Date of filing: 04/05/2018
Date of Judgment: 02/08/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed under section 12 of the Consumer Protection Act, 1986 by Sri Kalachand Chatterjee alleging deficiency in providing medical service and negligence on the part of the opposite parties (referred as OPs hereinafter) namely (1) Peerless Hospitex Hospital and Research Centre Ltd. (2) Dr. Khaunish Das (3) Charnock Hospitals Pvt. Ltd. (4) Dr. Subhabrata Ganguly (5) Dum Dum Municipal Specialized Hospital and Cancer Research Centre and (6) Dr. N. Bagchi.
Complainant case in short is that his wife namely Anita Chatterjee had pain in her abdomen on or about 01/12/2017. So they went to OP 3 Charnock Hospital on 04/12/2017 where a doctor administered some injection and told the complainant that the condition of his wife was not serious to admit. Ultrasonography was advised by the said doctor. So complainant and his wife went to pathological Laboratory for Ultrasonography on 11/12/2017 and received a report on 12/12/2017. The report stated that a simple cyst is seen in the left lobe of liver and the Intrahepatic Biliary Radical are mildly dilated. Report further stated that proximal and mid CVD is dilated (15.6 mm) and distal CBD has not properly evaluated due to bowel gas. The complainant thereafter had consulted Dr. Jana in his chamber at OP 5 on 14/12/2017 who after seeing all the reports had advised the complainant’s wife to get a MRCP done. So on 18/12/2017 MRCP test was duly carried out and a report was given by R.B. Diagnostic Centre on 20/12/2017. So complainant again went to Dr. Jana on 21/12/2017 with the reports who then referred the complainant’s wife to gastroenterologist and further suggested endoscopic USG or ERCP + Biopsy. As per the advise by Dr. Jana, complainant went to OP 4 on 22/12/2017 who is a gastroenterologist attached with OP 3. OP 4 Dr.
Ganguly told the complainant that his wife did not require surgery and advised the complainant to do several test. So complainant got those test reports of his wife on 27/12/2017 and also C.T. Scan of her whole abdomen was done as advised by OP 4. The C.T. Scan of her whole abdomen revealed the impression of simple hepatic cyst; post cholecystectomy status, dilated common bile duct and proximal and mid portion with abrupt narrowing and central Intrahepatic biliary radicles are mildly dilated... MRCP / ERCP suggested; mild persistence bowel wall thickening at the part of Duodenun and Mild in Homogenously enhancing mural thickening at ileocaecal Region.
After getting the C.T. Scan report on 30/12/2017, OP 4 was consulted on 03/01/2018 who then advised a Upper CSI Endoscopy and SVE. So the test of Upper CSI Endoscopy was done by OP 4 himself. But the entire procedure could not be completed as told by the OP 4 due to obstruction. Thereafter, OP No. 4 told the complainant and his wife that since the entire procedure of Upper CSI Endoscopy could not be carried out, Endoscopic Ultrasound test needs to be carried out. He than informed to the complainant that such procedure was carried out in few hospitals only and Peerless Hospital / OP 1 being one of them. So on the advice of OP 4 complainant approached the OP 2 Dr. Das with his wife at OP 1 Hospital who carried the said procedure of Endoscopic Ultrasound on 09/02/2018. After the procedure was over OP 2 told the complainant that everything was normal and he could take his wife after she regains consciousness. So after the complainant’s wife was conscious he took his wife along with staff of OP 1 to the car in a stretcher but complainant’s wife started complaining of severe pain in her abdomen. So she was brought back to OP 1 within few minutes and complainant tried to contact OP 2. But he could not be contacted and his mobile phone was switched off. So complainant approached the nurses in the said hospital who was taking care of complainant’s wife during the procedure but the nurse told the complainant to take her home and to see that his wife takes rest. So having no other option complainant took his wife to home although she was facing pain in her abdomen and also had vomited several times. On contacting the OP 1, the official therein assured the complainant that it was natural for any person undergoing such procedure and so complainant should not worry. But the pain of the complainant’s wife increased at home for which complainant was constrained to take his wife at OP 3 on the following date i.e. 10/02/2017 at about 4.39 A.M. She was immediately admitted and transferred to ICU and OP 4 recommended C.T. Scan of the entire abdomen which was carried out and the report came at about 5.00 P.M. on that date. Several other blood test as well as X-ray and E.C.G. were carried out. After seeing those reports OP 4 consulted OP 6 Dr. Bagchi who said that the patient was very unstable and requires immediate operation as she was suffering D2 perforation with peritoneal soiling. Complainant was explained by OP 4 and OP 6 that while conducting the procedure of endoscopic ultrasound, the device performing such procedure had perforated a vessel known as D2 inside the body of the patient which needed immediate correction by way of surgery. As such the complainant was constrained to give consent for surgery. The operation went on more than 4 hours after which OP 6 had told the complainant that most of the bile which had spilled out was cleared by him. But however the perforation which had already occurred could not be completely plugged as the damage caused by such perforation seemed irreparable. After the complainant’s wife was taken out from the operation theatre she was put on ventilation. However on 12/02/2018 at 1.00 a.m. the complainant’s wife died. The cause of death was stated in the Death Certificate as septic shock in a case of Latrogenic Duodenal Perforation. If the OP 1 & 2 had informed the complainant that there was a D2 perforation during the procedure of endoscopic ultrasound than immediate steps would have been taken for correction of the same avoiding the death of complainant’s wife. But the same was not done by OP 1 & 2 and as such they are equally responsible for the death of the wife of the complainant. The standard medical and clinical procedure followed worldwide in case of perforation is endoscopic clipping or endoscopy clip to repair the perforation. The said procedure could have been followed by Dr. D.K. Das himself while conducting endoscopic ultrasound but the same was not done either by Dr. Das / OP 2 or some other surgeon connected with Peerless Hospital. If the urgent admission was done and surgery was organized to repair the perforation and to clean out the soiling happen due to perforation could have saved the complainant’s wife as the surgery would have happened within 2 to 4 hours of perforation. So the wife of the complainant died due to the negligence on the part of the OPs 1 & 2 and 3 & 4 are vicariously liable for the acts of OP 1 & 2. Thus the present complaint is filed for directing the opposite parties 1 & 2 to refund the sum 9,960/- paid by the complainant for performing endoscopic ultrasound upon his wife, to direct the opposite parties to pay Rs. 18,00,000/- jointly and or severally as damages for mental agony, to direct the Medical Council of India to enquire into the matter and to take appropriate step and to direct OPs to pay cost of the proceeding of Rs. 1,00,000/-.
OP 1 hospital has contested the case by filing the written version contending inter-alia that the complainant of his own had selected the OP 2 Dr. without involving the OP 1 hospital and as such the OP 1 hospital cannot be liable for any negligence or deficiency on the part of OP 2. The wife of the complainant was never admitted in the OP 1 hospital for treatment and she was the patient of OP 4 Dr. and was referred by him to OP 2 as disclosed in the complaint. It is further contended that for the investigation, the wife of the complainant had visited the OPD of the OP 1 as advised by OP 2 only for the purpose of endoscopic ultrasound of his patient and availed the hospital infrastructural facilities at its OPD. After the procedure of endoscopic ultrasound was completed the patient was kept in observation. When no complication observed patient was released from OPD of gastroenterology. Patient thereafter did not return. It is also contended that in view of enactment of West Bengal Clinical Establishment (Registration, Regulation and Transparency) Act, 2019 which is a special statute, this commission has no jurisdiction to entertain the complaint. It is further contended that OP 2 had conducted the procedure of endoscopic ultrasound rightly and there was no medical negligence caused or committed by OP 1 and OP 2. Thus OP 1 has prayed for dismissal of the complaint against the OP 1 hospital.
OP 2 Dr. Das has also contested the case by filing separate written version denying the allegation made by the complainant contending inter-alia that OP 4 Dr. Ganguly had called him in late January 2018 that he had referred one patient namely Anita Chatterjee for endoscopic ultrasound as the patient was suspected of having a tumor in lower end of common bile duct. So she was referred for performing EUS to come to a conclusion regarding presence of the tumor. OP 2 had performed the EUS at around 4.40 p.m. on 09/02/2018 and before he started the procedure the relatives of the patient was made aware of the consequences including the risk of suffering perforation. The procedure was conducted with the consent and declaration signed by the relative of the patient. The entire procedure of endoscopic ultrasound was started at around 4.40 p.m. on 09/02/2018 and it lasted for about 20/30 minutes which was uneventful and no tumour was visible. The relative of the patient was informed the result of the procedure. No abdominal pain or discomfort were observed or presented by the patient till her release from the OP 1 hospital. It is further contention of the OP 2 that he had only asked Dr. Ganguly OP 4 on 10.02.2018 to explore the possibility of a post procedure complication as perforation is possible chance / risk of the procedure of EUS. It was only after such timely advice of OP 2 that investigation were started to check the probability of perforation and ultimately surgery was performed. It is further contended that the patient had already undergone a series of investigation including USG, MRCP, Endoscopy in a short duration and the perforation might have happened in any of those investigation and the situation might have worsened after EUS. The patient remained in the OP 1 hospital for a sufficient period of time but during such time the patient did not complain of any pain or discomfort. The patient collapsed after the surgery at OP 3 hospital as the condition of the patient deteriorated after the surgery due to progressive shock and ultimately the patient succumbed to multi organ failure caused by metabolic acidosis. There has not been any negligence on the part of OP 2 during the treatment of the patient and thus OP 2 has prayed for dismissal of the case.
OP 3 has contested the case by filing a separate written version contending inter-alia that the present complaint is premature because the complainant has prayed as prayer (C) that the Medical Council of India be directed to enquire into the matter and to take appropriate step against the opposite parties. So unless the proper enquiry is done by Medical Council of India there cannot be any correct conclusion by this commission. It is further contended by the OP 3 that the patient Anita Chatterjee had visited OP 3 on 04/12/2017 and was attended by Dr. of OP 3 who administered proper treatment and suggested some test for proper diagnosis thereafter she left. She was admitted only on 10/02/2018 in critical condition. The doctor who treated her advised to transfer to ICU and subsequently C.T. Scan of whole abdomen was carried out along with other test X-ray and ECG in OP 3 hospital and thereafter she was referred to OP 6 one of the surgeon associated with OP 3 hospital who after consulting the reports advised immediate operation as the patient was suffering from D2 perforation with peritoneal soiling. The operation was conducted under the care of OP 6 who immediately after the operation explained that most of the bile which had spilled out of the perforation which had already occurred due to the damage caused by such perforation could not be repaired in two layers. Despite the best efforts of the doctor of OP 3 hospital the life of the patient could not be saved and she breathed her last on 12/02/2018 at around 1 O’clock in the midnight. It is further contended specifically that the endoscopic ultrasound was conducted by OP 2 in the OP 1 hospital and thus OP 3 hospital or its doctors were not at all involved in such procedure and so they cannot be held responsible for the death of the wife of the complainant. The complainant himself has admitted that there is no deficiency in service as against OP 3 hospital and thus OP has prayed for dismissal of the case.
OP 4 has also filed the written version contending specifically that he had seen the patient for the first time on 21/12/2017 and she was clinically examined by him on that date and had gone through the medical treatment records brought by the complainants. The patient had given history of one episode of severe pain abdomen around 20 days back for which she was admitted at OP 3 hospital, emergency department and was treated conservatively. Later on the patient since deceased underwent a MRCP which had showed bile duct dilation and lower end CBD mass which was suggestive of malignancy i.e. Periampulary Malignancy. OP 4 had advised few blood tests including LFT which showed raised alkaline phosphatise. ERCP correlation was suggested. During that time it was seen that blood tumor marker CA19 9 of the patient was normal. So OP4 to rule out other causes of abdomen pain advised for endoscopic ultrasound. Endoscopic Ultrasound was done by OP 2 at OP 1 hospital. The patient was thereafter admitted on 10/02/2018 at 5.20 a.m. at OP 3 hospital. OP 4 examined the patient on that date at around 9.00 a.m. and since the patient had undergone EUS on 09/02/2018 at around 5.00 p.m. at OP 1 hospital, he had taken the detail history from the complainant i.e. the husband of the patient who complained that the patient was discharged with severe pain in abdomen and vomiting after the procedure and in spite of the complaint no measure was taken. The patient had no document suggestive of any preoperative complication during EUS so the OP 4 had done C.T. Scan of abdomen along with other investigation and thereafter referred the patient to OP 6. From the C.T. Scan it was seen that the patient was suffering from duodenal injury and which was already suspected by OP 4. Thereafter surgery was conducted by OP 6 and post surgery the patient was kept in ICU with support of ventilation but it is unfortunate that despite such medical support and care, patient died on 12/02/2018 due to septic shock. It is further contended that OP 4 had no knowledge what had happened in the Peerless Hospital during the EUS and post procedure period. OP 4 has done which a prudent medical man in his place would have done. There has not been any medical negligence on the part of the OP 4 and thus OP 4 has prayed for dismissal of the case.
OP 6 has also filed a separate written statement contending specifically that patient Anita Chatterjee was referred to him by Dr. Ganguly OP 4 for further treatment as she was suffering from preoperative complication during EUS. C.T. Scan was done and from the report it transpired that patient was suffering from duodenal injury. The complainant was informed about the need for an urgent surgery as well as high risk involved in the exploratory laparotomy. Initially complainant denied giving his consent but finally when he gave the consent, exploratory laparotomy was conducted under general anaesthesia. Dr. Ganguly was present in the O.T. throughout the surgery. It was a difficult surgery as whole abdomen was in bad shape. Duodenal injury was documented during surgery and it was repaired. Post surgery the patient was kept in ICU support under ventilation and was served with the medicines but despite medical care and support the patient breathed her last on 12/02/2018 due to septic shock. The complainant has not raised any allegation against OP 6 anywhere in the complaint. There has not been any medical negligence on the part of the OP 6 and thus he has prayed for dismissal of the case against him.
OP 5 hospital did not take any step on service of notice, so the case has been heard exparte against it.
During the course of trial, both parties have filed their respective examination in chiefs on affidavit followed by filing of questionnaires and reply thereto and ultimately argument has been heard of both sides. All the parties have also filed their respective brief notes of arguments.
Both parties have placed reliance on some decisions of the Hon’ble Supreme Court which will be discussed if relevant at appropriate stage while discussing the relevant point.
So upon consideration of cases of both sides, following points are required to be determined:-
- Whether the present complaint is maintainable under the provision of Consumer Protection Act?
- Whether there was any negligence on the part of OPs during the medical treatment of the patient Anita Chatterjee?
- Whether the complainant is entitled to the reliefs as prayed for?
DECISION WITH REASONS
Point No. 1:
It is the specific contention of the OP 1 hospital that this forum (now Commission) lacks jurisdiction to entertain the complaint so far it relates to OP 1 hospital in view of the Enactment of West Bengal Clinical Establishment (Registration, Regulation and Transparency) Act, 2017 which is a special statute and the complainant is not entitled to file any complaint against the clinical establishment. Even though Ld. Advocate has not specified the said provision, however it appears that section 46 of the Act bars the jurisdiction of the civil court. Section 46 of the said Act provides that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating authority or West Bengal Clinical Establishment Regulatory Commission is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken in pursuance of any power conferred by or under this Act.
So the emphasis in the section is that a civil court has no jurisdiction to initiate proceeding against the clinical establishment or the hospital. But the consumer forum is a quasi-judicial body empowered to provide speedy and simple redressal to consumer disputes. It is not a Civil Court. Moreover section 3 of the Consumer Protection Act 1986 (section 100 of Consumer Protection Act, 2019) is very specific that the remedies under the Act are in addition to and not in derogation of any other law applicable.
In case of IREO GRACE REALTECH Pvt. Ltd. Vs Abhishek Khanna & others, Hon’ble Apex Court taking into consideration of various decision of Hon’ble Apex Court held that “various judgements of this court have upheld the applicability of provision of Consumer Protection Act as an additional remedy, despite the existence of remedies under special statues including the arbitration and conciliation Act, 1996”.
Complainant in this case has claimed that due to negligence during medical treatment of his wife by the hospitals and doctors i.e. OP 2, 4 and 6 attached with those hospitals, his wife died. Since the complainant had the remedy available before this forum, he did not approach other forum or statutory body. Under West Bengal Clinical Establishment (Registration, Regulation and Transparency) Act, 2017, complainant could file complaint only against the hospital but not against treating doctors for which there would have been multiplicity of proceeding and so possibilities of giving conflicting decisions.
So far as the contention of OP 1 hospital that other legal heirs of deceased have not been impleaded in this case, it may be mentioned that no name of other legal heirs is forthcoming. However even accepting that there are other legal heirs but it is evident from the medical documents as well as cases of both parties that complainant had hired the ‘service’ of the hospitals and the doctors, on payment of consideration by him. So he is not only a legal heir but also a beneficiary and had hired the service of the OPs.
So in view of the discussions as highlighted above, contention of OP 1 hospital that this commission has no jurisdiction and the complaint is not maintainable, is devoid of any merits and thus not accepted.
Point No. 2 & 3:
Both these points are taken up together for discussion in order to avoid repetition.
In this case at the very outset it may be pertinent to point out that though this case relates to medical negligence allegedly on the part of OP hospitals and the doctors i.e. OP 2 attached with OP 1 hospital and the doctors OP 4 & 6 attached with OP 3 hospital but due to certain statements by the OP 2 Doctor Khaunish Das and OP 4 Doctor Subhabrata Ganguly in the written versions filed by them separately, the matter to be adjudicated has become precise and limited.
It is a settled principle of law that the initial burden is on the party alleging medical negligence and seeking reliefs thereby, to establish by sufficient material to arrive at a conclusion that the death was due to the medical negligence on the part of the hospital and the doctor who treated the patient.
It may however be pointed out that series of investigation has been conducted by the doctors on different dates from 04.12.2017 when the complainant’s wife had approached OP 3 hospital as she had abdomen pain to till 10.02.2018 but it is unfortunate that in that process of investigations only complainant’s wife lost her life. Even till end the doctors treating her and suggesting several investigations could not diagnosed what was the actual cause for which complainant’s wife was suffering from abdomen pain. However as this case mainly rest upon the investigation conducted by doctor OP 4 at OP 3 hospital and doctor OP 2 at OP 1 hospital, same being more relevant are thus required to be discussed. Prior to that Dr. Jana who sits at OP 5 hospital was consulted who actually had advised the complainant and his wife on seeing the reports of Ultrasonography carried by the complainant to get a MRCP done. MRCP was carried out on 18.12.2017 in a diagnostic centre and as per the MRCP report it contained the impression “MRCP study shows a small ill defined soft tissue lesion at terminal part of CBD causing abrupt termination and pancreaticobiliary duct dilation favouring periampullary growth-endoscopic ultrasound and biopsy suggested”. Thereafter Dr. Jana on seeing report of MRCP suggested USG or ERCP + Biopsy and referred complainant’s wife to gastroenterologist. So complainant went to OP 4 doctor Subhabrata Ganguly on 22.12.2017.
OP 4 doctor Ganguly again advised some blood test which was carried and thereafter he further advised C.T. Scan of the whole abdomen of the complainant on 27/12/2017. C.T. scan was done and complainant went to OP 4 with the report on 03.01.2018 who advised an upper CSI Endoscopy and SVE and the same was done by OP 4 Dr. Ganguly himself on 16.01.2018 but as procedure could not be completed due to obstruction, as claimed by the complainant told to him by Dr. Ganguly, Dr. Ganguly advised that Endoscopic Ultrasound Test needs to be carried out for ascertaining the real problem. He than referred the complainant and his wife to OP 2 Dr. Das.
It may be mentioned here that as already highlighted above that Dr. Jana on seeing the report of MRCP had already suggested Endoscopic USG or ERCP + biopsy on 21.12.2017 and he had referred to Gastroenterologist. However OP 4 Dr. Ganguly once again advised several blood tests and thereafter C. T. Scan and further did upper CSI Endoscopy but according to complainant he was told by OP 4 doctor Ganguly that procedure was not completed due to obstructions he than referred the patient to OP 2 Dr. Das for the same Endoscopic Ultrasound. However OP 4 Dr. Ganguly has stated in his written version that the procedure of upper GI Endoscopy was complete but he has not explained why he referred the patient to Dr. Das for EUS. According to OP 4 Dr. Ganguly he had opted for EUS rather than ERCP and biopsy suggested by Dr. Jana considering the diagnostic confusion. It is already highlighted above that Dr. Jana on seeing the report of MRCP suggested USG or ERCP + Biopsy. So if according to OP 4 Dr. Ganguly procedure of upper G1 Endoscopy was successfully carried out by him than OP 4 ought to have explained why same was necessary as it is evident that ultimately he also advised for Endoscopic Ultrasound. It is already discussed above that it is perplexing to observe that despite series of investigations and tests conducted upon the patient but true cause of abdomen pain could not be diagnosed by the doctors till her death. They just continued with the investigations only till she died.
Now coming to the Endoscopic Ultrasound performed by OP 2 Dr. Das, it appears that the same was performed on 09.02.2018 at OP 1 hospital. According to complainant, procedure was started at about 5.46 p.m. whereas according to OP 2 he had performed it at around 4.40 p.m.
Complainant has alleged that after the procedure was over OP 2 Dr. Das had told the complainant that he had checked and everything was normal and his wife will be conscious in a short time and he can take her home. But when he took his wife after she was conscious, with the help of staff of OP 1 hospital in a stretcher till the car, he had to take back his wife to OP 1 hospital as his wife was complaining of severe pain in her abdomen. Complainant tried to contact Dr. Das / OP 2 over mobile phone but his mobile phone was switched off. Complainant was also informed at OP 1 hospital that OP 2 had already left. So complainant contacted the staff especially the nurse who was taking care of complainant’s wife during the procedure that his wife was facing severe pain but he was told to take his wife and to ensure that she takes rest. So being compelled complainant took his wife but on way she vomited several time and when complainant contacted official of OP 1, they assured that vomiting after such procedure was normal. But since pain of complainant’s wife increased, complainant was constrained to bring his wife to OP 3 hospital wherein she was admitted on 10.02.2017 at 4.39 A.M. and was immediately transferred to Intensive Care Unit.
The claim of the complainant that after the procedure of Endoscopic Ultrasound, when his wife was conscious, he took her out till car with the help of staffs of OP 1, but she started complaining of pain and was vomiting and in spite of his complain she was not attended and no measure was taken by the OP 1 or by OP 2, is strengthened from the statement of Dr. Ganguly in his written version. It is categorically stated by OP 4 Dr. Ganguly that
“It is imperative to note that OP 4 doctor had taken detailed history from the patient’s husband when he complained that the patient, since deceased was discharged with severe pain in abdomen and vomiting after procedure and in spite of complaint no measures were taken”.
Patient, since deceased had severe pain after the procedure of EUS at OP 1 hospital by OP 2 Dr. Das but on being contacted by the complainant to OP 1, he was told to take her home and OP 2 Dr. Das already left the hospital keeping his mobile phone no switched off and so complainant was constrained to take his wife to OP 3 hospital is well established from the very fact that patient since deceased was taken at OP 3 hospital early in the morning on the following day of performance of EUS and she was admitted at 4.39 A.M. and was immediately taken to ICU. Apparently condition of the complainant’s wife was very serious. It is also stated by OP 3 Charnock Hospital that on 10/02/2018 patient was admitted in a critical condition. Even though OP 3 Charnock Hospital has not stated the specific time, the patient was brought and admitted but according to complainant she was admitted at 4.39 in the morning. In the treatment sheet filed by the complainant though the date of admission is stated on 10.02.2018 but time has not been stated. However according to OP 4 Dr. Ganguly patient was admitted at 5.20 A.M.
It may be pertinent to point out that in this case time is major factor as the delay in treatment and the subsequent surgery on 10.02.2018 is of greater significance.
According to OP 4 Dr. Ganguly, he was informed by the OP 3 hospital at around 8.40 A.M. on 10.02.2018 but no document is forthcoming before this commission that he was informed actually at 8.40 A.M. Neither OP 3 Charnock Hospital has explained as to why Dr. Ganguly under whom patient Anita Chatterjee since deceased was under treatment since 21.12.2017 was not immediately informed even though according to OP 3 hospital patient was brought and admitted in a critical condition. There was several blood test, X-ray, ECG and C.T. Scan of whole abdomen and it is only at 5.45 P.M. it was found that the patient was suffering from duodenal injury. Dr. Ganguly had referred the patient to OP 6 Dr. Bagchi of OP 3 hospital and decision of urgent Laprotomy which according to OP 4 & 6 Dr. Ganguly and Dr. Bagchi was life saving, was made. Lapratomy was done under general anaesthesia at 6.30 P.M. as appears from treatment sheet. According to OP 6 Dr. Bagchi it was a difficult surgery as whole abdomen was in bad shape. According to complainant Dr. Bagchi had told the complainant that most of the bile which had spilled out was cleared by him but however perforation which had already occurred could not be completely plugged in as much the damage caused by such perforation seemed irreparable.
It appears that patient was kept in ICU under ventilation and she died on 12.02.2018 at 1.00 A.M. and the cause of death has been recorded “Septic shock in a case of Latrogenic Duodenal Perforation”.
On a careful scrutiny of the written version especially the written version filed by OP 3 Charnock hospital it is stated therein that Dr. OP 4 and Dr. Bagchi / OP 6 explained that “while conducting the procedure of ultrasound endoscopy, the device performing such procedure had perforated duodenam leading to retroperitoneal spillage of Bile and pancreatic fluid inside the body cavity of the wife of the complainant”.
So it is evident from above made statement that duodenum perforation happened during the procedure of ultrasound endoscopy. OP 2 Dr. Das who had performed the EUS has stated that procedure was done with the consent of the relative of the patient and they were informed the risk factor and the consequences of the EUS. OP 2 Dr. Das further stated that there is always a risk involved of having duodenal perforation after EUS which can clinically present immediately or be delayed. According to OP 2 the procedure of EUS done by him was uneventful, meaning uncomplicated and no tumor was visible. He has also stated that it was he who had asked Dr. Ganguly to explore the possibility of a post procedure complication as perforation is a possible chance / risk of the procedure of EUS. It is stated by him that on the next morning i.e. 10.02.2018 when he had called Dr. Ganguly to enquire about another patient, OP2 Dr. Das was informed that the patient Anita Chatterjee has been admitted in the OP 3 hospital early in the morning with probable acute pancreatitis. So he asked Dr. Ganguly to explore the possibility of a post procedure complication of perforation.
It may be pertinent to point out that in this case a strange aspect can be seen. In the continuation sheet of treatment Dr. Ganguly has noted that “I contacted personally Dr. Kshaunish Das who has done the EUS regarding the condition of the patient. As per him, the procedure was uneventful”. Even though OP 4 Dr Ganguly did not state anything in this regard in the written version filed by him.
So according to OP 4 Dr. Ganguly, it is he who called Dr. Das whereas according to Dr. Das he called Dr. Ganguly and informed him to explore the possibilities of post procedure complication of perforation. So both the doctors tried to display their own bonafide intention and shift the responsibilities. Be that as it may, if according to Dr. Das there were possibilities of perforation which was a possible risk of EUS than question is why he did not wait at least till the patient was conscious. It is already highlighted above that it is the specific claim of the complainant that Dr. Das had already left and could not be contacted when his wife was complaining severe pain immediately after discharge, as he had also switched off his mobile phone. It indicates that Dr. Das left hospital immediately after the procedure of EUS and ensured that he could not be contacted which itself establishes negligence on the part of the doctor who was not at all concerned about the condition of his patient after conducting the EUS.
It is true as stated by OP 2 Dr. Das that a risk is involved of having duodenal perforation after EUS but in this case negligence happened post procedure of EUS. It is a case of post-operative medical negligence and follow-up care. If the OP 2 Dr. Das or he had instructed OP 1 hospital to intimate him in case of any complaint by the patient than the timely measure could be taken and there would not have been so much delay either in diagnosing the D2 perforation and in conducting the surgery. Dr. Das himself could have taken the remedial step but the same was not done and the patient was asked to go home by OP 1 hospital with such pain which ultimately took her life. OP 1 hospital also did not take any measure in spite of complainant coming back immediately after taking out the patient that she had severe pain and than contacted again while on the way that she was vomiting and had abdomen pain.
Similarly if OP 2 Dr. Das is to be believed that he had informed Dr. Ganguly in the morning itself about possibilities of post procedure complication of perforation than the question is why there was delay to diagnose that there was D2 perforation. It is already discussed above that on 10.02.2018 patient was admitted early in the morning around 4.39 A.M. But all investigations started around 9.00 A.M. and once again several blood test, X-ray, ECG and C.T. Scan was done and report came only at 5.00 P.M., which delayed the surgery as Exploratory Laparotomy was done at 6.30 P.M.
Since Dr. Ganguly OP 4 himself had referred the patient to OP 2 Dr. Das for EUS than it is expected that when the patient was brought on 10.02.2018 early in the morning in a critical condition he would consult OP 2 Dr. Das regarding the procedure of EUS and so the statement of OP 2 Dr. Das that he had informed about possibilities of perforation in the morning to OP 4 cannot be ruled out and thus Dr. Ganguly is equally responsible for delay in treatment for the said Duodenal perforation and the surgery therein.
Ld. Advocate for Dr Das / OP 2 by filing a letter dated 04.02.2019 sent by Charnock Hospital addressed to M/s. Mullick & Co. Advocates, annexing MDCT SCAN report, argued that as per IMPRESSION noted therein it has been stated that “Duodenal perforation needs to be ruled out”. So according to Ld. Advocate there was no duodenal perforation. But on a careful scrutiny of the same, it appears nowhere it is said that there was no duodenal perforation, neither it is said that “Duodenal perforation has been ruled out”. On the contrary it suggests that there was likely duodenal perforation. Which is also reflected in the treatment sheets filed by the complainant dated 10.02.2018 at 5.45 P.M. wherein it is noted that C.T. Scan showed bile extravasations in the peritoneal cavity and likely duodenal perforation. Needs urgent surgical intervention.
Ld. Advocate for Dr. Das has relied upon the decision of Hon’ble Apex Court in case of Dr. (Mrs.) Chandra Rani Akhouri Vs Dr. M.A. Methusethu Pathi & Others, and has argued that a failure to use special or extra ordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged medical negligence. But on a careful perusal of the said case law it appears that the facts and situation in that case completely differs from the facts and situation in this case. In the said case kidney transplant surgery was successfully performed on 12.11.1995 and patient was discharged on 24.11.1995. He died on 03.02.1996 i.e. after nearly more than one and half months of the surgery. In the said case, even after the discharge, patient continuously remained under medical supervision and assistance as an outdoor patient. But in this case in hand as already discussed above that Dr. Das in spite of admitting that there could be risk of perforation did not wait even till the patient was conscious. No medical supervision or assistance was provided either by OP 1 hospital or by OP 2 doctor after the complainant informed the hospital about patient having severe abdomen pain immediately after she was conscious and discharged. If Op 1 hospital had taken care after the complainant returned within few minutes of discharge and urgent admission was done and had arranged surgery to repair the perforation, the life of the patient since deceased could have been saved. So it is apparent that there was actually denial of medical assistance.
Opposite parties have also contended that in case of medical negligence, same being of high technical nature, evidence of experts is necessary but it is settled principles of law that each case has to be examined on its own merits. In case of V. Kishan Rao Vs Nikhil Super Speciality Hospital, Hon’ble Apex Court held that “these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence”. In this case in hand, it is already discussed above that it relates to post operative medical negligence. D2 perforation had required urgent surgery but it delayed drastically compromising the patient’s life. The absence of expert’s evidence could not change the complexion of the matter leading to the death of the patient due to medical negligence as the material in the record already discussed sufficiently establishes medical negligence by OP 1 to 4.
So in view of the discussions as highlighted above, OP 1 & OP 3 hospitals and OP 2 and OP 4 doctors are liable to pay compensation to the complainant for such negligence and deficiency in medical service. However complaint is liable to be dismissed against OP 5 & 6. Since compensation is some solace to complainant being unfortunate husband who had taken his wife to these doctors and hospitals with a belief that her abdomen pain will be cured but lost her without even knowing what was the real cause of her abdomen pain till her death, we find an amount of Rs. 15,00,000/- (fifteen lakh) will be justified as compensation.
Hence
ORDERED
CC/231/2018 is allowed on contest against opposite parties 1 to 4 and dismissed on contest against opposite party no. 6 and exparte against opposite party no. 5.
Opposite parties 1 to 4 are directed to pay Rs. 15,00,000/- as compensation to the complainant within 60 days from the date of passing of this order. Out of Rs. 15,00,000/-, OP 1 & OP 3 the hospitals shall pay Rs. 2,50,000/- each and Rs. 5,00,000/- each shall be paid by the doctors OP 2 and OP 4. They are further directed to pay jointly the litigation cost of Rs. 12,000/- within the aforesaid period of two months. In default of payment, the entire sum shall carry interest @ 7% p.a. till its realisation.
