Date of filing: 09.06.2010 Date of disposal: 22.01.2019
Complainant: Md. Nasim, S/o. Late Mahammad Hanif, S/o. Late Jibannesha Begam, Village: Badulia, Post Office: Sagrai, Dist: Burdwan.
- V E R S U S -
Opposite Party: 1. The Life Line Nursing Home & Polyclinic, 294 G. T. Road, Bhanga Kuthi, PO: Burdwan, District: Burdwan, represented by its partner Molla Kasem Ali.
` 2. Dr. Sandip Kumar Ghosh, The Life Line Nursing Home & Polyclinic, 294 G. T. Road, Bhanga Kuthi, PO: Burdwan, District: Burdwan.
3. Dr. Arunima Chowdhury, The Life Line Nursing Home & Polyclinic, 294 G. T. Road, Bhanga Kuthi, PO: Burdwan, District: Burdwan
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Subrata Ghosh & Debdas Rudra.
Appeared for the Opposite Party Nos. 1&2: Ld. Advocate, Deb Krishna Sinha.
Appeared for the Opposite Party No. 3: Ld. Advocate, Soma Mukhopadhyay.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C. P. Act, 1986 alleging medical negligence against the Ops that the Ops have adopted unfair trade practice and also deficient in rendering proper service to the patient.
The case of the complainant in brief is that the mother of the complainant felt abdominal pain in or around May, 2008 accompanied with hyperacidity, heartburn, constipation and weakness. The complainant took his mother to Dr. G. Mazumdar on 13.05.2008 and after examination doctor prescribe certain test i.e. Blood and faeces and the patient undergone all the tests on 25.05.2008, then consulted Dr. Subed Ghosh.
The complainant alleges that OP No. 1 & 2 has never explained about the further complication and procedure of surgery before operation to the patient party. That, the consent for operation was not properly obtained by Dr. Subed Ghosh and Dr. Subed Ghosh prescribed certain tests like PCV, FBS, Urea, LFT, UR, USG of whole abdomen, X-ray Chest PA View etc. and medicines. Though the patient undergone all the tests prescribed by Dr. Subed Ghosh but the problem of the patient continued.
Thereafter the complainant took his mother to OP-2 on 03.06.2008 for consultation. The OP-2 after consultation and examining the test report done as per advice of Dr. Subed Ghosh prescribed USG of Whole Abdomen. USG of Whole Abdomen was done at Sadhan Diagnostic Centre on 05.06.2008 and the report of USG suggested that the patient was suffering from Chronic Cholecystitis with Cholelithiasis. After examining the USG report OP-2 opined that the patient was suffering from Gallbladder Stone and operation is necessary to remove the problem. As per advice of OP-2 the patient was admitted at the Nursing of OP-1 on 10.06.2008 for Cholecystectomy operation under the OP-2 and ultimately without taking any consent from the complainant open operation was done on 10.06.2008 without giving any information to the complainant and his family members.
Complainant alleges that the OP-3 without any check up administered general anesthesia and at about 7 p.m. the OP-2 came out from the O.T. and informed the family members of the patient including the complainant that the operation is successful and uneventful but due to anesthetic problem the patient had not yet regain sense and he also informed that the patient would be required to be shifted to I.C.U. Thereafter the complainant and his relatives after entering into the O.T. saw that patient was lying unconscious and five teeth of the patient were lying broken and the mouth of the patient was full of blood. The condition of the patient became very critical inside the O.T. due to negligence on the part of the Ops and ultimately the patient was shifted to I.C.U. On the next date i.e. on 11.06.2008 the condition of the patient did not improve but the OP had given false assurance and ultimately when the limit of patience crossed, the patient party put pressure upon the OP to know the actual condition of the patient, then the OP at about 8.20 p.m. declared that the mother/patient of the complainant is dead.
Complainant alleges that his mother died due to negligence and deficiency in duty of the Ops. After knowing the information of death of the mother of the complainant, the relatives of the complainant became excited and they started to protest against the negligence of the Ops and hot altercation between the relatives of the patient and the nursing home authority continued up to 12.30 a.m. on 12.06.2008. Thereafter the nursing home authority deployed their musclemen who failed to remove the patient party. Thereafter, the Nursing Home authority called the police and ultimately by the help of the police the nursing home authority compelled the complainant and other relatives of the patient party to take back the dead body from the nursing home and compelled to bring the dead body at their residence and buried the same.
Then, the nursing home authority on false and frivolous allegation filed a criminal case bearing No. Burdwan P.S. Case No. 297/2008 at 12.06.2008 u/S. 147/148/323/427/379 of IPC and being influenced by the nursing home authority the police arrested the elder brother of the complainant on 25.06.2008. Later on ld. Chief Judicial Magistrate was pleased to release him on bail on 26.06.2008.
Therefore, the brother of the complainant lodged a criminal complaint against the Ops to know the actual reason of death of the mother of the complainant and the same has been registered as Burdwan P.S. Case No. 363/2008 dated 15.07.2008 u/S. 341/304A/420/201/34 of IPC and in accordance with the direction of the Court the police exhumed the body and post-mortem of the dead body of the mother of the complainant was done under video recording on 17.07.2008.
The complainant has also lodged complaint before Chief Medical Officer, Burdwan as well as West Bengal Medical Council alleging negligence and violation of code of ethics on the part of the Ops.
Complainant alleges that the mother of the complainant died due to negligence on the part of the Ops. That before operation the patient’s condition was not properly evaluated and the Doctors-OP-2&3 have not explained about the future complication and procedure of surgery before operation to the patient party. The consent for operation was not properly obtained. The OP-2&3 have not done certain things in connection with the treatment of the mother of the complainant which were required to be done and ultimately the mother of the complainant died due to negligence and deficiency in service on the part of the Ops. The OP-1 is running the nursing home violating West Bengal Clinical Establishment Rule, 2003. The nursing home authority attracting the patient party by giving false advertisement about the facility of the nursing home which amounts to unfair trade practice on the part of the OP-1. In the advertisement the nursing home authority mentioned certain facilities which are not existing and approved by the competent authority.
It is the specific case of complainant that due to negligence and deficiency in service and unfair trade practice the complainant lost his mother and the complainant and his brothers and sisters are suffering from great mental pain, agony and harassment so the complainant prayed for directing the Ops to pay Rs. 20,000=00 towards cost of the treatment of his mother, Rs. 7, 00,000=00 as compensation towards mental pain, agony and harassment and Rs. 30,000=00 as litigation cost.
OP-1 contested the case by filing written version denying all the material allegations made by the complainant in the petition of complaint.
The case of the OP-1 is that it is a medical institution to render service upon the patient when the patient is admitted as an indoor patient. The OP-1 is a well-equipped institution having all types of medical facilities through R.M.O., trained staff nurse and other trained/expert staff for 24 hours. The OP-1 further submits that it has necessary permission granted by W.B. Government for running the nursing home and is well equipped rendering service with utmost comfort and pleasure and for this reason many renowned specialist doctors refer their patients to be admitted in this nursing home and treatment is done as per advice of those doctors. This OP strongly denies the allegation of the complainant of violation of W.B. Clinical Establishment Rule, 2003 and submits that this OP-1 possess all medical facilities to run a nursing home.
The further case of the OP-1 is that the mother of the complainant was admitted in the nursing home on 10.06.2008 on the advice of OP-2 and on the instruction of OP-2 and advice, the OP-1 arranged for operation and the OP-2 called the OP-3 for anesthesia and in presence of the doctor and nursing home staff, operation was held and the patient was shifted to ICU from operation theatre for 24 hours observation by RMO and trained nurse. The patient was badly in need of ventilation and the same was provided to the patient for immediate recovery as she was aged and suffering from various ailments, but due to ill fate she left this earth on 11.06.2008 at about 8.00 to 8.30 p.m. This OP-1 has limited scope before or after surgical operation of a patient as the OP-1 uses to give nursing to the patient through its trained staff just to comply the advice or direction of the doctor under whom the patient is admitted. Even the OP-1 tried its best to survive the present patient by calling other expert doctors for her treatment but all the efforts of OP-1 along with other Ops were in vain. So there was no deficiency or laches on the part of this OP in rendering service upon the patient, but after hearing death news of the patient, an unwarranted incident was caused by the patient party by ransacking the entire institution which caused a loss of to the tune of Rs. 5 lakhs without any rhyme or reason. So this OP prays for counter claim before this Ld. Forum for an award of the same against the complainant with a sum of Rs. 2, 00,000=00 for ransacking and destroying the valuable articles of the institution, as well as, causing mental pain and agony for saving the life of the staff employed in the nursing home. Accordingly this OP claims a sum of Rs. 4, 50,000=00 against the complainant.
The further case of the OP-1 is that the complainant paid not a single farthing for providing necessary services by the OP-1 which was more or less Rs. 16,000=00. The patient was admitted by the desire of the OP-2, who advised the patient party to admit the patient in this nursing home, as the present nursing home is well-equipped modern nursing home in the Burdwan Town. This OP also submits that there is neither any deficiency nor any negligent service on the part of this OP. The complainant has filed this complaint after a long lapse of three years from the date of occurrence, only to squeeze money by an illegal way from this OP and other Ops. As such the complaint is liable to be dismissed with compensatory costs in favour of this OP.
The OP-2 has filed separate written version to contest the case filed by the complainant denying all the material allegations made by the complainant in the petition of complaint.
The case of the OP-2 is that reason for filing the application is not far to seek, facts remains that the death of the mother of the complainant occurred on 11.06.2008 and the case was filed after a long lapse of period of about two years. Prior to filing the case a Police Case was started against the brothers of the complainant and others and thereafter to save their skin a complaint was filed in the Court of the Ld. Chief Judicial Magistrate, Burdwan on 03.07.2008 and Burdwan P.S. Case No. 363 of 2008 dated 15.07.2008 was started.
The complainant’s mother was 68 years of age, suffering from different ailments and the complainant and his relations were fully aware about the physical condition of the patient. They were fully apprised of the whole situation and knowing fully aware the patient was admitted as per the desire of brother of the complainant. He was also made aware about the risk of the patient. The allegations that no consent was taken or that the patient-party was not apprised of, the actual situation are totally false and blatant lies.
The further case of the OP-2 is that there was no lack of sincerity and in case of elderly person beyond 60 years risk always remains and the only thing which the Physician or Anesthetist can do is to render their services to the best of their ability and sincerity keeping in view the different aspect of the old patient as per guidance of the authorities. Post-operative complications especially in case of patients beyond 60 years may frequently occur and in this instant case also the complications which subsequently developed were beyond control and capacity of the Surgeon and Anesthetist. With all seriousness this OP submits that death of the patient did not occur due to the laches on the part of the Anesthetist or Surgeon. Every possible care was taken on the part of the Nursing Home authority, the Surgeon, who operated the patient, and the Anesthetist and to tackle the situation the patient were shifted to I.C.U. and also provided other necessary medical devices. But inspite of best efforts on the part of the Surgeon and all others the patient died.
The bed head tickets of the patient, if supplied to them, would reveal the measures which were taken to save the patient’s life and would also reveal the sincerity and seriousness with which the problem was sought to be tackled. The only duty of the Surgeon and Anesthetist is to offer necessary medical treatment to ameliorate the sufferings as also to save the life of the patient as far as possible within the human capacity of the Surgeon or Anesthesiologist. Some copies had been supplied to this OP, but curiously enough, some portions were kept concealed with their sleeves. Detailed notes about what this OP did have all been distinctly and clearly mentioned. The said portion of notes of bed head tickets have not been supplied to this OP.
This OP further submits that the patient was admitted in the Nursing Home on 10.06.2008 at about 10 a.m. for cholecystectomy. The patient was examined at his chamber and was advised routine pre-operative investigation and she was within normal limits. One unit of blood was kept ready for emergency situation. The operation was performed at 4.45 p.m. Initially there was difficulty during intubation and Dr. Chowdhury took assistance of an E.N.T. specialist Dr. Monoj Mukherjee and all care were taken by this OP and Dr. Chowdhury. After operation the patient developed respiratory distress and recovery from G.A. was delayed. The patient was immediately transferred to I.C.C.U. with venially support and was under the care of physician including Neurologist. This OP was present althrough at I.C.C.U. beside the patient up to midnight and again visited several times on the next date and there was some improvement of the patient but, unfortunately, she expired on 11.06.2008 at 8.20 p.m. inspite of best efforts from the side of the OP-2&3. There was absolutely no fault or lack of sincerity or lack of any care on the part of operating surgeon. The death also was not caused due to any fault in regard to the surgical operation or anesthesiologist. It occurred for reasons which were beyond the control of the Surgeon and Anesthesiologist.
The allegation has been made that the teeth were broken. The said allegation is totally false and that shall be revealed from the bed head ticket. It should be mentioned in this connection that one Dr. Monoj Mukherjee, a renowned surgeon (E.N.T.) was also physically present and was fully aware about the situation which occurred. Report submitted by him to the Chairperson of the Enquiry Committee, Deputy C.M.O.H., Burdwan shall speak for itself. He had occasion to submit this report when an enquiry was hold over that matter and that report was submitted on 21.08.2009. It may be mentioned that one Amit Kumar Banerjee, Associate Professor, Department of Anesthesiology, also submitted a report. All these things simply cited for the purpose of showing what amount of care the Ops took while dealing with the case of the patient. The breaking of teeth, as has been allegedly made, is not only false, but is motivated and the same has no foundation or basis at all. This OP prayed for rejecting the complaint with exemplary cost.
OP No. 3 also contested the case by filing written version separately denying all the allegations made by the complainant in the petition of complaint which is self-same with the written version filed by the OP No. 2.
Points to be determined:-
- Whether there is any deficiency in service and unfair trade practice on the part of the Ops in rendering proper medical treatment to the patient?
- Whether the complainant is entitled to get reliefs as sought for in his petition of complaint?
-: Decision with reasons:-
Both the above points are taken up together for discussion for the sake of convenience.
Complainant, Md. Nasim, one of the sons of the deceased Jibannessa Begum filed this case while her other son Md. Safi was all along with the mother during the treatment leading to the operation of the patient in the nursing home of OP-1. In the petition of complaint Md. Nasim stated clearly that his mother was suffering from abdominal pain in or around May, 2008 along with other complications and was under treatment of Dr. G. Mazumdar. She undergone some tests and thereafter consulted Dr. Subed. Complainant alleged that OP-2 Dr. Ghosh did not explain about the future complications of his mother and he did not explain the procedure of surgery and did not take properly consent for performing the operation. At the same time he stated that Dr. Ghosh prescribed certain tests like PCV, FBS, Urea, LFT, UR, USG whole abdomen, X-ray, chest PA View etc. Dr. Subed is not made any party in this case. However, complainant took his mother to the OP-2 Dr Sandip Kumar Ghosh who examining the report of the above-mentioned tests and advise of Dr. Subed again prescribed USG of whole abdomen on 05.06.2008 and after receiving the report suggested that the mother of the complainant is suffering from Chornic Cholecystitis with Cholelithiasis and also opined that she has been suffering from Gallbladder Stone and operation is necessary to remove the problem. As per advice of OP-2 he admitted the patient to the nursing home. Therefore, the allegation of the complainant that the Doctor did not go through proper clinical and pathological examination and did not explain the complications and sufferings of his mother before advising for operation cannot stand as per version of the complainant in this complaint petition. However, complainant is alleging that legal requirement of medical practice and procedure formula was not maintained by OP-2 and consent was not properly obtained. That, the consent as prescribed by the Ops before operation is not valid as per allegations of the complainant. He cited paragraphs from Indian Penal Code and also the judgement of Hon’ble Apex Court 2008 AIR SC 1385 and 2008 (2) CPJ 31 the allegation which raised before Indian Medical Council and the Council inquired into the matter and prepared a report. From the report of West Bengal Medical Council dated 21.08.2017 both the Doctors i.e. Dr. Ghosh and the Anesthetist OP-3 and the complainant was examined. Complainant, be it mentioned did not complaint before the Council that proper consent was not taken by the OP-2 or he did not allege before the Council that he was not explained about the complications may arise following the operation or there is any problem etc. on the other hand, complainant stated that before operation various investigations were done there was no complication in the medical reports and operation took place on 10.06.2008 by Dr. Sandip Ghosh who engaged OP-2 Dr. Arunima Chowdhury as Anaesthetist and problem arose after operation and the complainant was told that anaesthesia problem arose and patient remained is unconscious. After three hours of the operation it was informed by Dr. Ghosh and complainant found his mother lying senseless with her five teeth broken and there after she was shifted to ICU. Complainant alleged before the Council that next date on 11.06.2008 the authority of OP-1 gave false assurance about condition of his mother but he realized that his mother has expired in O.T. But they declared her death at 8:20 p.m. on 11.06.2008. Therefore he complained against Dr. Ghosh and Op-2 & 3 for negligence in treatment. He also made some other allegations against the nursing home for not providing papers under Section 1.3.2 of MCI and Nursing Home was disobeying Clinical Establishment Rules. When he was called for personally before the Council the complainant did not make any other complaint. So before Council the complainant has no allegation regarding non-disclosure of the problem of the operation or complication that may arise after operation or the allegation that prior consent was not taken by those two doctors.
Before the Council both Doctor Ghosh and Doctor Chowdhury appeared. Dr. Ghosh stated that there was no complication during surgery but the patient could not revive in spite of the best efforts on the part of the anaesthetist as well as other two doctors. Dr. Chowdhury was also examined by the Council and he stated before the Council that the patient was fit for operation as per anaesthetic check up conducted by her and parameters were within normal limit. However, the BP of the patient went on rising after intubation. She further added she sought help of one ENT specialist to intubate the patient since she had encountered problem while intubation. It is a matter of regret that the patient developed bronchospasm and the chest was full of creps. Necessary medication was done and opinion of at least three medical practitioners was obtained for proper management of the case.
The Council unanimously decided that the charges against both the practitioners Dr. Ghosh and Dr. Chowdhury had been substantiated. The Council observed that “the surgeon was not at fault to select the anaesthetist since she was appointed as “anaesthetist” in a government hospital by the State Government and had been discharging her duties there as an Anaesthetist. But she should have exercised more care on selecting the Anaesthetist. Dr. Chowdhury had no postgraduate degree/diploma in the field of Anaesthesiology but she had practical training imparted by the State Government and on the basis of which she had been holding the post as Anaesthetist and had been working in the capacity in the government set up. However, she should have been more careful in respect of elderly patient, particularly in view of her limited exposure/training in the field of Anaesthesiology”. Ld. Counsel for the complainant refers to the report of the Medical Council and alleges that Dr. Chowdhury was negligent and inefficient which resulted the death of the patient. That, inspite of availability of qualified Anaesthetist, OP-1&2 engaged Dr. Ghosh at the relevant point of time, and Dr. Ghosh was also impleaded. However, expert opinion was sought for from Burdwan Medical College and Hospital on the allegation before CMOH by the complainant against the negligence of the doctors and nursing home. Before the Chairperson CMOH enquiry Committee Dr. Mukherjee who examined the patient on 10.06.2008 at 4 p.m. stated that when he found Dr. Chaudhuri anticipating difficult intubation due to edentulous jaw, loose and protruding teeth, asked for his help during intubation. He examined the patient and saw the investigation reports. The reports which were shown were within normal limits. On examination he found oral hygiene was poor, gums unhealthy, loose and protruding teeth. The loose teeth were already tied with silk and silk was fixed outside the oral cavity with micropore tape. Dr. Mukherjee assisted Dr. A. Ghosh during intubation and during Laryngoscopy loose teeth came out. Adequate measures were taken to prevent aspiration. Ventilation was always ensured to prevent any Hypoxia and Multi channel Monitor was always used to monitor the patient. Tinc Benzoin was applied over the gums from which the teeth had come out. Thereafter Dr. Mukherjee left the O.T. as the patient was stable and saturation was maintained and pulse BP was within normal range. He left after taking permission from the concerned surgeon and anaesthesist. He also revisited the patient in I.C.U. after getting information from Dr. Chaudhuri that the patient had developed Pulmonary Oedema post-operatively and was shifted to I.C.U. Dr. Mukherjee stated the fact in his report before the Deputy C.M.O.H. as Chairman of the Enquiry Committee. He stated that as called by Dr. Arunima Chaudhuri, he came to the O.T. of Life Line Nursing Home around 6.30 p.m. on 10.06.2008. The patient was in O.T. with endotracheal tube in place and being mechanically ventilated with oxygen. The patient had developed puolmonary oedema with tachypnoea but was responding to painful stimuli. Oxygen saturation was being maintained above 95% with 100% oxygen ventilation. The patient could not maintain oxygen saturation above 90% with room air, which came below 90%. After 20 minutes (approx) with 100% oxygen supplementation, it was decided to shift the patient to ICU for ventilatory support till the patient recovers. In the ICU, cardiovascular and respiratory care were started and continued by the R.M.O. and the consultant physician. After a couple of hours, improvement in hemodynamic and respiratory parameters occurred, he left the ICU around 10.30 p.m. However, the report of CMOH was not fully relied upon by this Ld. Forum since Dr. Ghosh and Dr. Chowdhury were with the same Hospital BMCH and therefore this Forum preferred for an impartial report and referred the matter to MSVP, SSKM Hospital, Kolkata for opinion of expert.
Complainant alleges that there was gross negligence on the part of OP-2 and OP-3 for causing death of his mother during operation. It is also alleged by the complainant that complainant received the dead body on 12.06.2008 at 1.20 p.m. but some unfortunate incident took place on that date. The complainant, their relatives became excited at the time of receiving the dead body. There were hot altercations and some untoward incident took place in the said nursing home. Police was informed by the nursing home authority. The complainant and his relatives were compelled to bring the dead body at their residence and buried the same. Complainant further alleges that the nursing home authority on false and frivolous allegation filed a criminal case bearing No. Burdwan P.S. Case No. 297 of 2008 on 12.06.2008 u/S. 147/148/323/427/379 of IPC and being influenced by the nursing home authority the police arrested Md. Safi, the elder brother of this complainant on 25.06.2008. The complainant has stated in his evidence in this case that his brother was arrested and was released on bail and he came to know about the said criminal case against this brother only on 26.06.2008 i.e. after 14 days when he attended the court in connection with the release of his brother on bail on 26.06.2008. How far this version of complainant is believable is a question. Moreover, the present complainant Md. Nasim filed a court complaint under Section 156(3) Cr. P.C. against the owner of nursing home and surgeon Dr. Ghosh that Dr. Ghosh who was treating his mother got her admitted on 10.06.2008 and doctor advised the complainant Md. Nasim that her mother will be operated upon for her gall bladder ailment and she was taken to the O.T. and after three hours of such operation Dr. Ghosh and the nursing home authority informed the serious condition of his mother that the doctor and the nursing home authority did not disclose the actual truth that they negligently cause death of his mother during operation. Following the complaint the Burdwan P.S. case No. 363/2008 was started under Section 34, 304B, 420, 201 and 34 IPC. It is interesting to note that in that complaint before the Police the complainant Md. Safi, the brother of the present complainant Md. Nasim, put name of Dr. Arunima Chowdhury as a witness. There is no allegation against the anaesthetist in that complaint.
Ld. Lawyer for Ops argues that to save their skin from the police case lodged by the nursing home authority (OP-1) against the brother of complainant for ransacking and causing damage of the nursing home after the death of his mother, the complainant has filed this police case after about 2 years of the incident. Thereafter, he filed this case before this Forum against the nursing home authority and both the doctors, surgeon and anaesthetist, on the allegation of negligence and deficiency in service. The case is filed on 09.06.2010 while the incident of death took place on 11.06.2008 in the nursing home of OP-1. OP argues that the complainant with an ulterior motive willfully and intentionally penned through the name and signature of Dr. Monoj Mukherjee from the discharge certificate. He also intentionally suppressed the name of Dr. Mukherjee before the Medical Council.
The OP admits that in the Operation theatre after post-operative period due to development of Pulmonary Oedema the situation became out of control. The OP-3 immediately took help of several experts who were present and assisted Dr. Chowdhury and remain present in the O.T. and one of them was Dr. Monoj Mukherjee, the RMO-cum-Clinical Tutor, Anaesthesiology, BMCH.
It appears from the record vide Order No. 53, dated 05.05.2014, this Forum found that Dr. N. N. Mukherjee, Department of Surgery of Burdwan Medical College and Hospital, Burdwan submitted his expert report in this case. Admittedly, OP-2 is also attached as a Surgeon in the department of surgery, BMCH against whom the case is filed on the allegation of negligence and deficiency in service. So an impartial report was called for from the expert Doctors of SSKM Hospital, Kolkata and the order of this Forum was also upheld by the Hon’ble SCDRC, WB in RP No. 80/2014 vide order dated 19.01.2006. From the report of IMGMER, SSKM Hospital, Kolkata in response to the questionnaires by the complainant, it appears that the answer to the questionnaires to the expert surgeon was given by Dr. Bitan Kumar Chattopadhyay, Professor and Head of the Department, Department of Surgery, IPGMER & SSKM Hospital, Kolkata. Dr. Chattopadhyay replied that as per records available, OP-2 Dr. Sandip Kr. Ghosh’s prescription dated 03.06.2008 shows, that the investigation reports of L.F.T., Blood SUGAR(Random), Creatinin, Urea has been taken into records by Dr. Ghosh and opined that all were within normal limits and he noted Cardiomegaly in X-ray Chest PA View and advised ECG. He also advised repeat of USG of whole abdomen for cholecystitis, which was done on 05.06.2008 and the impression was chronic cholecystitis with cholelithiasis, probe tenderness over gastric point. As per reports Dr. Chattopadhyay opined that patient was examined by RMO on 10.06.2008 at 10 a.m. and again at 2.10 p.m. by some physician or surgeon before the patient proceeds for operation. So it cannot be said with certainty that Dr. Sandip Ghosh did not examine the physical condition of the patient immediately before the operation.
Dr. Chattopadhyay also found that as per records it is evident that a consent form duly filled up which states that the signatory has been explained every details of the operation and its possible pre-operative and post-operative complications, has been signed by some Md. Safi on 10.06.2008 and duly endorsed by some doctor. It is implied that the person who has signed the document had been explained about the clauses mentioned in the document and has signed the document after getting adequately explained. Therefore, it appears to this Forum that from the repot of Dr. Chattopadhyay of SSKM Hospital the allegation of the complainant that no proper consent was taken nor the patient party was explained about the pros & cons of the surgery or complications which may crop up, rather we find that they were getting adequately explained. However, on being asked, the expert opined that it is not possible from the BHT to state whether after operation Dr. Ghosh advised for Histopathology test or Biopsy test after removal of gallbladder.
Ld. Lawyer for complainant alleges that failure to prescribe the Histopathology test indicates that OP-2 did not expertise reasonably taken care of certain precautions and knowledge as expected. He relied on the decision of First Appeal No. 703/2013.
There was no mention of actual time when operation started and when the operation was finished and when the patient was shifted to ICCU, but there is a noting on BHT of 10.06.2008 at 4.45 p.m. It suggests that the patient was put on continuous ventilation when the patient was anaesthetized for the operation. Dr. Chattopadhyay of SSKM Hospital also opined lastly, that from BHT it is not clear, which is to be precise a collection of individual records, a properly formatted document with the continuity of records like a proper BHT as stated by Dr. Chattopadhyay, is lacking here, so it is very difficult, rather impossible to this Forum to opine definitely whether there is any amount of negligence and lack of care on the part of Dr. Sandip Ghosh in treating the patient. So there is no conclusive finding in the expert opinion specific, definite or finality in this report about the negligence of Dr. Ghosh as a surgeon who operated upon Jibannesha Begum on 10.06.2008 in the Nursing Home of OP-1.
During hearing argument ld. Lawyer for the complainant cited decision that as a legal heir of deceased this petition is well maintained in this Forum though there is an argument from the side of the OP that the son of deceased, namely, Md. Safi was all along with the patient during her treatment, during operation and receiving dead body after death following operation, said Safi against whom police case was started for vandalizing the nursing home being following the death of his mother who never came forward ever as a witness in this Forum. Md. Safi also filed a police case against the nursing home authority and Doctors (Surgeon) alleging negligence and causing death of his mother. Ld. Lawyer for OP submits that in retaliation and to save his skin from the police case, Md. Safi filed the subsequent police case against the Nursing Home and also against doctors. We have already mentioned that in that police case the Anaesthetist Smt. Arunima Chowdhury has been shown as a witness in his favour and there is no allegation against the Anaesthetist by Mr. Safi. Therefore, OP raised question as to why said son Md. Safi never appeared before this Forum to make any complaint, on the other hand, his brother Md. Nasim is the complainant in this case, however, complainant cited the reference 1997 (1) CPJ 96 that any legal heir of the deceased can file a complaint petition before this Forum.
Ld. Lawyer for complainant further submits that the complainant has right to file this case against the Ops and the same is very much maintainable and relied upon decision of AIR (SC) 2004 (5088).
Regarding consent it is a legal requirement of medical practice and not only a procedural formality. Complainant alleges that since the surgery was elective and not emergency, the consent has not been obtained from the patient herself. Though she was competent adult and in a position to give consent but a mere procedural consent in blanket form has been obtained in generalized proforma. Therefore, the consent is not valid. He cited 2008 AIR (SC) 1385, 2008 (2) CPJ 31, 2009 (4) CPJ 9 and Revision Petition No. 24 of 2010. In this regard we find that the report of the expert from MSVP, SSKM Hospital, Kolkata and Dr. Bitan Kumar Chatterjee, Professor, HoD, Department of Surgery is very much clear in giving answer to the queries of the complainant. Ld. Expert opined that the investigation reports of blood test taken into record by Dr. Ghosh, the Surgeon who operated upon the patient and Dr. Ghosh found that all were within normal limits. Dr. Ghosh advised certain tests like PCV, FBS, Urea, LFT, UR, USG of whole abdomen for Cholecystitis, which was done on 05.6.2008. As per records it was evident that one Dr. G. Majumdar examined the patient on 25.05.2008 and Dr. Sandip Ghosh examined her on 03.6.2008. On the date of operation i.e. on 10.06.2008 the patient was examined by RMO of the nursing home at 10 a.m. again and 2.10 p.m. by same physician and surgeon and thereafter on that date i.e. on 10.06.2008 the patient proceeds for the operation. Ld. Expert also opined that it cannot be said with certainty that Dr. Sandip Kr. Ghosh did not examine the physical condition of the patient immediately before the operation. Dr. Chatterjee further opines that it is evident from records that consent form duly filled up which suggests that the signatory has been explained every details of the operation and its pre-operative and post-operative complications. The consent form was signed by Md. Safi, the son of the deceased patient on 10.06.2008 at 10 a.m. and at 2.30 p.m. also there is signature of some doctors that the patient was proceeded for operation after getting adequately explained. Therefore, the argument laid down by ld. Advocate for the complainant that effective consent had not been obtained but only in generalized proforma, is not acceptable to this Forum.
Dr. K. K. Kundu, Prof. & HoD, Anaesthesiology, IPGME&R, Kolkata-20 in his opinion also stated that consent had taken from son of the patient, namely, MD. Safi by the nursing home authority before operation. Though there is lacking in BHT and consent form wherefrom procedure of operation as well as pre-operative complications which might arise was explained to the patient party. However, in his final opinion Dr. Kundu also stated that from BHT it is not clearly indicated the lack of care and negligence by Dr. Sandip Ghosh and Dr. Arunima Chowdhury for causing the death of the patient. Dr. Kundu specifically answered to the queries that before operation Dr. Ghosh had examined the patient on 25.5.2008 as per BHT note. That RMO of the nursing home had examined the patient before operation and referred for surgical review and Anaesthetic opinion and had taken consent for operating the patient on 10.6.2008, before operation.
Ld. Lawyer for the complainant specifically argues that the doctor-surgeon committed negligence by taking assistance of an unqualified Anaesthetist i.e. Dr. Arunima Chowdhury who has a degree or diploma in the subject, though there was availability of qualified Anaesthetist in the Burdwan Town at the relevant point of time. He cited 2014 (2) CPJ 60. He further argued that because of failing to take standard of care in accordance with the medical science it causes death of the patient and alleges that the doctors ought to have discharge their onus by adducing of Dr. Monoj Mukherjee who was present during operation. In this regard the order of West Bengal Medical Council, dated 23.08.2017 is relevant. It is indeed on the allegation of complainant against Dr. Ghosh and Dr. Chowdhury for causing death of his mother during gallbladder stone operation. The Council in its meeting dated 19.11.2013 & 04. 12.2015 enquired and chargesheets framed against both the doctors. That, Dr. Ghosh did not appoint a qualified Anaesthetist in the operation on 10.06.2008 and charges framed against Dr. Arunima Chowdhury is that during operation the patient developed Pulmonary Oedema during reversal from anaesthesia and ultimately died on 11.06.2008.The Council unanimously decided and substantiated charges against the two doctors and at the same time observed that Doctor-Surgeon i.e. Dr. Sandip Ghosh was not at fault to select the Anaesthetist Dr. Arunima Chowdhury as she was appointed in a Government Hospital and has been discharging her duties as Anaesthetist. However, the Council opined that Dr. Ghosh should have exercised more care on selecting the Anaesthetist and at the same time Dr. Chowdhury should have been more careful in respect of an elderly patient, particularly in view of Dr. Chowdhury’s limited exposure/training in the field of Anaesthesiology. The Council unanimously decided that both the charged medical practitioners be “warned” with intimation to all concerned. Ld. Counsel for the complainant therefore argues that both the doctors have committed negligence in providing treatment to the mother of the complainant and failed to take standard of care which was required to be taken.
But from the expert opinion which we received from MSVP, SSKM Hospital, HoD, Department of Surgery Dr. Bitan Kr. Chattopadhyay, he opined that from the BHT it is to be precise a collection of individual records, a properly formatted documents with the continuity of records like a proper Bed Head Ticket is lacking here. It is very difficult rather impossible for Dr. Chattopadhyay to opine whether there is any amount of negligence and lack of care on the part of Dr. Sandip Ghosh in treating the patient. We have also cited the report of Prof Dr. K. K. Kundu , HoD, Anaesthesiology at IPGME&R that from the BHT it is not “clearly” indicated “lack of care and negligence” by Dr. Sandip Ghosh and Dr. Arunima Chowdhury for causing the death of the patient. Therefore, we find that there is no sufficient evidence from the side of the complainant to prove conclusively that there is negligence and deficiency in rendering medical treatment/service or lack of care/standard of care not taken in this case by the Ops. Rather from the evidence on record, as well as, documents filed by the parties and questionnaires put to the experts, answers thereto and the various reports, it goes to show that during the operation of the mother of the complainant on 10.06.2008 after taking utmost care and attention, the patient was undergoing operation but unfortunately crisis in the Operation Theatre arose due to development of Pulmonary Oedema. We also find that the same was managed involving several experts in Anaesthetist who remained present in the Operation Theatre, namely, Dr. Monoj Mukherjee of Burdwan Medical College & Hospital, Dr. Amit Banerjee, Prof., Anaesthesiology, Burdwan Medical College & Hospital, but the complainant willfully suppressed Dr. Mukherjee to come before this Forum, nor he has cited him as his witness. Dr. Arunima Chowdhury is quite competent in Anaesthesia working since 2000 in that posting and she submitted all his certificates of service in the capacity of an Anaesthetist in Government Hospital. No evidence of maltreatment or insufficiency on the part of the nursing home authority is proved by specific evidence by the complainant.
Another point during argument is raised by ld. Lawyer for complainant that Dr. Ghosh did not advice for Histopathology test after removal of the Gallbladder. But from the BHT, Dr. Bitan Kr. Chattopadhyay opined that it was not possible form him to state whether after operation Dr. Ghosh did not advice Histopathology test as there is no note on the BHT in this regard. So any amount of negligence in this regard on the part of Dr. Ghosh cannot be definitely opined by Dr. Chattopadhyay as BHT is lacking in this issue. Complainant failed to prove by sufficient evidence in this regard. However, ld. Lawyer for complainant cited reference of First Appeal No. 703/2013 in this regard.
After giving a patience hearing of argument tabled by Ld. Advocates of both sides and in the light of above discussion with reference to all the “expert reports” and the BHT and other documents, we find that complainant failed to prove conclusively that there is any indication of carelessness or negligence on the part of Dr. Sandip Ghosh or Dr. Arunima Chowdhury for causing death of the mother of the complainant in the nursing home of OP-1. Nonetheless, to say there is no evidence to prove the case that the nursing home was negligible in giving or providing sufficient service to the patient, i.e., the mother of the complainant or causes any negligence for the fateful death of the mother of the complainant in the nursing home on 11.06.2008. As a result the case fails.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 87/2010 be and the same is dismissed on contest without any cost.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me (Jayanti Maitra (Ray)
President
(Jayanti Maitra (Ray) DCDRF, Burdwan
President
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
