State Consumer Disputes Redressal Commission
Dr. Pawan Kr. Agarwal, Kolkata-27 vs Sri V. S. Tiwari, Kolkata-8 on 26 September, 2012
DRAFT State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.FA/106/2012 (Arising out of order dated 15/02/12 in Case No.293/2009 of District Consumer Disputes Redressal Forum, Kolkata-I) DATE OF FILING:16/03/12 DATE OF FINAL ORDER:26/09/12 APPELLANTS : 1) Dr. Pawan Kumar Agarwal Calcutta Medical Research Insitute 7/2, Diamond Harbour Road Kolkata-700 027 2) Calcutta Medical Research Insitute 7/2, Diamond Harbour Road Kolkata-700 027 RESPONDENT : Sri V. S. Tiwari S/o-Late K. N. Tiwari 39C, Birendra Roy Road West Thakurpukur Kolkata-700 008 BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANTS : Mr. A. K. Sil Ld. Advocate FOR THE RESPONDENT : In person : O R D E R :
No.4/26.09.12 HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT
1. This appeal is directed against the judgment and order passed by the Learned District Forum, Kolkata, Unit-I in Case No.293/2009 allowing thereby the complaint and directing the OP No.1 to refund the sum of Rs.30,936/- together with interest @ 9% per annum till the date of realization. The OP No.1 and 2 have also been directed jointly and severally to pay Rs.12 lakh to the complainant towards compensation for harassment, mental agony and litigation cost of Rs.1,000/- within 45 days from the date of communication of the order in default an interest @ 9% per annum shall accrue on the entire amount till realization.
2. The case of the complainant/respondent, in short, is that his son Atul Tiwari aged about 20 years had been suffering from muscular dystrophy from the age of six years.
Gradually he lost strength and could not work properly and had to take recourse to wheel chair. For a couple of days he had been suffering from cough and cold and as per the advice of the family physician the complainant took his son to CMRI Hospital. Accordingly, the complainant brought his son to CMRI on 16/01/09 at about 11.20 p.m. and the patient was taken to the emergency room. At the time of admission, the blood pressure was 80/60 and he was allotted R. No.725 in the 7th floor. The patient was shifted to R. No.725 and at about 11.45 p.m. the OPs applied nebulization. After a few minutes of administering oxygen the patient became completely normal and talking pleasantly. The BP was then 130/80 and the patient by this time was quite normal. In the mean time a junior doctor came and told the complainant that the patient would be shifted to ICU bed no.10 as per the instruction of the Senior Dr. Pawan Agarwal (OP No.2) over telephone from his residence because of the patients muscular dystrophy disease. At about 12.15 p.m. the complainant most reluctantly conceded to their proposal. The complainant expectedly was waiting for the attendance and the presence of Dr. Pawan Agarwal under whom the patient was admitted. Dr. Pawan Agarwal did never arrive at the most critical and crucial period of the patient. At about 12.40 a.m. the complainant requested the OPs to allow him to remain present at the ICU, but it was refused. For the period from 12.30 a.m. to 5.30 a.m. the OPs did not bother to inform the patient party about the condition and status of the patient. At about 5.30 a.m. the OPs called him for the first time over the cell phone to see the patient immediately at the ICU at 7th floor. At about 5.40 a.m. on 17/01/09 the OPs informed the complainant that the heart of the patient suddenly stopped and the patient was kept on ventilation. Dr. Pawan Agarwal, OP No.2 visited the patient at about 5.30 a.m. It has been alleged that the patient died most probably by or before 5.30 a.m., but they did not think it necessary to inform the complainant accordingly and continued to show ventilation for another day only for making and squeezing money. Although the OP No.2 was informed as per the hospital papers at regular intervals, but the condition of the patient was deteriorating and the OP No.2 did not bother to pay visit during the most crucial time ignoring the medical ethics and human appeal. By not attending the patient at the critical juncture, there was deficiency in service on the part of the OP No.2. It has been alleged that not ensuring the attendance of the doctor at the crisis period and not arranging any alternative senior doctor in emergency and not informing the patient party of the critical condition, there was deficiency in service on the part of the CMRI authority. The OPs extended the stay of the deceased patient for a full day unnecessarily although he expired at about 5.30 a.m. on 17th. It was done only for making money which was unfair trade practice. For the said reasons, the complaint was instituted before the Learned District Forum.
3. The OP No.1 filed W.V. denying all the material allegations raised in the complaint. It has been stated that necessary treatment was given to the patient with utmost care and skill by the OPs. There is no specific averment of negligence or deficiency in service on the part of the OP No.1 anywhere in the petition of complaint. The OP No.2 Dr. Pawan Agarwal is not an employee of the OP No.1. Dr. Agarwal is a consultant physician who practises individually being attached to many other hospitals and clinics. The OP No.1 hospital is not vicariously liable for any alleged act of the OP No.2.
4. The OP No.2 Dr. Pawan Agarwal has filed W.V. denying all the material allegations raised in the complaint. It has been stated that by order no.9 dated 28/04/10 the Learned District Forum referred the matter to the panel of doctors under supervision of the Superintendent of S.S.K.M. Hospital for obtaining expert opinion. Accordingly, the Medical Superintendent-cum-Vice Principal by his letter dated 23/08/10 forwarded the opinion of the expert body wherein it was opined that the patient was properly treated. In view of the said opinion the complainant has no case against the OP No.2 and the complaint should be dismissed. Apart from the OP No.2 the other doctors also treated the patient but they have not been impleaded in the complaint and, as such, the complaint was bad for non-joinder of necessary parties. The complainant being the father of Late Atul Tiwari is not the legal representative under the provisions of Hindu Succession Act and, as such, the complaint is not maintainable. The patient was admitted at about 11.26 p.m. on 16/01/09 in the Emergency Department of the OP No.1 and he was examined by Dr. Pinaki Saha, the Medical Officer on duty in the Emergency Department who admitted the patient with the diagnosis of Respiratory Tract Infection of a background of Pseudohypertrophic Muscular Dystrophy. After admission the patient was examined by Dr. Jahar Dutta Choudhury. At about 11.45 p.m. on 16/01/09 Dr. Jahar Dutta Choudhury informed the OP No.2 over phone that the patient had been admitted under OP No.2. The OP No.2 was also informed about the clinical condition with the history given by the father of the patient. The OP No.2 advised a management plan consisting of oxygen inhalation, propped up position, I.V. fluids, I.V. Antibiotics, nebulisation and routine haematological, bio-chemical, radiological investigations and ECG. The complainant gave the consent for transfer of the patient to ICU. After the patient was shifted to ICU he was examined by Dr. Anil Roy who after examining the patient reported to OP No.2 over phone the condition of the patient.
The OP No.2 advised for additional I.V. Antibiotics and to conduct an Arterial Blood Gas analysis. The result thereof was communicated to OP No.2 over phone at about 1.30 a.m. on 17/01/09. Non-Invasive Ventilation was recommended with an advice to intubate the patient if the clinical condition deteriorated. By 3 a.m. of 17/01/09 the OP No.2 was informed by Dr. Anil Roy over phone that the patients condition had improved marginally. At 4.30 a.m. it was informed that the condition of the patient was as before.
Thereafter the patient unfortunately suffered cardiac arrest at 5 a.m. on 17/01/09 without any prior warning.
Cardio-respiratory resuscitation was started and he was intubated and ventilated. The OP No.2 was informed of this event and immediately he rushed to the hospital and reached there within 20/25 minutes. The OP No.2 along with Dr. Anil Roy continued the resuscitation.
The OP No.2 thereafter examined the patient on 17/01/09 at 9.30 a.m. The condition of the patient was continuing to be critical and the prognosis was very poor.
The OP No.2 extended the necessary treatment at that time by increasing the Inotropic Support. At 10.30 a.m. the patient was examined by Dr. S. Mukherjee, ICU in-charge of OP No.1 and he extended necessary treatment. At 7.15 p.m. on 17/01/09 OP No.2 again examined the patient and found that he was not responding at all to the treatment and this condition of the patient was made known to the complainant. On 18/01/09 the OP No.2 examined the patient at about 9.30 a.m., but the condition of the patient was very grave and he was not responding to the treatment. At about 9.45 a.m. on 18/01/09 the patient suffered another cardio respiratory arrest which was attended and treated by doctors attached to ICU of the OP No.1 and the patient expired at about 9.55 a.m. At no point of time prior to 5.30 a.m. of 17/01/09 any of the doctors required the presence of OP No.2 in the ICU due to any emergency. It has been stated that had the OP No.2 been personally present at the time of admission of the patient or thereafter looking at the clinical condition of the patient he would have given the same treatment as had been given in the present case.
5. The Learned Counsel for the appellant has submitted that the consent form was signed by the father of the patient and the patient was shifted to ICU for better management. It is contended that there are several doctors in the ICU who examined the patient and extended necessary treatment after obtaining instruction from Dr. Agarwal. It is submitted that on 17/01/09 at 5 a.m. the patient suffered cardiac arrest and thereafter all the necessary treatment was given by Dr. Agarwal and other doctors.
It is submitted that there was signature of Dr. Agarwal and other doctors in the treatment sheet. It is contended that the treatment was properly done.
It has been submitted that as per the expert opinion there was no negligence on the part of the appellant.
It is contended that the mere physical absence of Dr. Agarwal at about 5 a.m. cannot be said to be the cause of death.
It is submitted that the complainant being a Hindu and not being the class-I heir, has no locus standi to file this complaint. It is contended that there was no deficiency as per the expert opinion.
The Learned Counsel for the appellant submits that there is no basis of awarding compensation/refund of Rs.30,000/-. It is contended that the burden lies on the complainant to prove his case. The Learned Counsel has referred to the decisions reported in IV (2011) CPJ 414 (NC) [Kunal Saha (Dr.) Vs. Sukumar Mukherjee & Ors.]; III (2005) CPJ 56(NC) [Sheela Hirba Naik Gaunekar Vs. Apollo Hospitals Ltd. Chennai & Anr.]; 2010-(001)-CPJ-0029-SC [Kusum Sharma & Ors. vs. Batra Hospital & Medical Research Centre & Ors.]; 2009-(002)-CPJ-0018-SC [Ms. INS. Malhotra Vs. Dr. A. Kriplani & Ors.]; (2009) 6 SCC 121 [Sarla Verma (Smt. & Ors. Vs. Delhi Transport Corporation & Anr.]; (2000) 1 SCC 66 [Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & Anr.].
6. The respondent in person has submitted that his son aged about 20 years was a good student and he was admitted in the emergency section. It has been submitted that after administering nebulisation the patient was all right and there was no necessity to shift the patient to ICU. It has been submitted that there is no mention in the bed head ticket as to what instructions were given by Dr. Agarwal.
It has been submitted that the complainant was never informed of the mode of treatment and had the complainant been informed of the critical condition of the patient, he could have shifted the patient to any other hospital.
7. We have heard the submission made by both sides and also perused the evidence on record. It is the contention of the Learned Counsel for the appellant that the complainant being the father of the deceased patient is not a class-I heir under Hindu Succession Act, as such, he has no locus standi to file the complaint.
In this connection we find that the complainant took his son to the CMRI Hospital and got him admitted there for treatment.
Therefore, the complainant hired the services of the OPs for the treatment of his son. Under such circumstances, the complainant has the locus standi to file the complaint. The complainant, therefore, is a consumer within the meaning of Section 2(1)(d)(ii).
The petition of complaint is, therefore, maintainable.
8. It is the case of the complainant/respondent that after admission of the patient at about 11.20 p.m. and after nebulisation being administered, the condition of the patient was all right and, as such, there was no necessity to shift the patient to ICU and that he was not informed of the critical condition of the patient. It appears from the case history form that on 16/01/09 at about 12.15 a.m. the consent was obtained for shifting the patient to ICU for better management. The complainant signed thereon. At 11.45 p.m. Dr. Agarwal was informed over phone and advice was sought for. Details of treatment were not noted. It further appears that at the ICU Dr. Anil Roy examined the patient from time to time and sought for the advice of Dr. Agarwal. The details of treatment done were noted. On 17/01/09 at 4.30 a.m. it was noted that the father of the patient was explained the poor prognosis and that at 5 a.m. there was sudden cardiac arrest. The condition of the patient was noted from time to time. Details of medicines given and steps taken have been noted in the treatment sheet. On 18/01/09 the patient again suffered a cardiac arrest in the morning and ultimately he expired. From the treatment sheet it is clear that the patient was attended by different doctors in the ICU from time to time. The Body of Expert has expressed its opinion that ideally absence of Dr. Pawan Agarwal should not have hampered the treatment of the patient in ICU on 16th night till 17th morning as ICU management is generally a team work.
The Expert Committee has further opined that the allegation that the patient was kept on ventilation after death for extorting money does not hold good; it is not prudent to say that the patient was not properly treated at ICU as per BHT records available.
9. The evidence of OP No.2 shows that Dr. Agarwal signed the BHT on 17/01/09 at 5.45 a.m. Dr. Agarwal in Para 26 of his evidence has stated that the patient was shifted to ICU on 17/01/09 and he was attended by experienced doctors such as Dr. Anil Roy, Dr. S. Mukherjee and others, such doctors extended the necessary treatment after the patient was admitted in the mid-night of 16/01/09 till he had the cardiac arrest next morning and thereafter; during such period on several occasions he was consulted over phone about the clinical condition of the patient and, accordingly, he extended necessary treatment; at no point of time prior to 5.30 a.m. of 17/01/09 any of such doctors required his presence in ICU due to any emergency. He has further stated that had he been personally present at the time of admission of the patient or thereafter looking at the clinical condition of the patient he would have given the same treatment as has been given in the present case. In Para 20 of his evidence he has stated that at about 5 a.m. on 17/01/09 the patient had a sudden cardiac arrest without any prior warning and he was informed of this event and he immediately rushed to the hospital; he along with Dr. Anil Roy continued the resuscitation. In the decision reported in Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors. reported in 2010 (001) CPJ 0029 (SC) it has been held by the Honble Apex Court as follows:
.. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
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.
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.
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.
It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
10. From the evidence on record it is clear that after admission of the patient he was shifted to ICU for better management. It is also clear that the ICU doctors talked to Dr. Agarwal over phone and upon receiving the advice extended necessary treatment, the details of which have been noted in the bed head ticket. It cannot be said that there was lack of reasonable care and skill.
Mere absence of Dr. Agarwal at the time of first cardiac arrest at about 5 a.m. cannot be said to be the cause of death nor can it be said to be the lack of reasonable care and skill. It cannot be said that had Dr. Agarwal been present at the time of cardiac arrest, death could have been averted, especially when Dr. Agarwal has categorically stated that had he been present at that time he would have given the same treatment as has been given by the other doctors.
11. In the decision reported in 2012 (2) CPR 372 (NC) [Baljinder Singh Vs. National Insurance Company Ltd. & Ors.] it has been held by the Honble National Commission that medical negligence cannot be presumed and has to be proved by the complainant. In view of the circumstances aforesaid, we are of the considered view that there was no negligence or deficiency in service on the part of the appellants. The complainant/respondent has failed to prove his case and he is not entitled to get any relief.
12. In the result, the appeal succeeds and the same stands allowed. We set aside the impugned judgment and order. The petition of complaint is dismissed.
There will be no order as to costs.
MEMBER(SC) MEMBER(L) PRESIDENT