The complaint case according to the complainant is as under.
The complainant is a school going boy of 12 years and who reads in class 6 in Niranjan Path Junior High school at Gayarkata, under Dhupguri PS within Jalpaiguri. On 11/09/2021 the complainant became ill complaining of swelling of abdomen and phase and was taken to Dr. Debasish Roy (POP NO 1) at Saha medical being accompanied by his father and he was physically examined by said Dr. Debasish Roy and the complainant was advised the following investigations a) CBC b) LFT c) Urine RE/ME d) USG, WA e) Echocardiography and suggested some medicines also in his prescription with a direction to come or attend him (POP no 1) with all test report so advised by him on the prescription dated 20/09/2021 and the said doctor took his fees.(The photocopy of the same is being enclosed as annexure 1)
On 15/09/2021 the CBC, LFT, Urine Routine Exam, Urine Routine and Urine Culture tests were done through Sebayan Laboratory. Falakata Road, Dhupguri, (POP No 3) through collection of Blood and urine sample and the report of those steps were reported on 15/09/2021 for first 3 said tests and on 17/09/2021 Urine routine and Urine Culture report made by central Pathology lab Kolkata (POP No 4) of the concern patient i.e. complainant Master Dhiraj Roy referred by Dr. Debasish Roy (POP No 1) and the necessary expenditure incurred by the complainant side.(The photocopy of the same is being enclosed as annexure 2 collectively). Then the complainant being accompanied by his parents and Proforma OP No 6 and 7 went to Coochbehar town and there on 16/09/2021 the imaging report of USG of whole abdomen was reported by Dr. Sanjeev Kumar Oram (POP No 5) and the report suggested of "grossly normal abdomen. Focal excessive lipomatous tissue in subcutaneous tissue at AP gastric region" being. Thereafter on 16/09/2021 the Echocardiography with colour Doppler (screening) of the complainant (Master Dhiraj Roy) was done at the facility of Dr. P.K. Saha Hospital Private Limited being referred by Dr. Debasish Roy (POP No 1) and the necessary expenditure incurred by the complainant side. In the said report of Echocardiography with colour Doppler (screening) dated 16/09/2021,the impression or report suggested as under:- “TINY PERIMEMBRANOUS VSD|1 MM WITH OCCASIONAL LEFT TO RIGHT SHUNT WITHOUT ANY SIGNIFICANT GRADIENT AS IT CROSSES JUST BEFORE MID SYSTOLE. MILD PAH WITH PASP30 MMHG.” Good Biventricular systolic function and the necessary expenditure incurred by the complainant side. The said report Echocardiography with colour Doppler (screening) dated 16/09/2021,was given by Dr. Indrajit Mandal (OP No 2) and Dr.Sankalan Saha being attached with the facility of the OP No 1 and the necessary expenditure incurred by the complainant side. (The photocopy of the same is being enclosed as annexure 4) After getting all the reports in hand the complainant being accompanied by his parents again went to Dr. Debasish Roy (POP no 1) at Saha Medical Gayarkata Road, Dhupguri and on the basis of the all report with emphasis of the report of the Echocardiography with colour Doppler (screening) dated 16/09/2021 reported by Dr. Indrajit Mandal (OP No 2) and Dr. Sankalan Saha being attached with the facility of the OP No 1 prescribed some medicines to the complainant, his minor patient and the said report was also noted down in the prescription of Dr. Debasish Roy dated 20/09/2021. (The photocopy of the same is being enclosed as annexure 5). At the chamber of Dr. Debasish Roy (POP no 1) the said Doctor in the presence of the parents of the complainant who had explained the meaning of Echocardiography with colour Doppler (screening) dated 16/09/2021,was given by Dr.Indrajit Mandal (OP No 2) and Dr. Sankalan Saha being attached with the facility of the OP No 1 was described to the parents of the minor's patient, so far this case is concern i.e.the complainant, in vernacular that the decease of the complainant is“hriday Chidra”_and the same is “Janmagata”and the necessary doctor's fees was paid by the complainant side.In medical term the "VSD ventricular septal defect is a birth defect of the heart in which there in a hole in the wall(septum) that separates the two lower chambers ventricles) of the heart.This wall also called_ventricular septum." And the said Dr.Debasish Roy (POP No1) gave her oral opinion to take the complainant patient to a higher treatment centre or facility at the choice of the patient party And here in the nature of disease of the minor complainant patient the parents, family members and well wishers of the complainant became shocked and terrified that the case is very serious in nature and the same is with of life risk of the minor patient complainant only at the 12+ years old and they apprehended that something is going to be very bad to the said boy only at the age of 12+ only. Thereafter the parents of the complainant decided to go to Vydehi Institute of Medical Sciences and Research Centre, Bengaluru and be accompanied by the POP No 6 and 7 viz. Bikram Roy and Bablu Roy,the patient was taken to at Bengaluru urgently by Air on 8/12/2021 with another one and there treatment of the complainant was started under Doctor Joy D'souza (POP no 2) at Vydehi Institute of Medical Sciences and Research Centre,Bengaluru and the complainant/the patient was admitted under said doctor on 9/12/2021 at 9:55 AM and was discharged there from on 11/12/2021 at 8:54 PM in General Ward Bed No GEN/MPA082 in the department of paediatrics. During this hospitalization several tests, physical medical check up as well as blood tests, urine tests, and more attentively imaging test i.e.2D Echocardiography was registered of the patient, complainant under Dr. Mahitha B.Reddy (inter medical officer VIMS and RC) (POP No 8) and the report of Echocardiography and colour Doppler report dated 10/12/2021 at Vydehi institute of cardiac Science a unit of Vydehi Institute of Medical Sciences and Research Centre, Bangalore gave their report of Echocardiography and colour Doppler of the patient complainant, master Dhiraj Roy by Dr. Ribica Rao, (POP No 9) Echo-cardiographer and very clearly distinctly on 13/12/2021 the said imaging test of 2D Echo reviewed that "IVS intact i.e, the septae that separate right and the left chamber of the heart are the decease of the complainant patient Master normal” and no VSD and finally on discharge/treatment summary Dhiraj Roy was diagnosed as nephritic syndrome. (The photocopy of the 2D Echo registration dated 10/12/2021 by POP of Vydehi Institute of Cardiac Science by Pop No 9 is being enclosed as annexure 6 No 8 and Echocardiography and colour Doppler report & 7). The patient was accordingly discharged and before that the confirmation of the VSD the 2D Echocardiography and Colour Doppler imaging test were done twice and finally it was reported in the discharged certificate the same to no intervention be normal and cardiology opinion was taken and advised required and the concern complainant and patient was finally discharged on 11/12/2021 with follow up advise accordingly and the necessary treatment expenditures were paid. (The photocopy of the discharge summary is being enclosed as annexure 8).The complainant thereafter being accompanied by the parents and the POP No 6 & 7 came back to his native place i.e. at Village Garkhuta, PO- Dakshin Khattimari,Under PS Dhupguri,Dist- Jalpaiguri by Air. That for the purpose of the said treatment outside West Bengal, at Vydehi Institute of Medical Sciences and Research Centre, Bangalore, the patient/ complainant had incurred a heavy amount and the same were somehow was borrowed by the help of well-wishers of the complainant and from the father of the complainant who is a poor farmer.
The following expenditure regarding treatment in Bangalore and travel costs are stated in the following breaks up:-
a. Air Ticket Cost (Spicejet) from Bagdogra to Bengaluru (5 Persons= Rs 34874.64/- and Bengaluru to Bagdogra (5 persons) = Rs 35000/more or less. (The photocopy of the same is being enclosed as annexure 9 & 10) b. Medical expenditure= Rs 22836/- (The photo copies of the medical expenditure are being enclosed a annexure 11 collectively).
In this case the claim of the complainant is as under.
Direct the Opposite parties to pay jointly or severally a sum of Rs 93000/- rounded, which were expended by the Complainant side on medical treatment of Vydehi Institute of Medical Science and Research centre and also in cardiac unit of the same at Bengaluru along with journey cost by Air.
The opposite party Number 1, 2, 3 and pro-op number 5 file written version, evidence on affidavit, brief notes of arguments and also participate in the hearing of argument. Other opposite parties did not turned up in this case. Despite several directions, the complainant never took any step to serve notice upon other OPs.
The versions of these (opposite party Number 1, 2, 3 and pro-op number 5) opposite parties are as follows.
The OPs stated that the complainant has filed this case for his illegal gain and bargain by projecting false aspersion just to squeeze money from the OPs.
Those Ops assert that the other Doctor/Doctors and Diagnostic Centre wherein the patient had allegedly been treated are/were necessary parties and in absence of those Doctor(s) the complainant's case is not maintainable. That Dr. Tirthankar Sarkar, MD, Pathologist, Dr. Debanjan Garai, MD (Biochemistry), Dr. Tamasi Mukherjee, Consultant Microbiologist of Central Pathology Lab, Kolkata and other Doctors who had allegedly treated the patients are necessary parties to this proceedings.
That so far the case is concerned OPs assert that one patient viz. Master Dhiraj Roy, 12 years, Male, accompanied by his guardians came to Dr. P.K. Saha Hospital Pvt. Ltd. on 16/09/2021 being referred by Dr. Debashish Roy ( Proforma OP No.4) for Echocardiography when OP No. 2, Dr. Indrajit Mandal & Op No. 3 Dr. Sankalan Saha, jointly conducted an Echocardiography of the said patient on the self same date at OP-1 Nursing Home and after conducting the said Echocardiography, they issued the "REPORT OF ECHOCARDIOGRAPHY WITH COLOR DOPPLER (SCREENING)" on the basis what they have found during examination and ultimately on the basis of such findings opposite party No.2 and OP No.3 gave "IMPRESSION:
** Tiny perimembranous VSD (1 mm) with occasional left to right shunt without any significant gradient as it cross just before mid systole.
** Mild PAH with PASP-30 mmHg.
** Good biventricular systolic function."
The said test was done at OP-1 Nursing Home and during that test they extend all sorts of facilities to the patient and his guardians and also took utmost care of the patient as per standard procedure and after issuance of report by the concerned Doctors they delivered the report to the complainant without any delay. Apart from the above stated Echocardiography neither OP-1 nor the OP No. 2 and Op No.3 did anything. OPs ( 1,2,3 and pop-3) are not connected with any further treatment and procedure of the patient in question and we have been unnecessarily impleaded in this instant case.
That with regard to the further treatment and further Echocardiography report of other centre OPs assert that, they cannot comment on those reports at this juncture. However, as it appears from the supplied documents that at Vydehi Institute of Medical Sciences & Research Centre, Bengaluru Echocardiography of the complainant has been done on 10/12/2021 and that was done by one Ribica Rao, Echo Cardiographer and she gave her impression on report dated 10/12/2021, whereas the Op No.2 and Op No.3 are two highly qualified Doctors having DM (Cardiology) degree had performed the echocardiography dated 16/09/2021 of Dhiraj Roy and they gave their unanimous findings on that report. So, it is false and baseless to say that the report furnished by them is totally wrong, merely on the basis that subsequent report dated 10/12/2021 furnished by Ribica Rao, Esho Cardiographer was/is not matching the earlier.
That it is to be mentioned herein that only the Doctors with following qualifications can conduct Echocardiography test:-
(i) DM (Cardiology)
(ii) MD Medicine (Internal/Paediatrics)
(iii) MBBS with Diploma in Cardiology/ Chest Diseases
(iv) MBBS with six months training /work experience in ECHO-Cardiology Department in a teaching institution or one year training/work experience in Echo-cardiology Department in non-teaching institution. And in absence of any such qualification any report furnished by any other person cannot be relied upon in anyway.
That the statements made in para 1, 2 & 3 of the complaint petition are matter of record and the complainant is to proof the strictest proof thereof.
That with regard to the statements made in para 4 to 6, I assert that such statements are not within our knowledge nor we are concerned with such report. The complainant was brought to Op No.1 Nursing Home on 16/09/2021 for such Echocardiography procedure, when without any delay his Echocardiography was done by OP No. 2 & 3 being the qualified Doctors and on the basis of such process of echocardiography, both the Doctors reached to same conclusion.
That with regard to the statements made in para 6 to 10, I assert that such statements are matter of record.The statements made in para 11 of the complaint petition, OPs assert that they are unaware of such averments and the complainant is to prove the strictest proof thereof.OPs assert that the statements made in para 12 of the complaint petition false, baseless and imaginary. It is to be mentioned herein that in general, the 1 effects of a ventricular septal defect are related to t size of the defect and most VSDs fall in the category of small i.e. 3 mm or less and don't cause symptoms. About nine out of 10 of these types will close on their own by the time. Here in this case the VSD which was detected in the complainant was a tiny one of just 1 mm which could be closed spontaneously by elapse of time without causing any symptoms at all.With regard to the statements made in para 13 to 15 of the complaint petition I assert that I am unaware of such further treatment of the complainant nor do we have any connection with such treatment in any way. However, as it appears from the supplied documents that at Vydehi Institute of Medical Sciences & Research Centre, Bengaluru another Echocardiography of the complainant has been done on 10/12/2021 after about three months of the echocardiography procedure done by Op No.2 and Op No.3, wherein one Ribica Rao, Echocardiography performed the said echocardiography procedure of the complainant and gave her impression on report dated 10/12/2021. That Op No.2 and Op No.3 are two highly qualified Doctors having DM (Cardiology) degree had performed the echocardiography dated 16/09/2021 of the complainant and it is false and baseless to say that the report furnished by them is totally wrong, merely on the basis that subsequent report dated 10/12/2021 furnished by Ribica Rao, EchoCardiographer gave her impression is not matching the earlier and when the validity and sanctity of that report is to be ascertain first. So, on the basis of such further reports this OP No.2 and Op No.3 cannot be fastened with liability.OPs assert that the statements made in para 16 to 18 are redundant and baseless. Such statements have no bearing with us. Neither we nor the O.P.No.2 or Op No. 3 had suggested the complainant to go for any further treatment whatsoever. The O.P.No.2 and Op No. 3 had given their echocardiography findings only and they have handed it over to the complainant. This O.Ps cannot be fastened for such expenses of the complainant in any way. I assert that there was no wrong in the echocardiography Impressions. OPs submit that there was no negligence whatsoever on their part in any way. The entire allegation was brought against us having no basis at all. 1 further assert that there was no fault on our part nor there was any medical negligence nor deficiency in service as alleged in performing the said echocardiography of Dhiraj Roy nor there was any lack of care and diligence or breach of duty as alleged by the complainant. It is false to say that the patient or the complainant had to bear a huge expense. OPs charged the actual professional fees from the complainant and OPs never suggested the complainant go all the way to Bengaluru. The complainant had gone there completely out of his own volition, so OPs cannot be fastened for such expenses of the complainant in any way. POP-5 only did the USG of the patient. The complainant has no strong allegation against him
At the time of hearing of argument the learned lawyer for opposite party Number 1, 2, 3 and pro-op number 5 files the following documents.
- Photocopy of 05 (Five) pages from Chapter 13 of "Clinical Diagnosis of Congenital Heart Disease" which stated as under
“Incidence of VSD is about 12% among all congenital heart diseases in adults. Lower prevalence of VSD in adults is due to spontaneous closure of many VSDs during infancy and early childhood. Therefore the incidence”
Small VSD (Roger's Disease)
“These patients are often referred to a cardiologist for a murmur (systolic) detected on routine examination or at the time of an incidental illness. The murmur most often is o detected when the patient is between 2 weeks and 6 weeks of age. A murmur that is heard in the first 18 hours of life is seldom due to VSD, but if the murmur persists after 4 months of life it is commonly thought to be a VSD murmur. Patient's growth and development is normal. Peripheral pulses and blood pressure are within normal limit.”
Spontaneous Closure of VSD
“The precise mechanism of closure is not well understood. Incidence of spontaneous closure varies. However, 25% of all perimembranous and trabecular VSD close spontaneously by 1 year. Majority close by late infancy and early childhood. Ultimately 70% of small perimembranous and muscular VSDs close in due course, but Swiss-cheese muscular VSD do not close. When followed from birth the restrictive VSD closure is about 50% or more before 2 years of age. About 5-10% of large VSDs also close by the same period.”
2) Photocopy of 03 (Three) pages from page 1378 of "Hurst's The Heart". This stated as under
“Small unrepaired perimembranous or muscular VSDs often spon- taneously decrease in size or close with age? However, small VSDs initially encountered in adulthood (in patients older than 20 years of age) are unlikely to close spontaneously”
3) Photocopy of Feigenbaum's Ecocergiography".(03 pages). This stated as under
“The accuracy of echocardiography for detecting a ventricular septal defect depends on its size and location. The ventricular septum is curved and therefore does not lie in a single plane. Multiple views are required to examine the entire septal region.”
“In general, false-negative findings are more common than false positive results”
4) Photocopy of 05 (Res five) Pages from "NADAS' Pediatric Cardiology. This stated as under
“Spontaneous decrease in defect size and even closure has been long recognized. The reported frequencies of such events have varied considerably, related to age, defect, location, follow-up, duration, and especially methods of detection, particularly echocardiography.”
5) Photo copy of of (bix) Pages from "Perloff's Clinica Recognition of congenital Heart Diseases. This stated as under
“septal defects, especially perimembranous and trabecular muscular defects, to decrease in size finds an ultimate ex- pression in complete closure 24,31-33 that has been called the therapeutics of nature-the invisible sutures of spon- taneous closure. 34 The incidence rate of spontaneous clo- sure varies considerably depending on the population under study, the method of diagnostic investigation, the type of defect, and whether or not the defect is solitary35 and has been estimated at 50% to 75% for re- strictive perimembranous and trabecular muscular de- fects observed from birth. 29,36,37 The incidence rate for trabecular muscular defects 35 is reportedly equal to or somewhat higher than that for perimembranous de- fects. Moderately restrictive and nonrestrictive defects also close spontaneously, but the probability is compara- tively low, with an incidence rate estimated at 5% to 10% 23-25, 35, 38, 39 Most defects that are destined to close do so within the first year of life, 35 with approximately 60% closing before 3 years of age and 90% closing before age 8 years. s. 36 36,37 However, spontaneous closure also occurs in older children and young adults and has been docu- mented at age 23 years, 26 between 26 years and 33 years of age, 41 and at age 46 years.”
In Supreme court of India, Civil Appeal No- 3975 of 2018, date of judgement 19/10/2023 the honourable apex court stated as under.
“To hold a medical practitioner liable for negligence, a higher threshold limit must be met. This is to ensure that these doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible persecution or harassment that they may be subjected to in high-risk medical situations. Therefore, to safeguard these medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by the complainant. The complainant should be able to prove a breach of duty and the subsequent injury being attributable to the aforesaid breach as well, in order to hold a doctor liable for medical negligence. On the other hand, doctors need to establish that they had followed reasonable standards of medical practice”.
The Hon’ble Supreme Court in the case of Chanda Rani Akhouri vs M.S.Methusethupathi Mithupathi[5] held as below:
“In the case of medical negligence, this Court in Jacob Mathew v. State of Punjab and Another1 dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution but there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if (a) either a person (doctor) did not possess the requisite skills which he professed to have possessed; or (b) he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the 1 (2005) 6 SCC 1 20 highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional.”
In NCDRC case number 1405 of 2019, date of judgement 20 March the honourable apex court stated as under.
“The medical professionals are entitled to get protection. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. The malicious proceedings deserve to be discarded against the doctors”
It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. In catena of decisions, it has been held that it is for the Complainant to prove the negligence or deficiency in service by adducing cogent evidence. Mere allegation of negligence will be of no help to the Complainant.
In another judgment in Dr. Harish Kumar Khurana v. Joginder Singh and Others3, NCDRC held that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances. However, in an unfortunate case death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at
a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence.
In the Complaint case no – CC-06/2016, Chandra Das (Saha) versus Dr. Bimal Saha, decided on 04/09/2023 the honourable WBSCDRC, Kolkata observe that the report of Expert Committee is decisive in case of medical negligence.
We have gone through the records and other related documents of the case. To conclude, the undisputed facts in the instant case that the alleged doctors (OP-2&3) were qualified with experience in their field and possessed requisite knowledge and skill in their subject. Patient was treated and underwent different procedures at multiple hospitals. Subsequently, He was attended to by multiple medical experts. This is a classic case of human fallibility where doctors tried to do the best for patient as per their expertise according to emerging situations, However, lastly the de- sired results be achieved. Looking at line of treatment in present matter, it cannot be said with certainty that it was a case of medical negligence.
Based on the discussion above and respectfully following the precedent of Hon’ble Apex Court, we do not find any merit. No medical negligence is attributed against the alleged doctors and the hospital.
The Complaint case number CC/08/2020 is dismissed. There shall be no Order as to costs.
Let a copy of this judgment be given to the parties free of cost.
