SMT. S. S. ALI, MEMBER
The complainants’ case, in short, is that Arati Ghorai w/o late Kanai Ghorai had abdomen pain since May 2012. On 24-05-2012 an USG of whole abdomen of Arati Ghorai since deceased was done by Dr. S. Molla and from the USG report it was found that there was ‘Cholelithisasis’ i.e. multiple Calculi was found in the Gall Bladder of the said patient. That on 01/06/2012 the said patient was taken to the Nursing Home of OP no. 1 for treatment. The OP no. 1 is the Proprietor of Janakalyan Sevasadhan (Nursing Home) and Op no. 2 is attached with the said Nursing Home having a degree of B.H.M.S. The complainants’ story go to show that the Op no. 1 told the patient party that there was experienced surgeon at the said Nursing Home for operation of gall bladder, but OP no. 1 did not disclose the name of doctor and asked the patient party to deposit a sum of Rs. 18,000/- for the operation of her gall bladder. The operation was done by Op no. 2 on 01-06-2012. From the blood report dt. 01-06-2012 it reveals that the patient was suffering from ‘jandic’ but the Ops operated the patient which was out of standard protocol of surgery and the patient was discharged on 08-06-2012 with the diagnosis ‘CB’ i.e. cancer in Gall bladder and the ops referred the patient to Chittaranjan Hospital. A specimen of gall bladder of said patient was examined and the said examination report dt. 07-06-2012 reveals ‘No evidence of malignancy is seen in the sections examined of said gall bladder’ i.e. no cancer, but the said gall bladder was infected i.e. “Chornic Cholecystitis”. The USG of the whole abdomen of Arati Ghorai, since deceased, was done on 20-06-2012 at Imaging & Diagnostic Centre Pvt. Ltd., Kolkata. But prior to that on 13-06-2012, the patient was admitted under Dr. Rajib Sarkar at the Institute of Post Graduate Medical Education & Research (PG), Kolkata and she was discharged on 19-07-2012 and the discharge summary of the patient goes to show that ’55 year old female had undergone uncomplicated open cholecystectomy for symptomatic gall stone disease 25 days before presentation to this hospital…. Patient is being discharged in a stable condition with an advice to follow up in GE OPD on Tuesday.’ And the diagnosis made was based on Post Cholecystectomy Bile Duct Injury Biloma (?infected) external damage done ERCP and Billary Stenting done. Thereafter an USG of whole abdomen was done by Dr. B. Mukherjee on 20-06-2012 at Imaging & Diagnostic Centre Pvt. Ltd., Kolkata and the said report shows that ‘GB operated and huge ascites is seen’. On 22-06-2012 ‘Ascitic Fluid analysis’ was done and the report states that ‘acute inflammatony exudates No malignant cell seen i.e. there is no cancer’. Then again on 23-06-2012 CT scan of whole abdomen was done and the report suggests ‘massive ascites’. Thereafter, on 27-07-2012 said patient was admitted in the said PG Hospital under Dr. R. Sarkar who diagnosed, ‘F/C post Cholecysteetomy Bile duct injury with Biloma (?infected) managed by external drainage and ERCP abscess’ and the patient was discharged on 08-08-2012 and was advised to follow up visit on 14-08-2012, but unfortunately the patient breathed her last breath on 06-09-2012 at her house. The complainants also state that the OP no. 2 is not at all a surgeon and he has no MBBS degree and without any surgery experience he had operated the said gall bladder and during the said operation he had done bile duct injury with biloma for which the patient was complaining of fever and she was found to have liver lobe cholangitic abscess and pelvic abscess and the patient died due to negligence of the OP.
The patient party by letter dt. 14-09-2012 sought for relevant medical papers pertaining to the treatment of the patient from OP no. 1, but the OP did not send any reply to the said letter. The complainants collected the name of OP no. 2 from some other sources and making the Ops liable for the death of the said patient Arati Ghorai, moved the instant complaint case praying for compensation.
In support of their case, the complainants filed various medical papers pertaining to the treatment of Arati Ghorai, since deceased.
OP no. 1 and OP no. 2 appeared and filed their written version. From the written version of the OP no. 1 it was revealed that one Dr. Srikanta Roy, M.S. done the surgery on 02-06-2012 on Arati Ghorai, since deceased. Thereafter the original petition of complaint was amended and the name of Dr. Srikanta Roy was incorporated as Op no. 3 and the complainants filed their amended complaint.
OP no. 2, in his written version, stated that he is not at all attached with the business activities of the Nursing Home of OP no. 1.
The Op no. 2 is a doctor by profession having BHMS (MD) degree and he is the owner of the 3 storied building in which the nursing home is situated i.e. Janakalyan Seva Sasadhan (Nursing Home) OP no. 1. Second floor of the building is occupied by Op no. 2 for his residential purpose. On 01-06-2012 the patient, Arati Ghorai was brought into the nursing home for admission. Since no RMO was present when the patient was brought in, OP no. 2 was called in to manage emergency duty and after observing the patient, OP no. 2 issued prescription suggested some medicines and injections for the patient to reduce pain, purely on complementary basis that apart he has never done any further treatment of the patient for which he can be made liable.
OP no. 3 has also filed WV and WNA.
All the Ops prayed for dismissal of the complaint case.
Points for consideration
- Whether there was any deficiency in service on the part of the OP no. 12 being the Proprietor of Janakalyan Seva Sasadhan (Nursing Home)?
- Whether there was any negligence on the part of the OP no. 1 being the Proprietor of Janakalyan Seva Sasadhan (Nursing Home) and if there was any material negligence on the part of the OP no. 3?
- Whether the complainants are entitled to any compensation as sought for?
Decisions with reasons
Point nos. 1, 2 & 3:
We take up all the 3 points together for discussion.
Before dealing with the above 3 points be it mentioned here that the case being that of medical negligence, the same was sent to the CMOH, Purba Medinipur for consideration and report and a report was received vide Memo no. 1139 dt. 05-03-2013. Thereafter, we felt that due to absence of impatient notes pertaining to the treatment of Arati Ghorai, we sent the case to Superintendent, PGMER, Kolkata through Director, Medical Education, Govt. of West Bengal, Sasthya Bhavan with a request to submit a report with regard to alleged medical negligence as attributed by the complainant and received a report and proceeded with the final hearing of the case and the 3 points for discussion is framed based on the reports received.
We have gone through all the petitions filed on record and the written version as well as WNA filed by the parties. The complainant no. 1 Saktipada Ghorai adduced evidence as PW-1 on behalf of all other complainants and he was cross-examined by way of questionnaire based on the Examination-in-Chief filed. The PW-1 in his reply to question no. 17 stated that ‘she (patient) was fit for discharge’. Op no. 3 has also adduced evidence as OPW-1. He was also cross examined by way of questionnaire. One Dr. Rajib Sarkar was examined and he adduced evidence on behalf of the complainants and stated in his Examination-in-Chief that there was complication at the time of GB operation and the complications should be managed by the operating team of doctors. He also stated in his cross-examination that he cannot say what was the final cause of death of the patient Arati Ghorai and he was one of the doctors of the Enquiry Committee and signed the report after going through relevant documents.
After discharge from Janakalyan Seva Sasadhan the patient was admitted in the PG hospital twice – on 13-06-2012 for the first time and again on 27-07-2012 and on both occasions she was discharged after proper management of the complications. In the second Discharge Summary of Arati Ghorai, since, deceased, was diagnosed with ‘F/C Post Cholecystectomy Bile Duct Injury with Biloma (infected) (managed by External drainage and ERCP and Billary Stenting). Pelvic abscess (managed by PCD). So, in both cases she was drained of Biloma externally with two pigtail drainage under USG. During her stay in the hospital she developed fever for which she received antibiotics. Repeat ERCP was done on 17-07-2012, old stent was removed and new stent inserted and patient was discharged in stable condition. She had pelvic abscess (water collection in the pelvic region) which was managed by PCD. She was discharged with an advice to further follow up.
The report dt. 28-06-2012, which is the Upper Gastrointestinal Endoscopy Report of Arati Ghorai, since deceased, being advised by Dr. R. Sarkar, shows that the patient was suffering from Duodenal Ulcer. The report further shows that in the anterior wall, there was irregular shaped ulcer with regular margin and necrotic clean base was seen and in the post wall, another ulcer of similar characteristics and of 2 mm. size was seen. It bears mentioning in this regard that Duodenal Ulcer does not develop overnight, but it takes a long time. The patient were found to have rt liver cholangitic abscess and pelvic abscess and both was managed with PCD. It is clear that she was suffering from jaundice, but that was not the cause of her aggravated stage which could led to her death. The ERCP report dt. 29-06-2012 being planned and advised by Dr. R. Sarkar shows that Biliary drainage achieved by deployment of a plastic stent across the stricture about 0.5 c.m. below the confluence and there was a sudden cut off most likely due to stricture. The fact that the patient was suffering from jaundice as opposed by the OP cannot be ruled out as the report goes to show that she was suffering from high Bilirubin which indicates presence of jaundice. According to the examination-in-chief submitted on behalf of the OP no. 3 as OPW-1, it is clear that after operation of Arati Ghorai on 02-06-2012, the patient, after her discharge, did not turn back to the Nursing Home of OP no. 1 with any further complications. Instead, she had visited different hospitals and received treatment from different doctors at various point of time. From the medical reports filed by the complainants dt. 28-06-2012 it is observed that her Bilirubin count was 18.3 mg/dl, but the patient at no point of time suffered from any malignancy. From the report dt. 28-06-2012 submitted by the complainants it transpires that Ascitic (Peritoneal) Fluid for malignancy cells of the patient Arati Ghorai were examined but no malignant cell was detected. Therefore, it can be safely said that the patient developed some kind of sepsis which was managed by administration of antibiotics by the treating team of doctors and it cannot be said that the cause of death of Arati Ghorai was due to the negligence of the OP no. 3 or Op no. 2 at any point of time, though the Op no. 1 can be held responsible for not having a RMO in the Nursing Home when the patient was taken there for admission, but that did not cause any hindrance in her treatment in getting operated the day after i.e. on 02-06-2012.
From the above discussions and observations made by us it can be said that the OP no. 1 or OP no. 3 were not negligent in discharging their duties towards the patient Arati Ghorai, since deceased. The patient, Arati Ghorai, breathed her last not due to any negligence on the part of the OP as no deficiency in service on the part of the OPs is proved. Consequent thereof, complainants are not entitled to any relief as prayed for.
All the above 3 points are, thus, disposed of accordingly.
Hence, it is
ORDERED
that the instant case be and the same is dismissed on contest against the OPs without any cost.
S.S. Ali Ritturaj Dey A.K. Bhattacharyya
Member (L) Member President
