Tripura

West Tripura

CC/86/2015

Smti Santi Chowdhury (Kapali). - Complainant(s)

Versus

The Chairman, Society for Tripura Medical College & Dr. B.R.Ambedkar Memorial Teaching Hospital & 2 - Opp.Party(s)

Mr.K.Nandi, Mr.A.L.Saha, Mr.A.Saha, Miss. S.Datta.

21 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
WEST TRIPURA :  AGARTALA

CASE   NO:   CC- 86 of 2015 

Smt. Santi Chowdhury,
W/O- Shri Radha Charan Kapil, 
Village- Lankamura(Kapali Para),
P.O.- Lankamura, P.S. West, Agartala, 
District- West Tripura, Pin- 799009.            ..…...Complainant.

             VERSUS

1. The Society for Tripura Medical College 
& Dr. B.R. Ambedkar Memorial Teaching Hospital,
Hapania, Agartala, West Tripura,
Pin-7990014, 
A society, registered under societies 
Registration Act, 1860, 
represented by its Chairman & others.         

2. Dr. Kabita Barua, HOD-ENT,
Tripura Medical College & Dr. B.R. Ambedkar
Memorial Teaching Hospital, 
Hapania, Agartala, West Tripura, Pin-799014.

3. The Superintendent,
Tripura Medical College & Dr. B.R. Ambedkar 
Memorial Teaching Hospital, Hapania, 
Agartala, West Tripura,
Pin- 799014.                        ..............Opposite parties.

      __________PRESENT__________

 SRI A. PAL,
PRESIDENT,
  DISTRICT CONSUMER  
DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. Dr. G. DEBNATH
MEMBER,
  DISTRICT CONSUMER 
DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SRI U. DAS
MEMBER,
  DISTRICT CONSUMER 
DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

 

C O U N S E L

    For the Complainant        : Sri Amrit Lal Saha,
                          Sri Kajal Nandi,
                          Miss Sumi Datta,
                          Sri Abheek Saha
                          Advocates.

For the O.P.s                : Sri Paramartha Datta, 
                      Advocate.

 

 

        JUDGMENT  DELIVERED  ON:  21.11.2016

J U D G M E N T

        This case arises on the petition filed by Santi Chowdhury U/S 12 of the C.P. Act. Petitioner's case in short is that she went to B.R. Ambedkar Hospital on 09.09.14 and undergone treatment there. Dr. Kabita Baruah O.P. No.2 advised her for endoscopy. Endoscopy was  done on her on 10.09.14 by Dr. Kabita Baruah. But after endoscopy her condition was very serious. She developed intense pain in the right lower chest and right upper abdomen. There was breathing problem. So, O.P. referred her to ILS hospital to a Cardio thoracic vascular surgeon on 12.09.14. Her condition was very serious. Again endoscopy was done there on 13.09.14 and it was found that there was a abnormal whole in the Esophagus which was caused by earlier endoscopy done in the TMC hospital. Such injury was caused due to negligence. X-Ray, CT scan was also done and complainant was referred to Apollo Gleneagles hospital, Kolkata. She was admitted there for a long time, slowly and gradually recovered. But still she has been suffering. Due to negligence done in the TMC hospital she suffered a lot, both mentally, physically and economically she was ruined. Therefore, she claimed compensation of Rs.9,21,078/-.

        O.P. Society for Tripura Medical College, Kabita Baruah filed W.S denying the claim. It is stated that esophagosocpy was done under general Anesthesia. She was shifted to E.N.T. ward on 3.30 P.M. The patient complained of pain after 4 hours of the endoscopy. Requisition was sent for the opinion of the medicine  department. X-Ray of chest was done. Dr. Mihir Das Consultant  Surgeon was also consulted. Then she was referred to ILS hospital on 12.09.14. Patient had been suffering from dysphagia, and could not take solid food for one year. Esophagus was not normal. It was thinner. She was Chronic Rheumatoid Arthritis  patient. Injury in the esophagus was not done during endoscopy. All medical facility provided to her. There was no negligence on the part of Dr. Kabita Baruah or TMC. O.P. therefore, O.P. prayed for dismissal of the claim.

        On the basis of contention raised by both the parties following points cropped up for determination;
        (I) Whether there was any medical negligence which caused hole in the esophagus of the complainant?
        (II) Whether petitioner is entitled to get compensation as claimed?

        Petitioner produced the photocopy of TMC, IlS Hospital, Apollo Gleneagles Hospital, bill receipt of ILS, TMC and Apollo Gleneagles, air tickets, RTI  application, and lawyers notice.
 
        Petitioner also produced the statement on affidavit of herself, Santi Chowdhury P.W.1. 
        On the application of petitioner one expert, Dr. Amitabha Roy working in the ILS Hospital was called and examined. 

        O.P. on the other hand also produced statement on affidavit of Dr. Arindam Dutta, one expert Gastroenterologist Dr. Prasanna K.S. and also O.P. Dr. Kabita Baruah. 
        O.P. also produced some documents Entrance bed ticket,  pre-anaesthetic checkup, admission slip, consent form.

        On the basis of all the evidence on record we shall now determine the above points.

    Findings and decision;
    
        We have gone through the prescription issued by the TMC & Hospital. From the prescription dated 09.09.14 it appears that the complainant Santi Chowdhury went to the TMC Hospital with the complaint of difficulty in swallowing for one year.  There is difficulty in swallowing solid food even semisolid. Dr. Kabita Baruah planed for Oesophagoscopy and accordingly it was done. In the O.T. note it was written that oesophagoscope could not be introduced due to spasm of muscle. Intermediate size scope introduced. It was difficult to negotiate due to severe muscle spasm. It is also observed that mucosa was found ulcerated. There was patchy hemorrhagic area. From this O.T. Note it is clear that complication arose during the oesophagoscopy. But in the prescriptions report Dr. Rabi Sankar Roy reported that post operative recovery was smooth and she was shifted to post operative ENT ward. Thereafter, Priyanka Saha one Internee sought the advise of Dr. Kabita Baruah on 10.09.14. On 11.09.14 one V.Singh wrote to the Head of the department of Medicine as patient was suffering from breathing problem. Dr.Kabita Baruah on 12.09.14 wrote letter to Consultant, Probationer M.Das Department of Surgery for examining her and give valuable opinion. Then she was referred to ILS Hospital on 12.09.14 by Dr. Pratap Sanyal. Dr. Kabita Baruah in her statement on affidavit denied about medical negligence. According to her all types of treatment was provided to the complainant.  Surgeon was called. In the cross examination she stated that due to rapture in the oesophagus spepticemia may develop, mediastinitis and many  other complication may arise. According to her esophagoscopy can be performed by ENT specialist and gastroenterologist. On the careful analysis of her evidence it is established that oesophagoscopy  was done by her. Complications arose and then petitioner was sent to ILS hospital. In the cross examination she stated that dilation was not done by her. 
    
        Dr. Arindam Datta did not treat the patient. According to him 2 surgeons opined that it was a case of mediastinitis and then referred to ILS hospital. 
        Dr. Prasanna K.S, specialist gynecologist gastroenterologist(DM) stated that there is possibility of  perforation during endoscopy. He can not say the exact age of perforation but it was not a new one and recent injury. Causing perforation during endoscopy is not a medical negligence. All pre and post step were properly taken. Risk was disclosed to patient. Risk is there from 0.8 to 3%. Kabita Baruah herself did not tell that risk factor was there & it was disclosed to the patient. On 13.09.14 Dr. Amitabha Roy attended Santi Chowdhury complainant and he had done endoscopy of upper esophagus stomach and duodenum. While doing endoscopy he noticed perforation in the lower esophagus. Cause of perforation he could not say. He stated that perforation might be caused during previous endoscopy. Petitioner in her evidence also stated that  perforation was caused during endoscopy  in the TMC hospital. 
        
        Learned advocate of the O.P. argues that 4 months back petitioner had undergone endoscopy and such injury might be caused during that time. We have gone the discharge summary and also the prescription where the history of the disease of patient is written. From screening and analysis of the all this on record nothing comes out to support the contention of the learned advocate that the petitioner had a old injury on the esophagus  while she came for the treatment. From the OT note and the evidence of the specialist it is transpired that such injury in the esophagus was caused during the  oesophagoscopy done in the TMC hospital under guidance of the Kabita Baruah. Dr. Kabita Baruah may not be responsible for that. She had to take help from the other helpers who introduced the oesophagoscopy. In the O.T. Note it was written that adult size endoscopy could not be introduced due to spasm of the muscle. Thereafter intermediate size scope introduced. There was severe muscle spasm and it was difficult to negotiate. The  bleeding was also noticed. So, it is clear that injury was caused during the esophagoscopy done in the TMC hospital. Such risk is there and Dr. Prasanna KS, gastroenterologist specialist clearly stated that such risk factor is there from 0.8 to 3%. Dr. should have disclosed it to the patient. When there was difficulty in the introducing the esophagoscope they could abstain to do it by force. But the helping hands of Doctor Kabita Baruah did not take care of it. No guarantee or promise was given to patient at the time of procedure of treatment. But the hospital authority did not disclose the risk factor and it caused some pain and sufferings to the petitioner. From the scrutiny of the records it is found that after this injury in the esophagus no proper step was taken in the TMC hospital for healing injury. Surgeon was called and after 2 days stay in the hospital she was referred to ILS hospital. When there was possibility of injury in the esophagus while doing the endoscopy then the hospital authority & concerned doctor must maintain such arrangement for treatment of injury in the esophagus. If it was not available then risk endoscopy should not be done. But it was done in the TMC hospital and proper care was not taken after the endoscopy. Even risk factor not disclosed by Dr. Baruah.

        Learned advocate for the O.P. referred the decision of our State csommission in the judgment delivered on 19.03.14 by our State commission vide that Supreme Court reported in AIR 2010  1050. in that case it was held that medical practitioner would be liable only where his conduct fell below that of the standards of a reasonable competent practitioner in his field. It is also been held that negligence cannot be attributed to a doctor so long as he performs his duty with reasonable and skill and competence. Here in this case nothing comes out to support that Dr. Kabita Baruah conducted the endoscopy without due care skill and competence. Her medical negligence not found clearly. But she did not disclose risk factors to patients & relatives and did not abstain from introducing the scope when there was muscle spasm. This is carelessness to some extent. But in this case O.P. No.1 and 3, the hospital authority did not arrange pre and post operative care. When there is possibility of post operative complications then the authority would have taken care of it. Risk factor should have disclosed to the patient. The properly trained helping hand should be given to the surgeon for doing the endoscopy. But the hospital authority failed to provide all these when the complications which had the chance to come was not properly treated as no arrangement was there. Therefore, we consider that the hospital authority & concerned Doctor should pay, the treatment cost at least 50% and also refund the treatment cost in the TMC hospital as proper treatment was not given in the hospital. Finally she was treated in the Apollo Gleneagles Hospital and she was recovered. But still she had been suffering. No clear picture given before us to support the treatment cost. Some pathological report, prescriptions are produced unnecessarily. From one report it is found that Rs.47,021/- was paid to ILS hospital. About 6 lacs was paid to Apollo Hospital. In total, about 6.5 lakhs was spent in Apollo Hospital. TMC should share this cost. Petitioner had to  suffer a lot. We consider that Rs.50 % of the expenditure should be borne by the TMC hospital for there medical negligence & deficiency of service & refused the fees taken. 

        We therefore direct the O.P.No.1 and 2, TMC hospital authority to pay the amount of Rs.3,50,000/- to the petitioner as compensation for their deficiency of service & cost of litigation. No other extra cost is awarded. O.P. No. 1 and 3 are directed to pay the amount as they are vicariously liable for act of O.P. No.2. Payment is to be made within 2(two) months if not paid it will carry interest @ 9%. P.A.      
                                 

                          Announced.

 

SRI A. PAL
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 

 

SMT. DR. G. DEBNATH,
MEMBER,
 DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
WEST TRIPURA, AGARTALA    SRI U. DAS
MEMBER,
  DISTRICT CONSUMER 
DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.