It is admitted fact that Dr. S. Chatterjee i.e. OP No.1 operated laparoscopic cholecystectomy on 12.08.2006. After getting released from the said Nursing Home i.e. OP No.2 the complainant used to take medicine as prescribed by OP No.1 in schedule manner and she was checked up by the said doctor i.e. OP No.1. The Ld. Forum also perused the report regarding Hematology, examination of blood, X-ray dt. 02.08.2006 done by MMC Diagnostic Centre, Malda as well as perused the report of examination of urine dt. 22.08.2006 done by Dr. P. Mukherjee attached to the New Niramory Clinic.

The Ld. Forum further perused the report of whole abdomen dt. 23.08.2006 done by Dr. Ashok Maulik attached to the Raghunathpur Sono Scane Centre. All reports indicate that Dr. S. Chatterjee i.e. OP No.1 referred the complainant to the above named centre/clinic in several occasion. It is admitted fact that the complainant was referred to AMRI Hospital Kolkata, as such the complainant shifted to AMRI Hospital Kolkata and treated under care of Dr. Indranil Saha firstly on 25.08.2006. In this respect the Ld. Forum perused the documents dt. 25.08.2006 in respect of ERCP of the complainant where referring doctor was Dr. S. Chatterjee i.e. OP No.1 and the consultant practioner was Dr. Indranil Saha. As per report of ERCP of the complainant dt. 15.10.2006, it is clear that the clips were seen very near to the narrowing and across stricture under fluoroscopy guidance. In the impression of the said report indicates ‘CBD stricture stent removal followed by restenting done’ Ld. Forum also perused another ERCP report of the complainant dt. 04.09.2006 done in AMRI Hospital Kolkata referred by Dr. S. Chatterjee i.e. OP No.1. In the said report, it appears that more or less same view as per ERCP report dt. 15.10.2006, it appears that the “clips were seen very near to the narrowing and stricture under fluroscopy guidance” and in the impression of the said report CBD stricture. So from the above analysis it is clear that the complainant got information at first that the biliary stricture i.e. injury has been made when she sent to Dr. Indranil Saha for ERCP test on 04.09.2006. Ld. Forum further perused the discharge certificate of Paramount Nursing Home Pvt. Ltd. Kolkata dt. 08.09.2006. In the said Nursing Home the complainant was admitted on 02.09.2006 and discharge on 03.09.2006. In the said discharge certificate nature of illness indicated biliary stricture i.e. injury and for that reason ERCP as well as stenting was done by Dr. Indranil Saha. It is admitted that the complainant felt a serious physical problem day-by-day due to biliary stricture and for that reason the complainant went to the Apollo Hospital Chennai on 12.12.2006. The Ld. Forum perused the discharge summary of Apollo Hospital Chennai issued by Dr. Prasanna Kumar Reddy - Consultant Surgical Gastroenterologist along with junior consultant Dr. Venkat. In the said discharge summary it appears that the complainant was admitted on 12.12.2006. She was operated on 13.12.2006 and discharged on 20.12.2006. So, it is admitted that the complainant stayed at Apollo Hospital for clear 9 (nine) days. In the said report the diagnosis indicates – post cholecystectomy biliary stricture / obstructive jaundice and surgery in respect of laparotomy Roux-en-y hepatico jejunostomy was done.

“If we put some questions regarding report dt. 19.12.2006 issued by Apollo Hospital, Chennai the actual factum comes out from the said report easily by way of questions and answers form which is described below”:-

1. Who operated the cholecystectomy ?

Ans.: Dr. S. Chatterjee i.e. OP No.1.

2. On which date it was operated ?

Ans. On 12^th August, 2006

3. Whether Dr. S. Chatterjee, i.e. OP No.1 has maintained a reasonable degree of skill of knowledge as well as exercised reasonable degree of care ?

Ans. No, because 38 years old female patient i.e. complainant who had undergone laparoscopic cholecystectomy elsewhere presented with history of jaundice. Evaluation revealed post cholecystectomy biliary stricture (CHD stricture).

4. Whether the said stricture was identified or not ?

Ans. Yes. The dilated biliary confluence proximal to stricture identified.

5. What types of diagnosis made by Dr. P. K. Reddy Apollo Hospital, Chennai?

Ans. Post cholecystectomy biliary stricture / obstructive jaundice.

So it appears that complaint of jaundice following cholecystectomy which was operated by Dr. S. Chatterjee i.e. OP No.1 on 12^th August, 2006 persistent due to stricture CBD. The said discharge summary also indicates that the ’30 years old female patient who had undergone laparoscopic cholecystectomy elsewhere presented with history of jaundice, evaluation revealed post cholecystectomy biliary stricture (CHD stricture). After preoperative work up she underwent laparotomy Roux-en-y hepatico jejunostomy. Doctors of the concerned hospital endorsed in findings that the biliary stricture at the level of common hepatic duct just disposal to the confluence Bilioma in the sub hepatic region. The CBD was exposed. The dilated biliary confluence proximal to stricture identified. Abdomen closed in layers using 1-Ovicryl, 1-loop and skin clips. Skin clips (alternate) removed on VII post operative day. The Ld. Forum accepted the discharge summary report dated 19.12.2006 issued by Dr. Prasanna Kumar Reddy M.B, F.R.C.S. (E), F.A.C.G. (USA), Dip.in Surgical Laparoscopy (Fr) of Apollo Hospital Chennnai as an expert opinion report as well as a scientific report.

From the above discussions it is clear that cholecystectomy operations / surgery was done on 12^th August, 2006 by Dr. S. Chatterjee OP No.1 causing biliary stricture i.e injury by which the complainant was suffering from jaundice. From the report dated 19.12.2006 from Apollo Hospital Chennai, it appears clearly that the evaluation reveal post cholecystectomy biliary stricture (CHD stricture) and for that reason the complainant underwent hepatico jejunostomy. It is observed that a medical practioner has various duties towards his patients and must act with a reasonable degree of skill and knowledge and must exercised a reasonable care.

This is the least which a patient expects from a doctor / medical practioner. So ordinary and reasonable care and skill should be applied at all times with all patients. As a specialist more care is expected from doctor/medical practioner. For that reason the complainant visited the chamber of OP No.1 several times for getting good treatment from the end OP No.1 but in vain. When the complainant was informed regarding biliary stricture i.e injury done by OP No.1 the complainant has lost the good faith upon the OP No.1. Thereafter the complainant stopped to go there. In cross-examination CW-1 stated that he understood the faulty operation after getting the ERCP report. CW-1 also stated in cross-examination that he produced ERCP report before the OP No.1. In such situation it should be the duty of OP No.1 that without concealing the actual fact try to improve the condition of the patient i.e. complainant in the instant case if something has gone wrong. But OP No.1 Dr. S. Chatterjee did not perform the said duty. Ld. Counsel for OP Nos.1 & 2 did not produce any witnesses before the Ld. Forum for defence his case. Moreover, the Ld. Counsel for OPs. failed to examine the witness i.e. CW-1 on the basis of original documents though the said documents has already been filed by the Ld. Counsel for complainant on 14.07.2008. An opportunity regarding further examination of witness on the basis of original documents was given by the Ld. Forum to the Ld. Counsel for OPs as per Order No.22 dated 16.07.2008, but the Ld. Counsel for OPs has failed to take this opportunity. It is also clear that the ERCP report dt. 15.10.2006 and 04.09.2006 of AMRI Hospital, Kolkata, corroborated the report dt. 19.12.2006 issued by Dr. Prasanna Kumar Reddy , M.B, F.R.C.S. (E), F..A.C.G. (USA), Dip.in Surgical Laparoscopy (Fr) Apollo Hospital Chennai.

Therefore, the Ld. Forum comes into conclusion that doctor OP No.1 has failed to act with a reasonable degree of skill and knowledge as well as has failed to exercise a reasonable degree of care at the time of operation/surgery causing biliary stricture i.e. injury and obstructive jaundice which amounts to deficiency in service and gross medical negligence on the part of OP No.1 Dr. S. Chatterjee.

Both OP Nos. 1 & 2 are jointly liable for non-supply of CD cassette in spite of repeated request by the complainant causing deficiency in service and gross medical negligence on the part of OP Nos. 1 & 2.

So, the complainant is entitled to get relief as against OP Nos. 1 & 2.

Accordingly, Point Nos. 1, 2 & 3 are decided on the basis of aforesaid findings. Hence.

O R D E R E D

That the Consumer Complaint No. 16/2008 is allowed on contest with cost of Rs.35,000/- assessed by the Ld. Forum.

That the OP No. 1 Dr. S. Chatterjee is hereby directed to pay compensation of Rs.4,50,000/- (Four lakh fifty thousand) only to the complainant within 15^th October, 2008 as there is gross medical negligence and deficiency in service on the part of OP No.1.

That the OP No.1 Dr. S. Chatterjee is hereby directed to pay cost of Rs.25,000/- (Twenty five thousand) only to the complainant within 15 October, 2008.

That the OP No.2 Sribhas Biswas Prop., Basanti Seva Kendra (Nursing Home) is hereby directed to pay compensation of Rs.15,000/-(Fifteen thousand) only to the complainant within 15^th October, 2008 due to non-supply of CD Cassette.

That the OP No.2 Sribhas Biswas Prop. Basanti Seva Kendra (Nursing Home) is hereby directed to pay cost of Rs.10,000/-(Ten thousand) only to the complainant within 15^th October, 2008.

That the OP No.1 Dr. S. Chatterjee is hereby further directed to pay compensation of Rs.4,50,000/- (Four lakhs fifty thousand) + cost of Rs.25,000/-(Twenty five thousand) only i.e. total of Rs. 4,75,000/- (Four lakh seventy five thousand) only to the complainant within 15 October, 2008. If not paid within the specified period of time the said amount shall bear interest @ 8% p.a. till full payment.

That the OP No.2 Sribhas Biswas Prop., Basanti Seva Kendra (Nursing Home) is hereby further directed to pay compensation of Rs.15,000/-(Fifteen thousand) + cost of Rs.10,000/- (Ten thousand) only i.e. total of Rs. 25,000/- (Twenty five thousand) only to the complainant within 15^th October, 2008. If not paid within the specified period of time the said amount shall bear interest @ 8% p.a. till full payment.

That the case could not be disposed of within the specified period of time as the Ld. Advocates took adjournments several times as well as for adducing evidence etc.

Let a copy of this order be supplied to the parties free of cost.

I agree,

By order of this Forum