Jharkhand

StateCommission

A/82/2017

Raj Hospital,Main Road Ranchi and Others - Complainant(s)

Versus

Maya Sharma and Othrs - Opp.Party(s)

Chandrajit Mukherjee

22 May 2018

ORDER

BEFORE

THE JHARKHAND CONSUMER DISPUTES REDRESSAL COMMISSION

F.A. No. 82 of 2017

Appeal Filed on : 21/04/2017

Judgment Delivered on :22/05/2018

Against the Order dated 28.11.2016 passed by the learned District Consumer Disputes Redressal Forum, Ranchi in Consumer Case No. 185 of 2003.

 

1. The Raj Hospital, Main Road, Ranchi
2. Sri Jogesh Gambhir (Described as Yogesh Gambhir in the judgment of the lower Forum), son of late Kishen Gopal Gambhir, Director, Raj Hospital, Main Road, Ranchi.
3. Dr. D. Mohan, son of Rajendra Bihari Sharma, Raj Hospital, Main Road, Ranchi.
4. Dr. S. Midha, son of Sri A.K. Midha, resident of Sri Kishan Nagar, P.O. & P.S. Sukhdeo Nagar, District Ranchi

…O.Ps./ Appellants

-Versus-

1.     Maya Sharma widow of late Krishna Sharma

2.    Mamta Sharma wife of Sailesh Bhardwaj, resident of Murlipara Scheme, Jaipur,  Rajasthan.

3.     Rakesh Sharma son of late Krishna Sharma.

Nos. 1 & 3 residents of Anand Maai Maa Ashram Katchi Building, Main Road, Ranchi, Jharkhand. …Complainants/Respondents

              For the Appellants       :  Mr. Chandrajit Mukherjee, Advocate  

              For the Respondents    :  Ms. Rahul Gupta & Achinto Sen, Advocates

Present:

Hon’ble Mr. Justice Tapen Sen     -    President

Mrs. Shabnam Parveen                   -   Member

 

          J U D G M E N T

Hon’ble Mr. Justice Tapen Sen

          This Appeal is directed against the Judgment dated 28.11.2016 passed in Consumer Case No. 185 of 2003 by the learned District Consumer Forum at Ranchi (hereinafter referred to as the learned Lower Forum) by which these Appellants were held guilty of deficiency in service and negligence and were directed to pay a sum of Rs. 10 (Ten) Lakhs to the Respondents within a period of 60 days failing which, interest @ 12% was imposed upon them making it payable from the date of passing of the Order. A sum of Rs. 15,000/- (Rupees Fifteen Thousand) was also awarded towards Costs for litigation.

(2)               It appears that the said Complaint Case No. 185 of 2003 filed by the Respondents before the learned Lower Forum stood Dismissed vide Order dated 06.05.2004. The Respondents thereafter preferred an Appeal before this Commission being F.A. No. 226 of 2004 and it came to be allowed by Order dated 25.05.2005 directing these Appellants to pay the sum of Rs. 10 (Ten) Lakhs as compensation.

(3)               Being aggrieved, the Appellants moved up in Revision before the Hon’ble National Commission vide Revision Petition No. 1771 of 2005 which was disposed of 16.06.2009 remanding the matter to the Commission for deciding the case afresh.

                   The Commission, once again, by its Order dated 19.04.2010 passed in F.A. No. 226 of 2004 Ordered the Appellants to pay Rs. 10 (Ten) Lakhs after deducting the amounts already paid.

                   This Order was challenged before the National Commission vide Revision Petition No. 2602 of 2010 and 2722 of 2011.

(4)               Those Revision Petitions, by consent of parties, were disposed of 16.02.2016 setting aside the Impugned Orders remanding the same to the learned lower Forum for deciding the Complaint afresh after giving an opportunity to both the parties to examine experts in support of their respective cases and the amounts which the Appellants had deposited before the State Commission in compliance of an interim Order, was Ordered to remain in deposit during the pendency of the Complaint and the amounts already paid to the Complainants were not to be refunded.

(5)               It appears that thereafter the matter, on remand, was taken up by the learned lower Forum in Consumer Complaint Case No. 185 of 2003 and by its Order dated 28.11.2016, it was held that there was negligence and deficiency in service in providing treatment to the deceased Navin Kumar Sharma and accordingly, the Appellants were directed to pay compensation to the extent of Rs. 10 (Ten) Lakhs within 60 days failing which, the Complainants were made entitled to recover the said amount with interest @ 12% per annum from the date of the Order till realization/recovery making it further clear that the amount to be paid would be after deducting a sum of Rs. 2,50,000/- (Rupees Two Lakh Fifty Thousand) deposited by them before this Commission in compliance of Order dated 16.07.2009 passed by the Hon’ble National Commission in Revision Petition No. 1771 of 2005. Since out of the aforementioned amount, Rs. 1,25,000/-(Rupees One Lakh Twenty Five Thousand) had already been released in favor of the Respondents, it was Ordered that the Complainants/Respondents may withdraw the remaining amount from the State Commission. The learned lower Forum also recorded that the Hon’ble National Commission had also passed an Order on 03.08.2010 in Revision Petition No. 2602 of 2010 that a sum of Rs. 2,50,000/-(Rupees Two Lakhs Fifty Thousand) which was deposited by the Appellants by the said learned lower Forum be kept in fixed deposit, but no order was to be passed by the said learned lower Forum with respect to that amount in view of the Order dated 03.08.2010 referred to above. A sum of Rs. 50,000/-(Rupees Fifty Thousand) by way of litigation Costs was also allowed.

(6)               It is against the aforementioned Order/judgment dated 28.11.2016 passed by the learned lower Forum in Consumer Case No. 185 of 2003 that this Appeal has been filed before us.

(7)               The short facts which led to the instant litigation are that Navin Kumar Sharma the son of the original Complainant, Krishna Sharma (now deceased and substituted by the present Respondents) was admitted in the Appellant No. 1 Hospital, being the Raj Hospital, Main Road, Ranchi at 10:45 pm on 06.03.2003. One Dr. Nath treated him and on the advice of the Appellant No. 3 (Dr. D. Mohan). He was attended to by the Appellant Nos. 3 and 4 on 07.03.2003 at 11:30 am but the patient died at 9:40 pm. The Respondent initially claimed a sum of Rs. 15 Lakhs (Rupees Fifteen Lakhs) for the death of Navin and alleged that the death had occurred due to negligence and/or deficiency in service on the part of the Appellants.

(8)               We will first deal with the case of the Complainants/Respondents before we deal with the case of the Appellants. Their case has been placed before us very strenuously by Mr. Rahul Gupta, learned Counsel, who has argued that it is shocking that in spite of the fact Dr. D. Mohan was the Consultant-in-charge, he was not even present in the hospital at the relevant hour and time and therefore, the resident doctor, namely, Dr. J. Nath had to attend on his behalf and do the needful. He telephonically informed Dr. D. Mohan, who, in turn, advised some medicines listed at Page-23 (Sheet No.1 of the Bed-head Ticket). In other words, the treatment started only with telephonic conversations which was an example of extreme apathy and gross negligence on the part of the hospital and/or its doctors.

(9)               According to him, such an action on the part of the consultant-in-charge in choosing to remain elsewhere or in the confines of his home at a time when his presence was of utmost importance, amounts to gross misdemeanor and the action of the hospital in allowing him such a benefit, was equally irresponsible.

(10)   The Respondents then contended that Page-23 of Sheet No. 1 would show that the Doctor(s) at the Hospital, merely, and on the on the basis of telephonic advice of Dr. D. Mohan, proceeded to prescribe/administer medicines without bothering to even evaluate and diagnose the ailment of Navin.

(11)   The Respondents, while drawing our attention to Page-24 being Sheet No. 2, pointed out that on 07.03.2003 at 12:15 AM, the patient had complained of pain in the penis and fullness in the stomach, which itself was a factor to consider seriously but instead, Dr. J. Nath again sought telephonic advice of the Consultant-in-charge, who, again prescribed a typical medicine for urinary tract infection viz. Urispas and a normal common antibiotic being Norflox-400. He also prescribed a common pain-killer namely, Fortwin. This, according the Respondents, was an example of utter negligence, apathy and lethargy on the part of the hospital and or its Doctors to treat a serious patient in a cavalier manner.  

(12)   The Respondents have submitted that the condition of the patient had not improved even at 9:30 AM and he had vomited in the night with severe pain in the abdomen. His stool had also not passed. Instead of attending to him immediately, Dr. D. Mohan came for the first time at 11:30 am and wrote “S/A” (seen and attended). However, he did not advise any further course of action except to refer the patient to one Dr. Midha { as would be evident from Page-25 (Sheet No. 3) }. Dr. D. Midha examined the patient and advised ultrasonography of the kidney and of the urinary bladder with tests for Blood Sugar (Random) and Serum Creatinine. These were done, and it was found that there were multiple large sized stones in the urinary bladder and also in the lower end of the ureter. The USG Report also disclosed mild distention in the left kidney but in the USG Report of Nidan Hospital, the opinion was that there was “Ascites” in the right kidney. “Ascites” is an abnormal accumulation of serous fluid (resembling serum) in the spaces between tissues and organs in the cavity of the abdomen.

(13)   Drawing our attention to Page-33 of the Memo of Appeal, the Respondents have submitted that Serum Amylase was recorded at 247 U/L (Units per Liter) as on 07.03.2003, which was indeed very high indicating that the patient was suffering from Pancreatitis. Sheet No. 4 at Page- 26 of the Memo of Appeal would show that Dr. S. Midha had recommended Serum Amylase test. The USG Report was before the doctor at 3:30 PM and at 5:00 PM, the test for Serum Amylase was made. This recommendation was made on 07.03.2003 and the USG report referred to above also mentioned 07.03.2003. Yet, although the USG Report was before the Doctor at 3:30 PM, Sheet No. 4 does not show what action was taken to tackle the situation. All that was recorded at Sheet No. 4 was again, an advice to administer-Taxim-1-gm and 1-Ampoule of Calcium Sandoz. Some more injections were also prescribed but beyond that, there is nothing to show as to what action was taken to tackle Pancreatitis.

(14)   Sheet No. 5 is the final page which records that the patient was dead clinically.

(15)   These are instances which, according to the Respondents, would establish extreme apathy and negligence on the part of the doctors and of the hospital. The Bed-head ticket is totally silent on what treatment was contemplated or given to the patient to deal with pancreatitis.

(16)   There are 4 (four) Expert’s Opinions in this case. While 2 (two) are in favour of the Opposite Parties between Pages- 45 to 53 of the Memo of Appeal, the other two are in favour of the Appellants. These are between Pages-38 to 44 of the Memo of appeal. 

(17)   Mr. Gupta, relying upon the literature at Page-37, very fairly stated that he did not dispute that contents of the Textbook of Medicine annexed by the Appellants vide Annexure-R-3. He submitted that Mr. Chandrajit Mukherjee had handed over to him a pen-drive which contains the entire Textbook (Annexure-3). He then drew our attention to Page-37 of the Memo of Appeal, being a portion of the said Textbook submitting that under the Heading “Clinical Features” embodied in the literature referred to above, almost all the symptoms as mentioned therein were present when the deceased was brought into the hospital and therefore, having not attended to the same, the Appellants are certainly liable for deficiency in service and of negligence.

(18)   We are afraid, we cannot accept the submissions of the Respondents. It is true that Navin Kumar Sharma, aged about 26, years was admitted in the hospital with severe abdominal pain which was radiating from the umbilical region to the groin. Dr. J. Nath, a senior Doctor, who had treated him, prescribed antibiotics and pain killers. He had also mentioned that nothing should be administered orally and that is why he mentioned at Page 20, “Nil Orally”. He advised Injection Ciplox (Antibiotic), Injection Metrogyl (Antibiotic), Injection Zinetac (Antacid), Injection Tramazac (Pain Killer) and Injection Stemetil (Anti vomiting). These facts find corroboration in the Expert opinion of Dr.RS Das at Page-39.

The same medicines were again prescribed by Dr. D. Mohan (Page-23). He had also prescribed certain tests to ascertain the reason for the pain.

(19)   The day-to-day Reports (Bed-head Tickets) would show that on 07.03.2003 at about 11:30 A.M., an ultrasonography was done which found multiple large sized stones in the urinary bladder and also detected one stone in the lower end of the ureter.

                   The presence of stones in the urinary bladder was the probable cause for the pain in the abdomen but to be on the safe side, the doctors, after having examined the patient on 07.03.2003 at 3:30 PM advised certain other tests including Serum Amylase, SGPT, Alkaline Phosphate and Serum Bilirubin. These tests were conducted, and the result showed an alarmingly high level of Serum Amylase thereby inducing the doctors to conclude that the patient had developed Pancreatitis.

Due to such a severe condition, the patient could not be stabilized, and he ultimately passed away on the same day at 9:40 P.M.

The Provisional Report at page 33 of the Memo of Appeal shows that Serum Amylase was found to be 247 U/L (Units per Litre).

(20)   The 9^th Edition of the Text Book of Medicine (photocopy of the relevant pages whereof have been brought on record vide Annexure-3) and the relevant portion is at page 37. The same reads as follows:- “Acute pancreatitis can be diagnosed by the presence of typical clinical features along with corroborative laboratory findings of elevated serum enzymes (amylase/lipase) ……….” [SIC].

In the same book and in the same page, it has also been mentioned that “Acute pancreatitis (AP) is an acute inflammatory process of the pancreas with variable involvement of other regional tissues or remote organs. Mild acute pancreatitis consists of minimal or no organ dysfunction and an uneventful recovery. Severe pancreatitis manifests as organ failure and/or local complications such as necrosis, abscess, or pseudocyst (Table 1). Overall, about 20% of patients with acute pancreatitis have a severe course, and 0% to 30% of those with severe acute pancreatitis die”. [SIC]

(21)   Again, in the same page and in the same Book, the Clinical Features highlight that at the onset, there would be abdominal pain and such pain is associated with nausea and vomiting. In the instant case, Page-21, (Annexure-2 of the Clinical Notes), reads “pain abdomen started in umbilicus and then radiating to the groin associated with vomiting” and therefore, the symptoms with which the patient was brought in, clearly suggested, on the basis of the USG Report, that it was a case, of pain in the abdomen, multiple stones and the doctors, at that stage had no occasion to conclude that he was suffering from pancreatitis because as per the literature, if it was at all a case of acute pancreatitis, then the pain would have radiated to the back but in the case of Navin, the pain was radiating downwards through the penis. Pancreatitis was only subsequently detected at 5.00 PM when the tests revealed that Serum Amylase had shot up to 247 U/L when, the normal range should have been less than 100 Units per Liter.

(22)   According to us, the said literature (Annexure-3) is a pointer to the fact that 0% to 30% of patients suffering from acute pancreatitis die but, does it mean that all patients suffering from pancreatitis would die? The answer would be an emphatic “NO” because the condition is definitely curable and such a condition is not “the end of the road” for patients with pancreatitis.

In the instant case, what is therefore necessary to be found out is whether, in the facts of this case, sufficient steps were taken by the Appellants for the treatment of pancreatitis? The answer, would be in the affirmative because from the records, it is evident that sufficient steps were taken to firstly, tackle abdominal pain and then, as soon as there was a disclosure indicating pancreatitis, to deal with that situation also.

(23)   The patient was brought into the hospital in a painful condition. He came to the hospital at 10:45 PM and was admitted under “Casualty Bedhead No. 5099” (Page-20). 10:45 PM, is a time when all Doctors cannot be expected to be present at the hospital. What is expected however, is that there should be at least one Doctor entrusted with the responsibility of attending to the patients and in the instant case, it was Dr. J. Nath who was doing the rounds on that day. Naturally therefore, he had to attend, and we do not find any irregularity in his action. In fact, Page 20 of the Memo of Appeal would support the contention that since there was only pain in the groin, Dr. J. Nath dutifully prescribed medicines and also prescribed some tests. These medicines are the same medicines which were advised by Dr. D. Mohan on telephone on the same date that is 06.03.2003 at 11:15 pm (page-23). Therefore, proper care was taken, and neither Dr.J.Nath nor Dr. D. Mohan were negligent or insincere. Any suggestions to the contrary, cannot be accepted by us for more reasons than one as taken into consideration by us in the paragraphs following hereafter.

(24)   It is evident that the patient was never left unattended because even at 12:50 AM of 07.03.03, when the patient was complaining of pain in the penis and fullness in the stomach, Dr. J. Nath promptly sought telephonic advice of Dr. D. Mohan since the latter was the consultant-in-charge who prescribed some more medicines. Therefore, despite odd hours, both doctors were putting their conscious efforts and their “heads together” to attend to the patient and merely because Dr. D. Mohan was not present on the site, does not mean that he did not render valuable assistance to Dr. J. Nath albeit via telephone.

(25)   The Bedhead Tickets would also show proper care by the doctors. In morning of 07.03.2003 at about 9:30 am, it was found that the patient had been vomiting in the night and abdominal pain had not subsided and stool had also not passed. Therefore, at 11:30 AM, when Dr. D. Mohan came to the hospital and examined the patient and mentioned “Abdomen Distention” and “Few Bowel Sounds” on the Progress Sheet (Bedhead Ticket), he (Dr. D. Mohan) felt that a Surgeon should be consulted and therefore, he sought further opinion and referred the patient to Dr. S. Midha, a Surgeon, who came to the hospital on the request of Dr. D. Mohan. Upon examination, he felt that USG of the kidney and of the urinary bladder should be undertaken together with Blood Sugar (Random) and tests for Serum Creatinine.

(26)   The USG Report was placed before the Doctor around 3:30 PM showing multiple large sized stones in the urinary bladder as well as one in the lower end of the ureter. It also showed mild dilatation in the left kidney. These are factors which would establish that what the USG showed at Page-25, was already assessed by Dr. J. Nath at the time of admission of the patient because he had put a question mark and mentioned “?D Ureteric colic” (Page-20) and therefore, the Doctors cannot be held responsible for negligence or lapses on their part.

(27)   In fact, we are of the view that there was no negligence or discrepancy in the treatment of the patient at least till 07.03.2003 (3:30 PM). Since all other vital parameters of the patient were normal, there was no occasion to suspect the onset of Pancreatitis. Facts would amply establish that the Appellants had no hand in the death of the patient since he was brought in with a condition of severe pain and all indications at that point of time suggested stones or ureteric colic. He died subsequently, and Pancreatitis could be detected only much later but these Appellants cannot be held responsible. The facts disclose that at the time of admission and during the period of the ensuing treatment, there were no Reports which were suggestive of Pancreatitis. It was only after 5.00 PM of 07.03.2003 that Serum Amylase @ 247 U/L was detected and immediately thereafter, “all-out” efforts were made by the Doctors to deal with the same but at 9.40 PM, he died (i.e. within 4-1/2 hours after detection of Serum Amylase @ 247 u/l).   

(28)   Dr. Midha had seen the patient at 3:30 PM and it was only at 5:00 PM of 07.03.2003 that he wanted a test done on Serum Amylase. The Reports are to be found at Page-33 and although this Report has not been incorporated in the Bedhead Ticket, that by itself, cannot be a factor for us to assume negligence because all reports are not necessarily recorded or inserted in the Bedhead Tickets.

(29)   Thus, it was only for the first time at 5:00 PM of 07.03.2003, that the doctors came to know that the patient was suffering from Pancreatitis. This fact was not known to them either at 10:45 PM of 06.03.2003 when the Patient had been admitted with pain in the abdomen or prior to 5.00 PM of 7.4.2003. The moment Pancreatitis was detected on the basis of the report of Serum Amylase, the doctors immediately geared up for the situation and started administering medicines pertaining to Pancreatitis by prescribing medicines mentioned on the right-hand column of Page-26.

(30)   The fact that the Doctors began treatment on a “war-footing” would be evident from the fact that these medicines mentioned at Page-26 were different from the medicines prescribed at Pages-20 and 23 when the patient had been brought in with abdominal pain and therefore, it cannot be said that there was no application of mind in dealing with the situation. Since the condition did not improve, he was advised to be shifted to be I.C.U. and was put on Injection Efcorlin and Injection Dopamine. The aforesaid two medicines Efcorlin and Dopamine were administered at 9:30 PM (Page-28). These would go to show that the doctors were treating the patient to the best of their abilities, but it was unfortunate that he died on the same day at 9:40 PM.

(31)   Now, Page-48 of the Memo of Appeal contains the Report of one Dr. G.S. Vats who, at page 48, opined under Heading “b-(ii)” that “the treating doctors did not keep in mind the obvious possibility of acute pancreatitis which is a very serious emergency condition. Had they considered this possibility, they would have immediately got done certain crucial tests such as serum calcium level estimation and a CT scan. This was not done. It may be mentioned that they thought of serum calcium only at 8.25 pm, about an hour before death. In any case, this test was apparently never done.”

(32)   We cannot appreciate the comments of Dr. Vats. Sitting in the comfort and confines of his office, making disastrous comments and spinning “doomsday yarns” against Doctors who had struggled so hard without fully appreciating the status of the patient qua the efforts of the hospital and its Doctors, can at best, be termed as “most uncharitable” when  the fact remained that Serum Calcium Level Estimation had already been requested by the doctors on 07.03.2003 at 8:25 PM itself. However, before those tests could actually be done, the condition of the patient deteriorated to the extent that he had to be shifted to the ICU. The entire scene that has unfolded before us, go to show that it was only when the Report of Serum Amylase came, that all “hell broke loose” and the Doctors, on their part, left no stones unturned in extending their whole-hearted support. Therefore, it cannot be said that the Doctors were not applying their minds on all aspects. Unfortunately, and as ill luck would have it, the patient passed away at 9:45 PM.

(33)   We may, at this stage, once again advert to the Report of Vats. While criticizing the Appellants, at Page-48 in the matter pertaining to recording the cause of death in the Death Certificate as being “CR failure”, we must say that this was also uncalled for because all deaths necessarily mean and involve a complete shut-down of the heart and of the lungs, which, in medical parlance, is oft referred to as Cardio Respiratory Failure (CR Failure).

(34)   The other Expert, Dr. Samir Rai, while submitting his report committed one faux pas after another by firstly mentioning that “urinary stones are almost never associated with abdominal distention and faint or decreased bowel sounds. Such a picture is strongly suggestive of acute pancreatitis. It appears that this possibility was not entertained, and the diagnosis was missed.” (Page-51). 

(35)   We are inclined to agree with the submissions of the Appellants that Dr. Samir Rai never said that “urinary stones are never associated…..”. His remarks appear to be hypothetical when he said “Urinary stones are almost never associated ….”. In other words, there are always chances that urinary stones, in some cases can be associated with abdominal pain/distention and decreased bowel sounds.

(36)   Dr. Samir Rai cannot be trusted because he has committed another faux pas at paragraph-4 where he has recorded something which is not even on the record of this case by mentioning that “it is surprising that the death certificate has mentioned chronic renal failure as the cause of death. There is no evidence that this patient had any chronic renal failure.”

(37)   The Death Certificate, at Page-35, shows that the cause of death was “CR failure” and therefore, there was no occasion for Dr. Samir Rai to veer off at a tangent to create a new case which was not the case of the parties and it was totally out of context.            

(38)   Contrary to Vats and Rai, Page 39 of the Memo of Appeal contains the Report of another expert, namely Dr. R.S. Das. This doctor, has categorically stated at Paragraph-2, that the manner in which the patient was treated was absolutely apposite and the doctors cannot be faulted. Pages-23 & 39 would establish that whatever was done at the level of the Appellants received the approval of Dr. RS Das in his Report which, incidentally, is also in line with the medical literature referred to above.

(39)   It is at this stage that we must advert to the comments of Dr. Ravi Shankar Das once again. At Page-40, paras (5) to (11) clearly supports the actions taken qua the deceased patient by the Doctors and the hospital.

(40)   Dr. A.K. Agarwal, another expert has also given a similar report supporting the action taken by the Doctors of this hospital.

(41)   When we look into the “Clinical Features” (Page-37) incorporated in the Medical Literature referred to above, we find that it says: - “Abdominal pain is present at the onset, but the timing of abdominal pain is variable. Biliary colic may herald or progress to acute pancreatitis. Alcohol-related acute pancreatitis frequently occurs 1 to 3 days following drinking. The pain radiates to back and is associated with nausea and vomiting. Its onset is rapid and reaches maximal intensity in 10 to 20 minutes. Occasionally, pain takes several hours to reach maximum intensity. Physical findings depend on the severity of an attack. Patients with mild pancreatitis may not appear acutely ill and have mild abdominal tenderness. In severe pancreatitis, patients look severely ill and often have abdominal distention, especially epigastric, which is due to gastric ileus or dilation of the transverse colon. Bowel sounds are reduced and may be absent”.

          In the context of the above, let us carefully examine the Bed-head Tickets. At the time of admission on 06.03.2003 at 10.45 PM, Dr. J. Nath examined the patient and noted down his condition by writing “pain in groin started from umbilicus? D Ureteric Colic”. He then advised on the same lines as per the opinion of Dr. Ravi Shankar Das referred to above. There were no signs of “Biliary Colic”. The pain was not radiating to the back. On the contrary, the pain was originating from the umbilicus and was radiating to the groin. There was vomiting but the pain did not radiate to the back. At 07.30 AM in the morning, the patient was found to have vomited in the night but the USG Report at 11.30 showed “large sized stones in the urinary bladder and also one stone in the lower end of the ureter. There was also mild dilation in the left kidney”. Enough evidence to completely “baffle” any person beyond his wits ! We suppose that even the Doctors were completely “baffled” – they did not have a clue that behind the “veil”, lurked pancreatitis in the backyard. The doctors therefore had no option but to tread on the beaten path of conventional analysis innocently suspecting anything but pancreatitis. 

                   We are therefore inclined to agree with Mr. Mukherjee who, while relying upon Page-37 submitted that the heading “Clinical Features” clearly mentions that a patient with pancreatitis may not appear to be acutely ill and occasionally the pain would take several hours, to intensify. It is steady and moderate to very severe in intensity. In fact, the paragraph under heading “Clinical Features” begins with the words that abdominal pain is present at the onset, but the timing of such pain is variable. We are not inclined to accept the submissions of the Respondents to the effect that all symptoms showing pancreatitis were already prevalent and yet, the doctors did not address the situation on 07.03.2003 when at 9.30 AM, they had encountered the patient who was suffering from abdominal pain, had vomited in the night and his stool had not passed. We are afraid, we cannot fasten liability on the doctors on this aspect because till then, there was no occasion for the doctors to even remotely suspect pancreatitis. That occasion arose when at 5.00 PM, the Serum Amylase Report disclosed a reading of 247 u/l. Prior to that and upto 3.30 pm, the doctors were looking at the X-ray and USG Reports which mentioned multiple large sized stones in the urinary bladder and also, one stone in the lower end of the ureter. There was mild dilation in the left kidney. Beyond these, there was nothing. These indications cannot be stretched to implicate a doctor by saying that he must have necessarily diagnosed the condition as pancreatitis even without supportive materials, to wit, a Report on serum amylase. Clinical pathology plays a vitally important role and one is reminded of Arthur Hailey’s “The Final Diagnosis” which lays stress on this part of medicine making it one of the most important facets in the process of diagnosing an ailment. While today some may not entirely agree with such a sweeping generalization of the statement, it remains a fact that pathology forms the bedrock of medicine.

                  Under the circumstances, we are satisfied that there was no fault on the part of the Doctors.

(42)   Since we are satisfied that there was no lapse on the part of the Appellants, we must indicate, while referring to the Expert Opinions, that when there are two views possible, fastening responsibility on the basis of one is unjustified and that too, when there is overwhelming evidence to show that the treatments given were all in good faith. We are satisfied that the treatment given was neither deficient nor was there any negligence on the part of the Appellants. The parameters to determine medical negligence have been succinctly laid down by the Hon’ble Supreme Court in the case of Malay Kumar Ganguly Versus Dr. Sukumar Mukherjee reported in (2009) 9 SCC 221. In para-157 of the said judgment, their Lordships have held that for establishing negligence or deficiency of service, the Courts would determine the following: -

(i)      No guarantee is given by any doctor or surgeon that the patient would be cured;

(ii)     The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill;

(iii)    Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence;

(iv)    Failure to act in accordance with the standard, reasonable, competent medical means at     the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence;

(v)     In a complicated case, the court would be slow in contributing negligence on the part of   the doctor, if he is performing his duties to the best of his ability.

(43)   In yet another judgement of the Hon’ble Supreme Court passed in the case of Martin F.D’Souza Versus Mohd. Ishaq, reported in AIR 2009 SC 2049 their Lordships have held that a medical practitioner is not liable to be held negligent simply because things went wrong or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable ONLY where his conduct fell below that of the standards of a reasonably competent practitioner in his field. Like in this case, it is not enough to show that there is a body of competent professional Opinions which considers that the decision of the accused professional was a wrong decision, because there also exists a body of professional Opinions, equally competent, which supports the decision as reasonable in the circumstances.

(44)   In the same judgment (ibid) their Lordships have gone further to hold that negligence of the doctor must be gross amounting to recklessness. In this case, we neither find any element to conclude that the conduct of these Doctors or of the Hospital suffered from abject recklessness nor to say to them “to lowest pitch of abject fortune thou art fallen”.

(45)   In yet another judgment of the Hon’ble Supreme Court passed in the case of Kusum Sharma & Others Versus Batra Hospital and Medical Research Centre And Others reported in (2010) 3 SCC 480, their Lordships have held that a doctor must have a reasonable degree of skill and knowledge. He must also exercise care of a reasonable degree, neither highest nor very low, in the light of the particular circumstances of a case. He would be liable only where his conduct falls below that of a reasonably competent doctor. Divergence of opinion with other doctors is not, by itself, sufficient to infer negligence. We are more than satisfied that the Doctors involved in this case were quite competent and divergence of opinion between the Experts is not at all a reason to infer negligence or deficiency in service on their part.

(46)   While we are still on this aspect, we must point out that Mr. Rahul Gupta, in his concluding address specifically stated that the Respondents have never questioned the competence of Dr. J. Nath but what they are aggrieved at is that the patient was admitted under Dr. D. Mohan and despite the seriousness of the situation, he did not personally come to examine him. We have already dealt with this aspect in our foregoing paragraphs and we must once again proceed to reject this contention because, merely being admitted under Dr. D. Mohan does not imply that the other doctor who was present would be precluded from attending to the patient. That other doctor, being Dr. J. Nath, was competent enough and his line of treatment, in consultation with Dr. D. Mohan, cannot be faulted. The other submission that if Dr. J. Nath was himself competent, then why did he have to mention the words “on telephonic advice of Dr. D. Mohan”, is equally unacceptable because while Dr. J. Nath never faltered in the line of treatment, was truthful and mentioned exactly what transpired. This cannot establish medical negligence, nor can the doctors be blamed for continuing with the treatment, albeit through telephone. We do not find any gross misconduct on the part of either Dr. J. Nath or Dr. D. Mohan.

(47)   Dr. Ravi Shankar Das, in his Report/Medical Opinion at Page-39 has stated that emergency treatment or initial treatment for ureteric colic and pancreatitis is exactly the same. His opinion says that in such cases, the treatment should be (a) to keep the patient nil orally; (b) to administer antibiotics; (c) to administer IV Fluids; and (d) to subside pain by pain killers. This is exactly what Dr. J. Nath did at 11.15 PM of 06.03.2003 as would be evident from Page-23 of Sheet No.1. We have sympathies for the family of Navin but how can we ignore these recorded events and hold the Appellants guilty?

In the result, this Appeal must succeed, and it is accordingly allowed to do so. The Appeal is ALLOWED, and the impugned order/ judgement dated 28.11.2016 passed in Consumer Case No. 185 of 2003 by the learned District Consumer Forum at Ranchi, is hereby set aside. Any amount that may have been deposited by the Appellants pursuant to one or other order is directed to be returned to them. However, if any amount deposited by the Appellants has already been withdrawn or paid to the Respondents, the same shall not be claimed by the Appellants.

          NO ORDER AS TO COSTS.

Let a free copy of this Order be issued to all concerned for information and needful.

 

      Ranchi,

      Dated:-  22/05/2018

                            

 

Member                                                                                   President

                                                                                          (Justice Tapen Sen)