Tripura

StateCommission

A/52/2016

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

Versus

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

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

04 Apr 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

Appeal Case No.A.52.2016

 

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

 

… … … … Appellant/Complainant.

Vs

 

1. The Society for Tripura Medical College 
   & Dr. B.R. Ambedkar Memorial Teaching Hospital,
   Hapania, Agartala, West Tripura,
   Pin:799014. 
   A society, registered under the Societies Registration Act, 1860, 
   represented by its Chairman.

        

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.

… … … … Respondent/Opposite Parties.

 

For the Appellants:                                               Mr. Paramartha Datta, Adv.

For the Respondent:                                             Mr. Amrit Lal Saha, Adv.

Date of Hearing:                                                    08.03.2018.

Date of Delivery of Judgment:                            04.04.2018.

 

J U D G M E N T

 

U.B. Saha, J,

Both the appeals being Appeal Case Nos. A/52/2016 and A/13/2017 are directed against the judgment dated 21.11.2016 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.86 of 2015 whereby and whereunder the learned District Forum directed the appellants in Appeal Case No.A/13/2017 (hereinafter referred to as opposite parties) to pay an amount of Rs.3,50,000/- to the appellant in Appeal Case No.A/52/2016 (hereinafter referred to as complainant) as compensation for deficiency of service and cost of litigation. No other amount towards extra costs was awarded. Opposite party nos. 1 and 3 are directed to pay the said amount as they are vicariously liable for the act of opposite party no.2. Payment is to be made within two months, if not paid; it will carry interest @ 9% per annum.

2. As both the appeals are directed against the same judgment, they are taken up together for hearing and disposal.
3. Heard Mr. Amrit Lal Saha, Ld. Counsel appearing for the complainant as well as Mr. Paramartha Datta, Ld. Counsel appearing on behalf of the opposite parties.
4. Brief facts of the case needed to be discussed are as follows:-

The complainant went to Tripura Medical College & Dr. B.R. Ambedkar
Memorial Teaching Hospital (hereinafter referred to as opposite party nos.1 and 3/TMC) on 09.09.2014 for treatment there. Dr. Kabita Baruah, opposite party no.2, advised her for endoscopy. Accordingly, endoscopy was done on her on 10.09.2014 by Dr. Baruah, but after endoscopy, her condition was very serious and intense pain was developed in her right lower chest and right upper abdomen. There was breathing problem also. So the opposite party no.2 referred her to ILS hospital to a Cardio Thoracic Vascular surgeon on 12.09.2014. Her condition became critical. Again endoscopy was done at ILS Hospital on 13.09.2014 and it was found that there was an abnormal hole in the esophagus which was caused by earlier endoscopy done at TMC Hospital. As her condition was deteriorating, she was admitted to ILS Hospital, Agartala under the care of Dr. Sharad D. Sonawane. She was also advised for endoscopic SEMS (self expanding metallic stent) placement by the consultant Dr. Sonawane at ILS Hospital, Agartala. But her family members got very much worried with the worsening condition of the complainant and got her discharged from ILS Hospital Agartala at 08.45 A.M. on 14.09.2014. Thereafter, she was immediately shifted by Air to Kolkata and got her admitted at Apollo Gleneagles Hospitals, Kolkata on that date itself, where a right sided chest drain was placed by Dr. U. Goenka (consultant Radiologist) on 15.09.2014 to drain out the hydropneumothorax. A sample from the drain fluid showed infection with the bacteria, slenotrophomonas, maltophilia. She received treatment for the infection. UGI endoscopy was conducted at Apollo Gleneagles Hospitals on 16.09.2014 which showed large fistula opening seen at 32 cm in esophagus. The fistula is a medical term meaning abnormal opening. The fistula was closed by applying ovesco clip during the UGI endoscopy on 16.09.2014. She remained admitted and treated in the Apollo Gleneagles Hospitals, Kolkata w.e.f. 14.09.2014 to 02.10.2014. In her complaint petition she also stated that due to negligence and lack of proper precautions and due care on the part of Dr. Kabita Baruah of TMC, Agartala, a perforation occurred in the esophagus (food pipe) of her on 10.09.2014 while the surgical intervention of esophagoscopy was done at the TMC Hospital, Agartala. The perforation further led to hydropneumothorax (collection of fluid and air between right lower and right inner chest wall) and bacterial infection which required prolonged painful and expensive medical and surgical treatment at ILS-Hospital Agartala and thereafter at Apollo Gleneagles Hospitals, Kolkata. In her complaint petition, she has also mentioned the amount spent by her for the purpose of her treatment and the travelling expenses which are as follows:-

Expenses at Tripura Medical College & Dr. BRAM Hospital-Hapania, Agartala, Tripura
Expenses at ILS Hospital Agartala, Tripura
Expenses at Apollo Gleneagles Hospital, Kolkata
Expenses for travelling by air with escort and medical attendant, including Air ambulance
Nursing Expenses for 130 days @300 per day
Expenses for 30 days @ Rs.1000.00 per day on account of boarding, lodging and local conveyances at Kolkata

 

and claimed for the aforesaid amount being cost of the treatment and other expenses and also for an amount of Rs.10 lacs as compensation for causing mental agony and harassment.

5. The opposite parties, the Society for Tripura Medical College and Dr. Kabita Baruah filed their written statement denying the claim of the complainant. It is stated that endoscopy was done under general Anesthesia. She was shifted to E.N.T. ward on 03.30 P.M. The patient complained of pain after four 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 12.09.2014. 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 happened during the endoscopy in the TMC Hospital. All medical facility provided to her. There was no negligence on the part of Dr. Kabita Baruah, the opposite party no.2 or TMC, the opposite party nos.1 and 3 therefore, the opposite parties prayed for dismissal of the claim.
6. On the basis of the contention raised by the parties in their respective pleadings the learned District Forum framed the following points which are as follows:-

1. Whether there was any medical negligence which caused hole in the esophagus of the complainant?
2. Whether petitioner is entitled to get compensation as claimed?

7. While adducing the evidence, the complainant produced the photocopy of medical papers of TMC, ILS Hospital and Apollo Gleneagles Hospital, bill receipt of ILS, TMC and Apollo Gleneagles, air tickets, RTI application and lawyers notice. She also produced the statement on affidavit of herself as P.W.1. 
8. On the basis of the application of the complainant, one expert, Dr. Amitava Roy, a Gastroenterologist as well as Endoscopy expert working in the ILS Hospital was also examined.
9. Opposite parties on the other hand, also produced statement on oath of Dr. Arindam Dutta, one expert Gastroenterologist, Dr. Prasanna K.S. and also opposite party no.2, Dr. Kabita Baruah. Opposite parties also produced some documents like entrance bed head ticket, pre-anesthetic checkup, admission slip, consent form.
10. On the basis of all the evidence on records the learned District Forum passed the impugned judgment.
11. Mr. Saha, Ld. Counsel appearing for the complainant while urging for modifying the impugned judgment so far the lesser awarded amount is concerned would contend that when the learned District Forum on the basis of the evidence on record came to the conclusion that Dr. Kabita Baruah, the opposite party no.2, who conducted the endoscopy did not disclose the risk factors to the complainant and her relatives and also did not abstain from introducing scope when there was muscle spasm and there was carelessness to some extent and also observed that in this case the opposite party nos.1 and 3, TMC Hospital Authority did not arrange pre and post operative care and that the risk factors should have been disclosed to the patient, then the learned District Forum should have allowed at least the amount determined by it i.e. Rs.47,021.00 the amount which was paid to the ILS Hospital and an amount of Rs.6 lacs determined by the learned District Forum, though the complainant paid more than that amount to the Apollo Gleneagles Hospital. To prove his case, the ld. counsel has taken us to the evidence of the opposite party no.2 Dr. Kabita Baruah  who herself admitted in her cross-examination that she is an ENT Specialist, but Oesophagoscopy test can be performed by Gastroenterologist and ENT Specialists both. Gastroenterology was added later in the medical science. She further admitted that rupture of Oesophagus may lead to development of septicemia, Mediastinitis and many other complications in general. In her cross-examination she also admitted that CTVS unit for treatment of Mediastinitis is not available in the TMC Hospital. So the complainant was referred to the ILS Hospital, though according to Dr. Baruah, dilation was not done by her.  

He has also taken us to the evidence of an expert Gastroenterologist Dr. Amitava Roy, who deposed that on 13.09.2014 he was working in the ILS Hospital Agartala and on that date the complainant appeared being referred by TMC Hospital and he has done endoscopy of upper esophagus stomach and duodenum and while doing the endoscopy there was a perforation in the lower esophagus. According to Dr. Roy, the cause of perforation was not known to him, but such perforation might have been caused during previous endoscopy. He has finally contended that considering the other evidences including the evidence of the aforesaid two witnesses when the learned District Forum came to the conclusion that the complainant suffered a lot due to the lapses on the part of the opposite parties, then the entire expenditure incurred by the complainant for the purpose of her treatment due to such negligence of the opposite parties should have been allowed.

12.  

On the other hand, Mr. Datta, Ld. Counsel while urging for setting aside the impugned judgment would contend that the opposite parties by way of adducing evidence established that there was no negligence on the part of the opposite parties including opposite party no.2 Dr. Kabita Baruah as Oesophagoscopy test can be done by Gastroenterologist as well as ENT Specialists and admittedly Dr. Baruah is an ENT Specialist. When the learned District Forum in its findings specifically stated that here in this case, nothing comes out to support that Dr. Kabita Baruah conducted the endoscopy without due care, skill and competence, it is not clear that what was the basis for coming into the conclusion by the learned District Forum that there was negligence on the part of the opposite parties, he emphasized. He has also taken us to show what the medical negligence is. In support of his contention, he has relied upon a judgment of the Hon’ble Apex Court in Kusum Sharma & Ors. Vs Batra Hospital & Medical Research Centre & Ors. 2010 Legal Eagle (SC) 115 wherein the Hon’ble Apex Court held that while deciding whether the medical professional is guilty of medical negligence, the following well known principles must be kept in view which are as follows:-

 

1. “Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”

He has also placed reliance on the judgments of the Hon’ble Supreme Court in Kanta Vs Tagore Heart Care & Research Centre Pvt. Ltd. & Anr. 2014 Legal Eagle (SC) 523 as well as Minor Marghesh K. Parikh Vs Mayur H. Mehta 2010 Legal Eagle (SC) 855 to show that a simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional.

13. We have gone through the evidence on record from which it appears that admittedly the complainant was initially admitted in the TMC Hospital, Agartala on 09.09.2014 and as advised by Dr. Kabita Baruah, the opposite party no.2, her endoscopy was done on 10.09.2014 by Dr. Baruah and after endoscopy her condition was very serious as she developed intense pain in the right lower chest and right upper abdomen and in consequent thereto she was referred to ILS Hospital Agartala wherein the ILS Hospital Authority informed her that there was a perforation in her esophagus during the previous endoscopy and she was also advised Endoscopic SEMS (self expanding metallic stent) placement, hearing which her family members decided to shift her in Apollo Gleneagles Hospital, Kolkata. It is admitted position that she has paid an amount of Rs.47,021.00 to the ILS Hospital, Agartala and then Rs.6,98,226.18 to the Apollo Gleneagles Hospital, Kolkata and paid other charges as mentioned in her complaint petition. It is also admitted position that Dr. Baruah, opposite party no.2 did not inform the complainant or her relative regarding the risk factor of esophagoscopy/endoscopy and also did not abstain from introducing the scope when there was muscle spasm. Had there been perforation in the esophagus before the endoscopy done at TMC Hospital, then that could have been found by Dr. Baruah herself, but fact remains that she did not inform regarding the perforation of esophagus when the complainant was in the TMC Hospital, rather she was referred to ILS Hospital where doctor of the ILS Hospital informed the complainant regarding the perforation in the esophagus by earlier endoscopy. Therefore, it can be easily said that the perforation of esophagus was caused at the time of endoscopy done at TMC Hospital. More so, when the opposite party nos.1 and 3 i.e. the TMC Hospital Authority go for endoscopy through their doctors like the opposite party no.2, then they should make arrangement for pre and post operative care arrangement, but admittedly there was no post operative care for which seeing the complication of the complainant after endoscopy, she was sent to the ILS Hospital. In Malay Kumar Ganguly Vs Sukumar Mukherjee (2009) 9 SCC 221, the Hon’ble Supreme Court while dealing with the case of medical negligence took note of a case of New Zealand Court in R. Vs Yogasakaran (1990) 1 NZLR 399 (CA) wherein the New Zealand Court opined that the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities.
14. In the instant case, the complainant not only impleaded the Hospital Authority, but also the doctor who had done the endoscopy, but fact remains that the post operative care could not be taken in the hospital after the endoscopy. We have no quarrel with the proposition laid down by the Hon’ble Apex Court as relied upon by Mr. Datta, Ld. Counsel. As by this time it is settled that a medical officer cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure, but here in this case, question is as to whether a patient should be informed regarding the risk factor of doing endoscopy or not and also whether before doing endoscopy the doctor should consider as to whether the post operative facilities are there for such endoscopy. Though there was no direct negligence on the part of the opposite party no.2 so far her judgment are concerned, but while adult size oesophagoscope could not be introduced, due to spasm of muscles, intermediate size scope was introduced and it was difficult to negotiate due to severe muscle spasm, then also, the length of the esophagus up to 35 cm from upper incisor teeth was examined and mucosa was found to be ulcerated and fibrosed, due to cardio spasm. If there was no post operative care for any complicacy at the time of endoscopy and after endoscopy, then the Hospital Authority should not have gone for endoscopy which was done in this case. From the OT Note and the evidence of the Specialists it is transpired that such injuries in the esophagus was caused during the oesophagoscopy done in the TMC Hospital under the guidance of opposite party no.2. It was also written in the OT Note that adult size oesophagoscope could not be introduced due to spasm of muscles and thereafter intermediate size scope was introduced, then also, there was severe muscle spasm and it was difficult to negotiate, the bleeding was also noticed. Therefore, it can be easily said that at the time of introducing adult size oesophagoscope,  the opposite party no.2 noticed bleeding and severe muscle spasm. So, the opposite party no.2 should not have gone for intermediate size of oesophagoscope for second time, particularly, when there was admittedly no post operative care facility. There is no doubt that the decision of taking intermediate oesophagoscope may not be a medical negligence, but  observing the condition of the complainant, the risk factors of doing endoscopy should have been considered and informed the complainant or her party which was not done. So, there is carelessness to the some extent and deficiency of service for which the complainant suffered a lot and had to spend a huge amount. Therefore, we are of the view that the complainant is entitled to the medical expenses spent by her, but not the airfare and other expenses as claimed by the complainant as she was not referred by the ILS Hospital and ILS Hospital also did not say that the treatment which she required would not be done there. Seeing the worsening condition of the complainant in the ILS Hospital, the family members of the complainant became very much worried and took her to Kolkata for better treatment in order to save her. Her suffering was the after-effect of doing the endoscopy in the TMC Hospital which took her first to the ILS Hospital and then to Kolkata.
14. .     In view of the above, we are of the opinion that the learned District Forum committed error while calculating the treatment cost i.e. Rs.47,021/- for ILS Hospital and Rs.6 lacs paid to Apollo Gleneagles Hospital, Kolkata though the complainant paid Rs.6,98,226.18 to the Apollo Gleneagles Hospital, Kolkata and Rs.47,021.00 to ILS Hospital Agartala, in total Rs.7,45,247.18. When the learned District Forum held that the complainant is entitled to the treatment cost, then it should not have awarded 50% of the treatment cost, rather should have awarded the entire amount. Accordingly, the impugned judgment is modified enhancing the awarded amount to the tune of Rs.7,45,247.18 towards expenditure for her treatment instead of Rs.3.50 lacs. We therefore direct the opposite party nos.1 and 3 TMC Hospital Authority to pay the aforesaid amount of Rs.7,45,247.18 to the complainant for their deficiency of service. Opposite party nos.1 and 3 are directed to pay the aforesaid amount as they are vicariously liable for act of opposite party no.2. Payment is to be made within two months, if not paid, it will carry interest @9% per annum.
15. .     In the result, the appeal filed by the complainant being Appeal Case No.A/52/2016 is allowed to the extent indicated above and the Appeal Case No.A/13/2017 preferred by the opposite parties is dismissed being devoid of merit. No order as to costs.

Send down the records to the learned District Forum, West Tripura, Agartala.