State Consumer Disputes Redressal Commission
Westbank Hospital vs Rita Roy on 23 September, 2009
State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.: FA/2009/206 DATE: 23.09.2009 DATE OF FILING: -30.06.2009 APPELLANT : 1.West Bank Hospital, Andul Road, Howrah-9. 2. Dr. Satadal Saha, Consultant Surgeon Of West Bank Hospital, Andul Road, Howrah. RESPONDENT : Rita Roy, D/o Sri. Naresh Chandra Roy, 510, Natupara, Ichapur, P.O.-Ichapur (Nawab Gunge), P.S.-Noapara, Dist-24-Parganas (North). BEFORE: HONBLE JUSTICE : Sri. Aloke Chakrabarti, PRESIDENT. MEMBER : Sri. A.K. Ray. MEMBER : Smt. Silpi Majumder. FOR THE APPELLANTS : Ms. Malini Chakraborty, Advocate. FOR THE RESPONDENT : Sri. Barun Prosad, Advocate. -ORDER- S. Majumder, Member.
This appeal has arisen against the judgment passed by the Ld. District Forum, 24-Parganas (North), on 04.03.2009, in its case no-108/2005, wherein the Forum below allowing the complaint in favour of the Complainant has directed the OP-1-Hospital to an amount of Rs.50,000/- and the OP-2-Doctor to pay a sum of Rs.20,000/- to the Complainant as compensation and the Forum has further directed the OPs to pay a sum of Rs.1000/- each towards cost to the Complainant.
The brief facts of the case of the Complainant before the Forum below were that the father of the Complainant was taken to the OP-2-Doctor attached to the OP-1-Hospital on 29.11.2003 for examination in view of acute pain in the abdomen since 04.11.2003. As per advice of the OP-2 the patient (father of the Complainant) was admitted in the OP-1-Hospital on 03.12.2003. Various investigations like USG, LFT, ERCP etc were done. Having seen the USG report the Doctor advised for operation of Cholecystectomy and Choledtocholichotomy by open surgery. The Complainant got the patient discharged from the OP-1 on request for obtaining opinion of other doctors as to whether micro surgery could be undertaken. At the time of discharge it was advised by the OP-1 that the patient was to be re-admitted on 15.12.2003 for undergoing ERCP test on 16.12.2003. Consultation with other doctors revealed that laproscopic surgery was not possible. The patient was readmitted on 15.12.2003 and ERCP test was done on the next day. Cholecystectomy and Choleditcholithoctomy were done by the OP-2 on 18.12.2003. In course of the operation specimen of gallbladder was taken for Histopathological Examination. On 31.12.2003 the patient was discharged by the OP nos-1 and 2 with an assurance that the patient would recover very soon and gave advice to attend Dermatology OPD on 05.01.2004 at 3.00 p.m. for review and also to attend surgical OPD on the same day. The patient was accordingly taken to the OP-1 Hospital on 05.01.2004 on which day the patient was examined by one Dr. Sabitha who advised the patient to attend again on 12.01.2004 for further review. On 12.01.2004 another doctor who told the Complainant that everything was all right saw the patient in the said Hospital and there was no necessity to come again. After that the patient spent about a year more or less normally, apart from of course some minor complications. Thereafter the patient faced the same problem again and was then taken to the OP-2 who ignored the complications of the patient and did not take any care of the problem.
The complications aggravated day by day and the patient was taken to one Dr. Tapas Banerjee, who upon examination advised for some investigations like urine culture, USG of whole abdomen and having considered the reports suspected that of the patients suffering from Cancer. The patient was thereafter taken to Dr. Dipankar Roy, who also advised for some tests and having gone through those reports expressed his suspicion as to the incidence of Cancer and wanted the Histopathological report which had been done by the Hospital just after the operation. But such Histopathological report could not be submitted, as it was not made over to the patient party at the time of discharge from the OP-1-Hospital. The report of the said examination was also not mentioned in the discharge certificate issued by the OP-1 and finding no other way Dr.Roy ultimately advised for CECT (abdomen) and FNAC Biopsy from the Lever Lesion.
Thereafter the patient was taken to Dr. D. Goutam, consultant surgeon and cancer specialist, who after going through the various reports expressed his opinion as to the patients suffering from Cancer and wanted to see the Histopathological report with a view to assess the stage of the said ailment. Then the Complainant approached to the OPs for obtaining the Histopathological report of 2003, but they deferred the matter on different pretexts. The patient was taken to another Oncologist, Dr. Sanjoy Das, who also asked the Complainant to collect the said report from the OP-1. After several persuasions the OPs made over a duplicate report. Following consultation with Dr. D. Goutam together with said duplicate report it could be learnt on 10.04.2005 that in the year 2003 while the patient was taken to the OP-1 and 2, Carcinoma was in preliminary stage, which was totally suppressed by the OPs. Ultimately the patient died on 20.04.2005. Had the result of the report been known to the patient party, steps could have been taken for availing of advanced treatment from the Cancer Hospitals and the span of life could have been extended. Alleging deficiency in service on the part of the OPs in not mentioning the incidence of cancer in the discharge certificate and not making over the Histopathological report to the patient party at the time of discharge, the Complainant filed the complaint before the District Forum praying for direction upon the OPs to pay her a sum of Rs.17,00,000/- towards compensation and the Complainant has also prayed for taking penal action against the OPs.
Being aggrieved by the aforementioned judgment the OPs-Appellant have preferred this appeal contending that at the time of discharge the patient was advised to follow the advice as specified in the said certificate i.e. to attend dermatology OPD on 05.01.2004 as well as to the surgery OPD on the same day and it was post-operative instructions given by the Appellant-2, but the records reveal that the patient only attended at the Dermatology OPD and consulted with Dr. Sabitha, the patient neither attended the Surgery OPD nor consulted the OP-2 for the purpose of further check up and scrutiny of the report. On 05.01.2004 the patient was advised to come on 12.01.2004 for further review, but he did not visit on that day or any other subsequent day. Such attitude of the patient and the patient party had led to the cause of damage and it was the sole cause of the peril. The Appellants have stated in the memorandum of appeal that the ld. Forum has erred to look into the fact that there was no concrete evidence that the patient party approached before the Hospital Authority even for once for obtaining the Histopathology report and hence it is evident from the aforesaid that the alleged Histopathology report had been delivered to them at the time of discharge. It has been contended by the Appellants that if the patient party had attended the doctor as well as the hospital as per instructions, the presence of carcinoma would have been revealed on 05.01.2004 and the patient may have opted for the appropriate treatments for cancer. It has been mentioned by the appellants that the Histopathlogy report was handed over to the Complainant by the Appellant-1 at the time of discharge on 31.12.2003 and the patient and the Respondent received it keeping endorsement on it. The Appellants have mentioned that the Forum below has failed to consider that the item no-7 of the Annexure A was the Histopathology report but it was termed as I report, which means investigation report. The patient was discharged with specific directions made on the discharge certificate, but the patient party failed to follow the said instructions. So liability cannot be cast upon the Appellants. The Appellants have stated that the Complainant has intentionally suppressed the fact that the Histopathology report was not given by the appellant-1 at the time of discharge with ulterior motive. According to the Appellants the judgment passed by the District Forum is illegal, improper and liable to be set aside and the Appellants have prayed for allowing the present appeal.
For adjudication of this appeal we have called for the LCR from the District Forum.
On careful consideration of the record, various documents and the LCR it is seen by us that this is not a case of medical negligence as the Complainant has not made allegation regarding the treatment provided by the doctor within the four corners of the petition of complaint. The allegations of the Complainant were that the Histopathological report indicating the incidence of carcinoma was not made over the patient party by the Respondent-OP-1-Hospital at the time of discharge and there was no mentioning of such report as well as the incidence of carcinoma in the discharge certificate issued by the Appellant-1. We have perused the Xerox copy of the Histopathological report dated 24.12.2003 where opinion expressed under the head Micro as Multiple sections from gall bladder show intramucosal carcinoma. There are also occasional lymphatic tumor emboli seen in the serous coat. Before the Forum below the OPs did not dispute the Histopathological report indicating the incidence of carcinoma and nowhere in the written version filed by the OPs disputed the said report as well as the OPs have admitted that the department of pathology of the OP-1 furnished the said report. the OPs have also accepted that the said Xerox copy of the Histopathological report is a copy of the original one, but never produced the original report which is lying with them. In the evidence on affidavit the Complainant has mentioned that the Histopathological report was not mentioned in the discharge certificate and virtually the said report was not delivered to her. In the written version the pleading of the OPs was that the Histopathological report was handed over to the patient party and the patient as well as the Complainant received the discharge certificate by putting their signatures where it has been mentioned at the item no-7 as I report, which means the investigation report and the patient party has received entire investigation reports at the time of discharge. But we have noticed that the OPs before the Forum below did not file any evidence and have failed to produce any documents to show that the Histopathological report was actually handed over the patient party on 31.12.2003, moreover the written version filed by the OPs was not on affidavit, simply verified. Therefore it does not carry any legal value. Before the Forum below no statement has been made by the OPs on affidavit, therefore the contentions as advanced by the OPs cannot be accepted in the eye of law. Whereas the complaint has been filed on affidavit and the Complainant also filed evidence on affidavit. As there was no evidence on behalf of the OPs the evidence of the Complainant is in force. After filing verified written version the OPs did not take any step for filing evidence. In the grounds of memo of appeal it has not been stated by the Appellants that the cause to failure in taking proper steps to contest the complaint. We have noticed that the Appellants did not challenge the allegation of the Complainant that the discharge certificate did not contain the result of the Histopathological report. The Forum has relied upon the Xerox copy of the discharge certificate, as the OPs did not produce the original one maintained at their end. In the discharge certificate we do not find the mention of such Histopathological report indicating the incidence of carcinoma. We have also noticed that it is true that the patient and the Complainant by putting their signatures received the discharge certificate, but not the Histopathological report. I report has not been clarified by the OP-1 in the discharge certificate. The OPs did not also adduce any evidence in this context. So the OPs have miserably failed to prove that Histopathological report was actually made over to the patient or the patient party at the time of discharge on 31.12.2003. We do not find out any justification for adopting the said procedure as adopted by the Hospital and the Hospital authority was under obligation to mention the report of the Histopathological examination in the discharge certificate and it was the duty of the Hospital to hand over the said report to the patient party at the time of discharge. As the OP-1 has violated the usual course in handing over the investigation report of the patient to the patient party at the time of his discharge, such action or non-performance of such obligations would tantamount to deficiency in providing necessary service to the patient by the Appellant-1. The Appellants have mentioned that due to negligence on behalf of the patient party damage has been occurred and they were the sole cause of the peril, as the patient party did not bother to follow the instruction as specified in the discharge certificate. After discharge the patient did not visit the operating doctor subsequently. But we have noticed that the Appellants have failed to produce any evidence in support of their contentions. The OPs have failed to prove by producing cogent evidence that the allegations of the Complainant are false and fabricated. On perusal of the discharge certificate it is evident that the patient was advised to visit the dermatology OPD and surgical OPD on 05.01.2004, but from such averment we cannot draw the conclusion that the advice for attending the said OPD (surgical OPD) was for review of the positive finding of the Histopathological report. Such omission on the part of the OP-1 in mentioning the positive report of the Histopathological examination and also to furnish the report to the patient at the time of discharge has to be attributed to be the sole cause for the patient partys being deprived of availing the treatment for cancer more than a year. In our view the Complainant has successfully proved the deficiency in service on the part of the appellant-1-Hospital by adducing cogent documents. In respect of the OP-2-Doctor the Forum has held deficiency in service on his part and we are at one with the Forum below as during the course of treatment under the OP-2, nowhere it has been mentioned by him to the patient party that the patient was suffering from preliminary stage of carcinoma, on the contrary he suppressed the disease to the patient party and in this way he took positive role to aggravate the disease. After operation routine biopsy was performed and at that point of time malignancy was detected and the doctor has failed to disclose the same to the patient party. Such attitude and negligence of the doctor cannot be supported in the eye of settled ethics of medical science. For such omission on his part he must be held responsible for deficiency in service. The Ld Counsel for the Appellant has relied on some judgments i.e. Kishore Lal vs. Chairman, Employees State Insurance Corporation reported in 2007 (4) SC 775, Dr. Shyam Sundar Sharma vs. Atar Singh & another, reported in 2009 (2) CPR 356 (NC), Master Nitish Shetthy & others vs. Naresh Trehan & others, reported in 2009 (2) CPR 285 (NC), M/s. Upasana Hospital & another Vs. S. Farook, reported in 2007 (2) CPR 145 (NC). But these judgments do not help the Appellants contention as the present Appellants being the OPs before the Forum below has failed to prove the allegations of the Complainant as false by adducing cogent evidence and moreover the written version was not on affidavit. Therefore no pleading was made on affidavit against the complaint, which was on affidavit. Some citations have been filed where it has been held that without expert opinion from the doctor case alleging medical negligence cannot be adjudicated. But the treating doctor and essential service provided by the Hospital do not relate the instant case with the negligence in providing treatment towards the patient. This case relates to non-supply of the Histopathological report to the patient party and concealment of the information to the patient party that the patient was suffering from carcinoma, which ultimately caused to death due to want of treatment for cancer for a prolonged period and during this period carcinoma aggravated and ultimately the Complainant lost his father for ever. In our opinion such action on the part of the Appellant nos-1 and 2 is a glaring example of deficiency in service. As the Complainant did not make any allegation against the OP-3, along with the Forum below we are not inclined to pass any adverse order against the OP-3 and thus the OP-3 is not entitled to pay any compensation to the Complainant. The complaint is therefore dismissed against the OP-3.
Going by the foregoing discussion we are of the opinion that as the judgment of the Forum below does not suffer from any infirmity, we are not inclined to interfere in it. But filing this appeal the Appellants tried to harass the Respondent for a further period as it was within the knowledge of the Appellants that as they failed to adduce any evidence, the allegations made by the Complainant is still remain in force. Nothing has been filed to contradict the allegations of the Complainant. So for such further harassment the Appellants are liable to pay further cost of Rs.2,000/- either jointly or severally. We are to say only that the Forum below has not mentioned the time limit within which the OPs were bound to pay the amounts towards cost and compensation. In this context we are to say clearly that the present Appellants shall pay the amounts towards cost and compensation to the Respondent-Complainant within a period of 45 days from the date of this judgment, failing which the total amount (Rs.51,000/-+Rs.21,000/-+Rs.2,000/-)=Rs.74,000/- shall carry interest @10% p.a. for the default period. Hence, it is ordered that the appeal be dismissed on contest with cost of Rs.2,000/-. The judgment passed by the Forum below is hereby affirmed with some modification. The office is directed to send down the LCR and the copy of this judgment to the Forum below and issue the same upon the recorded Advocates/Parties free of cost forthwith.
(S.Majumder) I have perused the judgment passed by Mrs. S. Majumder, The Ld. Lady Member. While agreeing with the conclusion reached in the said judgment I feel my views on certain aspects should be recorded. The OPs/Appellants strongly relied on Annexure-A to the Memorandum of Appeal for contending that item 7 of the reports given to the patient party on 31.12.2003, is the Histopathological report. It is further contended by the Appellants that the same is actually recorded as I Report-I and it means investigation report, which is actually the Histopathlogical Report.
It is true that Annexure-A is a document not disputed by the Complainant/Respondent and she has also failed to show what was actually the said I Report was. Had a copy of the said I Report been produced by the Complainant, the same would have cleared the position. But the Complainant not having done so the matter requires further consideration. Undoubetedly a copy of Histopathological Report described as a duplicate copy was handed over to the Complainant subsequently. The copy of the said report is also annexed to the Memorandum of Appeal. The said document does not indicate anywhere that it has been described as investigation Report. In such circumstance it is difficult to hold that a copy of the said Histopathological Report was described as I Report-I as there is no reason for describing the said I Report with qualifying description I. But admittedly the Discharge summary does not refer to the said Histopathlogical Report and the diagnosis recorded therein. The Histopathological Report clearly mentions multiple sections from gallbladder show intramucosal carcinoma. Therefore, such serious diagnosis should have found place in the discharge summary. The OPs did not claim that the patient or the patient party was ever informed of the said diagnosis.
The contention of the OPs/Appellants that the patient did not report according to the direction contained in the discharge summary also does not appear to be correct. The Complainant made clear case that the patient visited the concerned department as was directed on the date fixed i.e. on 05.01.2004. This has not been disputed by the OPs/Appellants. With regard to the subsequent visit on 12.01.2004 there is some dispute. But admittedly the case of the OPs/Appellants that they could not get opportunity to tell the patient about diagnosis of carcinoma, as the patient did not visit after discharge, has been proved to be incorrect. On 05.01.2004 Dr. Saha-OP-2 was not available and some other doctor attended the patient and the OP did not make out a case that any step was taken with regard to the said disease as diagnosed by Histopathlogical Report.
Therefore, it has not been proved by the OPs/Appellants that diagnosis and disease carcinoma was disclosed and there was no treatment for long period for the said disease and, therefore, deficiency in service and medical negligence on the part of the OPs/Appellants become apparent. No experts opinion is required in respect of such findings.
The next contention that Proforma Opposite Party is not an Expert is not relevant in view of the findings recorded herein above.
The Appellants have not made the OP-3 a party in the Memorandum of Appeal. But as the appeal is being dismissed no further order to add OP-3 as a party is required.
(A.K. Ray) (Justice. A. Chakrabarti) MEMBER PRESIDENT