In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, Kolkata-700087.
CDF/Unit-I/Case No. 481 / 2003
1) Smt. Sonali Majumdar,
59, Suk Sanatantala Napitpara 1st Lane,
P.O. Chandannagar, Hooghly. ---------- Complainant
---Verses---
1) Union of India, Secretary, Ministry of Railway,
Rail Bhawan, New Delhi.
2) The Chairman, Eailway Board,
Rail Bhawan, New Delhi.
3) The Chief Medical Director, Eastern Railway,
16, Strand Road, Kolkata-700001.
4) The Medical Director, B.R. Sing Hospital,
Eastern Railway, Sealdah, Kolkata.
5) Dr. D.R. Das, Senior D.M.O., B.R. Sing Hospital,
Eastern Railway, Saldah, Kolkata.
6) Dr. Gita Chatterjee, In-Charge of Surgery,
B.R. Sing Hospital, Eastern Railway, Saldah, Kolkata.
7) The President, Indian Medical Association,
Calcutta Branch, 8, Lyons Range, Kolkata-1. ---------- Opposite Party
Present : Sri S. K. Majumdar, President.
Dr. A. B. Chakraborty, Member
Order No. 3 8 Dated 1 0 / 0 5 / 2 0 1 1 .
At the very outset of our discussion in respect of this case we like to point out that initially the case was allowed on contest in favour of the complainant with cost against o.p. nos.1 to 4 and without costs against the o.p. nos. 5, 6, 7 & 8 and o.p. nos.1 to 4 were directed to pay severally and/or jointly compensation of Rs.3 lakhs to the complainant and o.p. nos.1 to 4 were also directed to take necessary action for the recovery of compensation amount proportionately from the staff found guilty / involved by fixing responsibility as public money is involved in railway hospital in Govt. sector and to take at least exemplary measures for non-recurrence of such deficiency of service. The judgment was signed by the President, Male Member Dr. Asit Baran Chakraborty and lady Member Smt. Jhumki Saha on 29.6.10.
An appeal was preferred against the order of this Forum and Hon’ble Mr. Justice P.K. Samanta, President in the order no.3 dt.6.1.11 in FA no.426 of 2010 has been pleased to send the case back on remand on the ground that although the judgment was signed by two Members and the President, one member was not present when the argument was heard finally on merit. But the Hon’ble State Commission has not disposed of this case on merit rather they have been pleased to send the case back on remand to dispose of on merit expeditiously and preferably within 60 days from the date of communication of their order.
It appears on perusal of the record vide order no.34 dt.8.4.10 when this Forum heard argument of both the parties and fixed 29.6.10 for delivery of judgment. On 29.6.10 Hon’ble Lady Member Smt. Jhumki Saha was absent and when the judgment was passed on 29.6.10 she signed on it. In order to remove this irregularity Hon’ble State Commission has been pleased to send this case back on remand to dispose of afresh on merit without interfering any observations made in our judgment dt.29.6.10.
In view of this background we can enter into the case for fresh disposal on merit.
Complainant Smt. Sonali Mazumdar by filing a petition of complaint u/s 12 of the C.P. Act on 24.9.03 has prayed for payment of damage charges of Rs.9 lakhs and to take disciplinary action against the o.p. nos.5 and 6 Dr. D.R. Das and Dr. Gita Chatterjee respectively and to pass any such order or orders as the forum may deem fit and proper.
Fact simpliciter of the case is that the complainant on 11.8.02 got her daughter Tania Mazumdar (at the relevant time 9 years of age) to the B.R. Singh Hospital for medical advice and treatment for her abdominal pain and after being admitted she was given bed no.3 of children ward. Her appendectomy operation was taken by Dr. D.R. Das o.p. no.5 and Dr. Gita Chatterjee o.p. no.6 and after operation on 26.8.02 she was discharged from the hospital. But it is the specific allegation of the complainant that she was not even completely well even at the time of discharge. But Dr. Das was of the opinion that the patient was perfectly alright and as a side effect of the operation regular dressing should be made from Liluah hospital in order to make the child further well and improvement of her health.
The condition of the child started deteriorating and further complications appeared and complainant was advised by doctors of Liluah hospital to consult with the o.p. nos.5 and 6 of B.R. Hospital. But on 29.8.02 o.p. no.5 further gave his opinion that no further medication is required except application of Roxid Kid-50 should be given twice in a day for a period of 5 days and he was further of the opinion that it was merely post operative complication for which necessary dressing at regular interval was required. But even in spite of following advice of o.p. no.5 the condition of the patient instead of being improved deteriorated and she became weaker day by day and further on 5.9.02 it was advised by o.p. no.5 to bring the patient again to the hospital on 9.9.02 for secondary (suture)-surgery.
On 9.9.02 pass culture according to the advice of o.p. nos.5 and 6 was taken. But even in spite of it, no improvement took place rather the condition became bad to worse. Finding no other alternative complainant had to take opinion to other reputed physicians viz. Dr. Arun Chandra Das, Dr. Bimal Kumar Kundu and Dr. Subit Kumar Chatterjee and ultimately on 4.10.02 laparotomy was done by Dr. Subir Kumar Chatterjee at Park Clinic operation theatre and found a piece of ‘gauze’ (abdomen mobs) in the previous operated area and the said piece of gauze was handed over to the father of the child. On 8.10.02 the patient was discharged from Park Clinic and since then her health has been improving gragually.
Being aggrieved complainant lodged a general diary at Narkeldanga P.S. against o.p. nos.5 and 6 for gross negligence and actions adopted by them during the said period of surgery. But the police of Narkeldanga P.S. did not take any action. Being aggrieved against such gross negligence of o.p. nos.5 and 6 complainant gave representation on 10.3.03 to Chief Medical Officer of Eastern Railway, o.p. no.3, but surprisingly the authority remained silent.
Complainant issued reminder letter on 5.5.03 to o.p. no.3 for taking necessary action, but in reply it is only stated by o.p. no.3 that “This office has already taken necessary steps to look after the matter as mentioned in your letter dt.10.3.03”. But what steps actually have been taken has not yet been disclosed to the complainant and due to the inaction and practically non-responsiveness of o.p. no.3, the complainant informed all about the matter to Chairman, Railway Board for taking necessary actions against those doctors for their negligence and the complainant also enclosed all the necessary documents along with his letter of complaint to o.p. no.2. Complainant has stated that on 15.7.03 West Bengal Medical Council replied that “They have sought for comments from the concerned doctors including one of the associate with the treatment and also in furtherance to that complainant Sonali Mazumdar was requested to provide all related documents duly attested of the treatment for her daughter Kumari Tania Mazumdar and as asked for by them, the complainant submitted al those documents on 28.7.03”.
It is also the specific allegation of the complainant that at the time of operation both the doctors o.p. nos.5 and 6 were not so much diligent and fair and thereafter, time and again when the condition of the patient was going to be deteriorated those doctors without checking and taking proper care, advised for secondary suture. Complainant has spent about Rs.1 lakh as medical expenses for the treatment of her daughter including charge of Rs.50,000/- at Park Clinic and Rs.20,000/- for another doctor. Complainant has categorically emphasized that o.p. nos.5 and 6 are bound to pay the damages because all the mischieves were done for their medical negligence and accordingly, she has filed this case with the aforesaid prayer.
O.p. nos.1 to 4 in their w/v filed on 4.2.08 has categorically stated that the complainant has not disclosed her identity as a consumer having right to sue against the o.ps. There is no averment in the petition of complaint that Tapas Mazumdar, the husband of the complainant is a railway employee and he is enjoying the medical facility from railway hospital for his family members.
It is the specific allegation of the complainant that the Chief Medical Director, Eastern Railway, o.p. no.3 did not take any step against the o.p. nos.5 and 6, but it is not correct. O.p. no.3 duly informed the complainant in a letter of reply that necessary step has already been taken against them. Complainant is not entitled to know about the details of the departmental enquiry which is an official secrecy. They have also stated that medical experts, valuable opinion of evidence and essentially required to prove the existence of gauze within the operated area of the patient viz. Tania Mazumdar. O.p. nos.5 and 6 did not admit about leaving of gauze during the operation at B.R. Singh Hospital and the complainant claimed for compensation of Rs.9 lakhs is imaginary, inflated and baseless and the petition of complaint is harassing and so it is to be dismissed with cost.
Dr. Gita Chatterjee o.p. no.6 in her w/v filed on 21.9.07, denying interalia of the material allegations against her has contended that on 11.8.02 Kumari Tania Mazumdar, daughter of the complainant admitted in the surgical B.R. Singh Hospital in the children ward with pain in her lower abdomen. The patient was examined in the nest morning by o.p. no.6. Clinical tests including USG of lower abdomen were taken.
The patient was examined by o.p. no.6 Dr. D.R. Das in the operation theatre. Emergency appendectomy operation was performed by both the doctors. Her post operative period was uneventful except for mild pain when was discharged from the hospital on 26.8.02. with the advice to get her wound dressed regularly from Liluah Railway Hospital. The patient was reviewed on 5.9.02 and 9.9.02 and she was advised to have pass culture and sensitivity test. The patient as advised did not turn up after 9.9.02 as she was in several times treated by several private medical practitioners, prescribing higher antibiotic, resulting in superficial healing of the wound.
Ultimately, Dr. S.K. Chatterjee at Park Clinic on 30.9.02 after surgical operation removed a piece of gauze from the Retroperitoneal space.
Complainant made allegation to o.p. no.3 against o.p. nos.5 and 6 for medical negligence and the complainant was informed that necessary step has already taken against the doctors. Complainant for no reason filed a case before the Chairman, West Bengal Medical Council and President, Indian Medical Association on 1.7.03 along with all the documents relating to the treatment of her daughter Tania Mazumdar. She was asked to submit all the related documents duly attested and the West Bengal Medical Council, the highest professional regulatory authority examined and cross examined o.p. nos.5 and 6 and Dr. S.K. Chatterjee of Park Clinic. On 15.11.05 West Bengal Medical Council passed order that “considering all these aspects the members considered by more than 2/3 majority that Dr. Mrs. Gita Chatterjee and Dr. D.R. Das could not be found guilty of negligence and hence exonerated from the charges labeled against them”. Complainant filed a complaint with Dy. Secretary, Medical Council of India, New Delhi regarding this case although it is neither the appellate authority nor WBMC nor MCI. O.p. no.6 appealed against this impugned order in Delhi High Court which set aside the order of Medical Council of India, New Delhi. O.p. no.6 has totally denied the allegation of existence of the gauze in the operated portion of the patient on the ground that after nodal conformation from the trolley sister and on counting; it was found that the number of gauze applied into the operated portion of lower abdomen were corroborated by sister-in-charge of the instrument trolley. She was carefully treated and discharged after removal of stitches from B.R. Singh Hospital. There was no medical negligency on their part. So there is no deficiency of service on the part of B.R. Singh Hospital.
O.p. no.5 Dr. D.R. Das filed his w/v on 21.9.07 and he has accepted the admission of the patient Tania Mazumdar, her surgical operation in the lower abdomen and appendectomy and her post operative period was largely uneventful, except miled pain. As post care she was advised to regular dressing at Liluah Railway Hospital as advised by o.p. no.5 also. He has also stated that the patient after operation, consulted several private medical practitioners who might have prescribed her highly efficacious antibiotic resulting superficial healing of the wound. He has also stated that Dr. S.K. Chatterjee, surgeon at Park Clinic on 4.10.02 removed a peace of gauze from the operated portion of the patient. Like o.p. no.5 he has also admitted that the complainant took up the matter with o.p. no.3 and the members of West Bengal Medical Council considered all the aspects and did not find any medical negligence on the part of o.p. nos.5 and 6 and it was duly communicated to the complainant and like o.p. no.5 he has also stated that after counting the number of gauzes having conformation from the trolley sister corroborated by the sister-in-charge and there is no discrepancy of the number of gauzes. So the allegation of medical negligence is outright false and the complainant is not entitled to get the relief as claimed for and the hospital is not also careless for negligent in rendering all sorts of medical treatment of the patient.
Decision with reasons
Hon’ble State Commission in their order no.3 dt.6.11.11 in FA no.426 of 2010 in the concluding sentence of their judgment has remanded back this case with a direction for “fresh disposal on merits” and accordingly receipt of the case back on remand we heard both the sides who submitted their respective supplementary BNAs and did not pray for adducing any more evidence and we also heard their argument in full. With this liberty granted to us we are now to deliver a fresh judgment on merit.
In our original judgment dt.29.6.10 we allowed the petition of complaint on contest with cost against o.p. nos.1 to 4 and without cost against o.p. nos.5 to 8. O.p. nos.7 and 8 did not appear. Previously we perused the pleadings of both the parties, evidence both oral and documentary and the BNA. Thereafter considering all the aspects and taking into legal position we passed the judgment. In our previous judgment we gave a direction that after payment of compensation o.p. nos.1 and 4 shall take necessary action for the recovery of the compensation amount proportionately from the staff found guilty / involved as public money is involved in railway hospital and at least an exemplary measure should be taken for non-recurrence of such type of deficiency in service.
One very striking point in this case which also appears astonishing to us that the o.p. nos.5 and 6 in unequivocal language in their respective w/v have admitted that the patient Tania Mazumdar was admitted to their hospital and after taking some clinical tests including USG in the lower abdomen the appendectomy operation was performed by them. They further admitted that after she was discharged from the hospital both of them prescribed for post operational dressing at Liluah Railway Hospital. The patient did it. But when her problem and pain was not mitigated it has interalia been stated in the petition of complaint that o.p. no.5 prescribed her Roxid Kid-50. Further it astonishes us that either of o.p. nos.5 and 6 in their respective w/v which is practically the replica of each other nowhere has stated that a piece of gauze was removed from the operated zone, but it was detected at Park Clinic by Dr. S.K. Chatterjee. It is further surprising rather unfortunate to note that both the doctors being o.p. nos.5 and 6 in their respective w/v had given an explanation that the number of gauze taken by the trolley sister is in conformity and corroborated by the sister-in-charge. To our estimate and knowledge based on the pleadings and fact of the case supported by evidence it is nothing but a camouflage and illusionary explanation given by both the doctors o.p. nos.5 and 6 not only in order to save themselves from the liability of medical negligence but also save the hospital authority against whom there is specific and clear charge of medical negligence brought by the complainant on the basis of evidence both oral and documentary. We are constrained to hold that if the fact of number of gauze carried by the trolley sister corroborated by sister-in-charge was just and proper and correct in that event what debarred o.p. nos.5 and 6 to deny that a gauze from the operated portion of the patient was not removed by Dr. S.K. Chatterjee at Park Clinic? And that no gauze at the operated zone remained with the patient. Practically o.p. nos.5 and 6 on this very important point which is the crux of this case is not only conspicuously silent but also extremely evasive in their reply which it its turn leads us to make the inference that in indirect way they have admitted the allegation of medical negligence labeled against them by the complainant.
In view of this position we are constrained to hold that definitely there was negligence on the part of o.p. nos.5 and 6 because they were not as much as careful as common prudence demands to check and verify that whether any foreign substance viz. here the gauze remained at the operated zone of the patient. There is no evidence on this point that such type of care was taken by the doctors o.p. nos.5 and 6. Is it too much an expectation that the doctor would be particularly in a case of surgery be such careful at the stage of operation. Does it not amount to medical negligence? It does not admit of any excuse that the number of gauzes was in conformity and corroborated by the sister-in-charge with the trolley sister and we are not ready to accept this explanation.
We do not like to give much emphasis on the observation of West Bengal Medical Council and Medical Council of India, New Delhi because we are of the opinion that this does not constitute at least to us for the medical negligence committed by the doctors and the hospital authority in respect of the present case when viewed from the particular nature of the case.
It is not understood by us and we confirm that any man having common prudence will believe that what was the difficulty asking the complainant that when the abdominal pain of the patient continued, why the doctors particularly o.p. no.6 suggested that nothing to be worried of and prescribed that everything will be cured by way of medication and accordingly he prescribed Roxid Kid-50. Even thereafter when the pain was not subsided we equally fail to understand why they did not take another USG / x-ray and other appropriate clinical tests for ascertaining that why the pain was subsisting? If those attempts and measures were taken by the doctors in that even we could give them clean chit that they left no stone unturned for giving proper medical care to the patient. But in its stead it is very unfortunate that not only they denied the allegation of medical negligence but at the same time tried to give a camouflage by counting the number of gauzes etc as said above and also it rather appears astonishing to us that how o.p. no.6 suggested that her abdominal pain will be mitigated by way of only medication and in support of his assertion he prescribed Roxid Kid-50. Does it not amount to medical negligence on the part of concerned doctor o.p. no.6 who instead of taking appropriate measure for the recovery of the patient had taken resort to the plea that it will be cured by only medication? Our opinion is that why appropriate steps ought to have been taken generally by the other doctor as taken by Dr. S.K. Chatterjee at Park Clinic not taken by o.p. nos. 5 & 6. Definitely he could understand that the pain existed because of some surgical error or want of proper care which could not be cured by medication as opined by Dr. D.R. Das o.p. no.6. In view of this position we appreciate the measure and care taken by Dr. S.K. Chatterjee of Park Clinic who saved the life of the tender aged girl who even after undergoing operation suffered a lot and according to the allegation made out in the petition of complaint by the complainant, if such pain continued for some more days it could involve her risk of life.
After the case came back on remand supplementary written argument has been filed on behalf of o.p. nos.5 and 6. But neither any supplementary BNA nor any evidence has been filed from the side of o.p. nos.1 to 4 and o.p. nos.7 and 8 are not contesting this case. We have perused the supplementary BNA filed by o.p. nos.5 and 6 wherein it has been alleged that the pleadings of the complainant have not been substantiated by evidence. It has been argued that the compensation awarded has not been considered on rational basis and the quantification of damage has not been substantiated and they have also pointed out that the Consumer Forum cannot give any direction “to do or to desist” any authority as reported in 1991 (1) CPR page 391 but according to them Ld. Forum has given direction to o.p. nos.1 to 4 to take necessary action for the recovery of compensation from the staff found guilty/ involved by fixation of responsibility and they have also pointed out that there is neither any laches or any medical negligence nor any deficiency of service on the part of the o.ps.
We cannot accept the argument of ld. lawyers of o.p. nos.5 and 6 as pointed out in their supplementary BNA reported in 2003 CTJ 775 of Hon’ble National Commission on the ground that the case referred to herein relates to the fact that no expert evidence was brought on record to prove that the operation of the patient was not carried out as it ought to have done. In our present case there is no question of operational error committed either by o.p. nos.5 or 6 particularly o.p. no.6 because it was for their negligence the gauze inside the operated zone of appendectomy remained with the patient and it was not removed by the carelessness of doctors and further when the patient complained of abdominal pain instead of taking appropriate care by clinical tests viz. x-ray or USG o.p. no.6 suggested that nothing to be worried and the pain will disappear by way of medication and being confirmed he prescribed Roxid Kid-50; but it was disproved by Dr. S.K. Chatterjee by Park Clinic when after reopening the abdomen it was detected that only for the existence of gauze after operation at the operated zone the pain was caused and it continued and it was only cured when the gauze was removed. We have elaborately discussed that instead of assuming their responsibility both doctors o.p. nos.5 and 6 wanted to justify their negligence by way of submitting their respective BNAs and we have also already discussed that they by way of taking the mathematical device of counting the number of gauze of trolley sister and sister-in-charge. They were conspicuously silent as we have already pointed out that the patient was recovered and pain was subsided when Dr. S.K. Chatterjee at Part Clinic removed the gauze from the operated zone of the patient. In view of this background this case to our estimate is not applicable in the present case.
They have also referred to one decision reported in 2003 CTJ 775 of Hon’ble National Commission on the point that in absence of any expert evidence to prove that the operation namely the Tubectomy in a private nursing home the allegation that the operation done by the doctor failed to protect the patient from conceiving again is not applicable in the present case. We have already pointed out that it is not the allegation of the complainant that there was operational error, but as the gauze which we have elaborately discussed earlier was not removed from the operated zone in time, it resulted extreme pain to the patient which was ultimately removed by Dr. S.K. Chaterjee of Park Clinic and the pain was subsided. So, the case referred to here viz. 2003 CTJ 775 (CP) (NCDRC) is not squarely applicable in the present case because if the doctors, as we have already said, were diligent and careful in removing the gauze in question in time there was no occasion on the part of the complainant to bring this case.
On the other hand, ld. lawyer of complainant has also referred to some decisions, one reported in (2011) 1 WBLR (SC) 85 [Supreme Court] on the point of compensation caused by mental agony and loss suffered by parents for the death of their son wherein the Hon’ble Supreme Court enhanced the compensation from Rs.1 lakh to Rs.2 lakhs not only on the ground of mental agony, but also for escalation of cost of living. In the instant case the original claim of compensation was Rs.9 lakhs , but we awarded compensation onluy Rs.3 lakhs for her mental agony and harassment and for meeting extra cost of medical treatment of her daughter. Ld. lawyer of complainant also referred to us another decision reported in 2011 (1) CHN (SC) 14 of Hon’ble Justice G.S. Singhvi and Ashok Kr. Ganguly wherein after giving due consideration of various decisions on medical negligence including the case of Jacob Mathew vs. State of Punjab, 2005 (6) SC 1, Bolam Vs. Friern Hospital Management Committee 1957 (2) All England Law Reporters 118, J.J. Merchant vs. Srinath Chaturbedi 2002 (6) SCC 635, Lucknow Development Authority vs. M.K. Gupta 1994 (1) SCC 243, Martin F D’souza vs. Md. Ishfaq 2009 (3) SCC 1 and others. It was observed that with regard to establish medical negligence the Fora before forming an opinion it is the duty of the Fora that the opinion of the medical expert is necessary and accordingly it depends upon that it is difficult to come to an independent opinion the Fora without any opinion of medical expert and to arrive at a right conclusion that there is medical negligence, so the assistance of expert opinion is required and the relevant portion of the most important decision referred to hereinabove ‘runs like’, “in the opinion of this court before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This court makes it clear that in this matter no mechanical approach can be valid by this Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory”. In our opinion this esteemed observation is not only of high importance with regard to asking for expert opinion but also a governing and guiding principle to us that when the court should call for expert opinion on the allegation of medical negligence.
In view of the observation as quoted above we are again to reiterate that as there was no operational error by doctors o.p. nos.5 and 6 the Forum did not find it necessary to call for any expert opinion. Further more, either of the parties did not also pray for any opinion of expert doctor on this point. We cannot avoid the main question which is very simple one that after the complaint of the patient of her abdominal pain after surgical operation if the doctor instead of adhering to solve the same by medication took x-ray or further USG and removed the gauze all the problems could be solved which was exactly done by Dr. S.K. Chatterjee of Park Clinic. In view of this position we have no hesitation to deviate from our original observation and ordering portion being order no.35 dt.29.6.10, save and except the point that cost is to be awarded against o.p. nos.5 and 6 also. We do not like to make any point against o.p. nos.7 and 8 with regard to medical negligence.
Hence, ordered,
That the case of the complainant is allowed on contest with cost against o.p. nos.1 to 6 and no order is passed against o.p. nos.7 and 8. O.p. nos.1 to 6 are directed to pay severally and/or jointly a compensation of Rs.3,00,000/- (Rupees three lakhs) only to the complainant for mental agony and harassment and litigation cost of Rs.20,000/- (Rupees twenty thousand) only making a grand total of Rs.3,20,000/- (Rupees three lakhs twenty thousand) only within 45 days from the date of communication of this order, failing which it will carry interest @ 10% p.a. till full realization.
Supply certified copy of this order to the parties.
_____sd-_______ ______sd-________
MEMBER PRESIDENT
