National Consumer Disputes Redressal
Sudipta Chakrobarty & Anr. vs Ranaghat Sd Hospital & 7 Ors. on 20 December, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 671 OF 2019 1. SUDIPTA CHAKROBARTY & ANR. ...........Complainant(s) Versus 1. RANAGHAT SD HOSPITAL & 7 ORS. ...........Opp.Party(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Complainant : Mr. T.V. George, Advocate For the Opp.Party :
Dated : 20 Dec 2019 ORDER
Pronounced on: 20th December 2019
ORDER
PER DR. S. M. KANTIKAR, PRESIDING MEMBER
1. The instant Complaint has been filed against 8 Opposite Parties, of which 5 are government hospitals and 3 are doctors working therein, for alleged medical negligence causing the death of Mrs. Snigdha Chakrobarty, aged about 62 years (hereinafter referred to as the 'patient').
The Complainant No. 1, Mr. Sudipta Chakrobarty, is the son, and the Complainant No. 2, Mr. Subodh Gobinda Chakrobarty, is the husband, of the deceased patient.
The O.P. Nos. 1 to 4 and No. 8 are hospitals functioning under the state government and the O.P. Nos. 5 to 7 are doctors working therein.
2. We perused the entire material on record including inter alia the Complaint, the medical record annexed therewith and an expert opinion also annexed therewith.
We heard at length the arguments of learned Counsel for the Complainants on admission.
3. We note that the Complaint is somewhat nebulously and incoherently articulated. There is mismatch in the chronological material facts as averred in the Complaint and as discernible from the medical record annexed therewith.
4. That being as it is, the chronology, as discernible from the medical record, is as below:
On 05.04.2017 at 03:00 hours the patient was admitted in O.P. No. 1 hospital (Ranaghat SD Hospital).
On 05.04.2017 itself she was referred to O.P. No. 2 hospital (JNM Hospital), where she was admitted at 13:42 hours.
On 06.04.2017 she was referred to O.P. No. 3 hospital (Gandhi Memorial Hospital), where she was admitted at 14:05 hours, and was under treatment upto 12.04.2017.
On 12.04.2017 she was referred to Emergency Room (ER) of any State Medical College Hospital in Kolkata.
The patient went to IPGMER & SSKM Hospital, Kolkata, a Medical College Hospital (which has not been made an opposite party in the Complaint), where she could not find vacant bed and was referred to O.P. No. 4 hospital (SNP Hospital), where she was under treatment from 12.04.2017 to 25.04.2017. She was discharged LAMA (left against medical advice) at 14:30 hours on 25.04.2017 from O.P. No. 4 hospital.
The patient then (again) went to O.P. No. 2 hospital (JNM Hospital) on the same day, where she was referred to any teaching hospital.
On 26.04.2017 at 18:10 hours she was admitted in O.P. No. 8 hospital (NRS Medical College & Hospital, Kolkata), where she remained under treatment upto her demise on 02.05.2017.
5. From the Synopsis and the Complaint filed by the Complainants we could gather the following chronological allegations and averments:
The allegations made in the Complaint are that the patient, about 62 years, a home-maker, got severe pain in her chest (probably heart attack) on 05.04.2017 and was taken to the O.P. No. 1 hospital at around midnight and admitted in the general female ward. Then, at around 1 a.m., she was taken to the emergency room. Only ECG was done, but echocardiography (ECHO) and X-ray chest were not done. The blood investigations, though advised, were not done. At about 4 a.m. she was referred to the High Dependency Unit (HDU) of the same hospital (O.P. No. 1) as she developed symptoms of shortness of breath and rhonchi. Her both feet and whole body were swollen (anasarca). She was diagnosed as Chronic Renal Failure (CRF) with Left Ventricular Failure (LVF). Some medicines and injection Human insulin (sliding scale) were started. She was advised for some blood investigations. The Trop- T test done at 4.20 am was reported to be "Negative".
The patient was referred to O.P. No.2 hospital where she underwent certain blood tests for Total Count (TC), Different Count (DC), Erythrocyte Sedimentation Rate (ESR) and Lipid Profile. The time of the blood tests and its values were not mentioned in the progress note of 06.04.2017. Therefore a strong suspicion arises whether blood tests were actually done at O.P. No. 2 hospital before referring her to O.P. No. 3 hospital.
No rubber stamp of O.P. No. 3 hospital was put anywhere in the record. The patient remained at O.P. No. 3 hospital under the care of Dr. S.K. Maithy (O.P. No. 7) but her condition was deteriorating. The lab reports done on 09.04.2017 have been incorporated in the progress note / treatment sheet dated 10.04.2017 but timings are not mentioned therein, also the attending doctor on 10.04.2017 did not prescribe medicines to control raised values of ESR, total serum cholesterol, blood sugar (random), urea and serum creatinine. Nephrologist was not called at OP No. 3 hospital despite high values of urea and creatinine. On 12.04.2017 the patient was referred by O.P. No. 3 hospital to the Emergency Room (E.R.) of any Medical College Hospital in Kolkata without specifying the name of the hospital where treatment for IHD, CRF, LVF was available. Ambulance facility was not provided by OP No. 3 hospital.
Therefore at around 10.30 a.m. ambulance was hired by the Complainants for IPGMER and SSKM Hospital, Kolkata, a Medical College Hospital (which has not been made an opposite party in the Complaint). However, on reaching there, admission was denied as no bed was available, therefore she was admitted to O.P. No. 4 hospital.
The patient remained in O.P. No. 4 hospital from 12.04.2017 to 25.04.2017 under the care / Unit of Professor Dr. Rajendra Pandey (O.P. No. 5), but the said O.P. No. 5 doctor did not see the patient even once. The patient was left to the care under an intern, Dr. Rajib Mondal (O.P. No. 6). Even the daily clinical notes do not indicate that O.P. No. 6 doctor received any instructions / advice which were counter-signed by O.P. No. 5 doctor. The O.P. No. 6 doctor prescribed tablet Pregabin which was contra-indicated. The patient was administered saline drip of 500 ml each and about 3 litres a day for several days though the patient was suffering from high blood pressure. The patient lastly developed bed sores because of repeated admission in the O.P. hospitals which was "negligence" per se.
The IPGMER & SSKM hospital (which is not an opposite party) was one main hospital and O.P. No. 4 hospital was its branch, however the cardiologist(s) from the main hospital were not called by O.P. No. 4 hospital, but the patient was referred to another / any Medical College Hospital with discharge remark of LAMA (left against medical advice). It made it difficult for them to get the patient admitted to another hospital. On 25.04.2017 the patient was taken to O.P. No. 2 hospital, who, in turn, referred her again to O.P. No. 8 hospital. Echocardiography and Hemodialysis were not done at O.P. No. 8 hospital till 02.05.2017 i.e. till the death of patient. Dr. Debayan Dutta (who is not an opposite party), who did not see the patient even once during treatment period, issued a death certificate stating the cause of death as 'Uremic Encephalopathy in a Stage 5 CKD'.
Due to unexpected and premature death of the patient, it caused irreparable damage and emotional loss to both the Complainants.
6. Being aggrieved by the alleged negligence / deficiency, the Complaint was filed before this Commission on 22.04.2019 claiming total compensation of Rs.1,11,20000/-. Copies of the medical record and copy of an expert opinion from one Dr. Ajay Kumar Gupta, MD, MNAMS (Retired Professor of Forensic Medicine) were annexed with the Complaint.
7. There are mistakes in the narration of the chronological sequence of treatment and referral from O.P. No. 1 to O.P. No. 8 hospitals in the Complaint.
In the examination being made hereinafter we have considered the correct chronology, as evident from the medical record.
8. On thoughtful consideration, we observe as below:
General Observations on the Complaint:
i) The instant complaint was filed on 22.04.2019. The Registry of this Commission pointed out defects in the Complaint. Considering the application, being I.A. No. 6571 of 2019, filed by the learned Counsel, the matter was placed before the Bench by the Registry.
We heard the learned Counsel on admission.
ii) The cause of action arose on the date of death of the patient i.e. on 02.05.2017. The Complaint was filed on 22.04.2019 i.e. 11 days prior to the 2 year period of limitation.
The Complaint is within limitation.
iii) In their prayer, the Complainants sought total compensation of Rs. 1,11,20,000/- with interest @ 9% per annum from the date of death of the patient under the following broad heads:
a) Rs. 31,20,000/- for pecuniary loss (The deceased was a housewife and the monitory value of services to the family was counted at Rs. 20,000/- per month and her life expectancy was calculated at 75 years.)
b) Rs. 25 lakh for exemplary damages.
(For unnecessary shuttling of critically ill patient from hospital to hospital and non-attendance by senior doctor OP-5)
c) Rs. 20 lakh towards the care of Complainant no. 2, the husband of the deceased patient by a nurse (As complainant no. 2 is aged about 75 years and he is suffering from various diseases and requires full time nurse)
d) Rs. 25 lakh for loss of companion of the husband
e) Rs. 10 lakh for loss of mother of the son
f) Rs. 1 lakh towards medicines, travelling and ambulance charges.
iv) A perusal of the prayer clause in the Complaint shows that the compensation asked for under the various heads is not adequately and rationally explained. On the face of it itself, it is evident that lumpsum compensation without explaining the rationale therefor has been asked for under the various heads, and the various heads have been conjoined together to bring the Complaint within the pecuniary jurisdiction of this Commission.
v) Here we may note that there is a purpose for stipulating pecuniary jurisdiction for the various Consumer Protection Fora under the Section 11(1), the Section 17(1)(a)(i) and the Section 21(a)(i) of the Act 1986, one being that the higher Fora are not unnecessarily burdened, another being that the due examination at the different levels is duly undertaken and the higher Fora has the benefit of a reasoned order of a lower Forum in making its scrutiny when hearing appeal or revision.
vi) We are not considering the aspect of pecuniary jurisdiction as a ground for dismissing the Complaint (which relates to alleged medical negligence / deficiency that resulted in the death of the patient).
vii) The O.P. Nos. 1 to 4 and the O.P. No. 8 hospitals are functioning under the state government. The Complainants have not filed any receipts of payments made to the said O.P. hospitals. A question thus arises whether the Complainants fall within the definition of 'Consumer' within the meaning of Section 2(1)(d) of the Act 1986.
viii) We are not entering into the aspect of "Government hospitals" / "free services" etc. in the present facts and context of the instant case at the stage of arguments on admission.
Merit in the instant case:
Arguments made by learned Counsel:
i) Learned Counsel mainly reiterated and re-emphasized the allegations and averments as contained in the Complaint. He submitted that in all O.P. hospitals the patient was treated carelessly. The procedure and method of treating the cardiac patient was wrong. It was the duty of the hospitals and its treating doctors to take proper care of the patient. Timely decisions and investigations were not performed. The progress sheets did not show the details of treatment and investigations. Neither any signature/endorsement nor rubber stamp/seal of the hospital or doctor was visible in the medical records. Such acts raise suspicions on the bonafides of the hospitals and the doctors working therein. It was the recklessness and negligence on the part of the O.P.s, whereby the patient could not be treated properly for IHD, CRF, LVF, etc. The Complainants incurred huge expenditure during the treatment of the patient.
Treatment details in the O.P. hospitals:
i) A perusal of the medical record shows the following:
Treatment at O.P. No. 1 hospital [05.04.2017] (Annexure P-1) On 05.04.2017 admitted at 3 a.m. in FMW with complaints of Shortness of breath (SOB) Diagnosis : CRF - LVF (in pt of Type 2 DM) C/o SOB from 1 am, referred to HDU at 4.05 am Diagnosis : CRF with LVF, known case of Type 2 DM with nephropathy Clinical findings the treatment advised are recorded from 4.08 am as below:
O/E Chest B/L rhonchi CVS S1 S2 (N) NO H/O chest pain at present NO previous H/O Respiratory Distress Pedal Oedema Anasarka Diagnosis {CRF with LVF.
Bil Ronchi + SP O2 97% Treatment Moist O2 inhalation Foley's catheteration Bipap with O2 continuous 2 hardly off and on Nebulization with asthaline Injection frusemide Tablet Clopidogrel And human Insulin Actrapid S/C (as per scale was drawn) Renal - Low salt diet Advice :
ECG with all leads Bl Sugar ®: 356 mg/dl Sr.Na,K,HCO3,PO4 Urea ,Creatinine Echocardiography,X-ray chest PA view Trop-T Negative on 5/4/2017 at 4.20 am Progress sheets show- the patient was monitored every half hourly. Intake and output record (chart) maintained.
Treatment at O.P. No. 2 hospital [5/4/2017 to 10/4/2017] (Annexure P-2) Patient admitted at 13.42 pm with diagnosis CRF with LVF After examination and blood investigations same treatment continued.
Additionally started Inj Lasix 40 mg IV started twice a day.
Inj Enoxaparil 40 IV stat Tab Ecosprin and Aterovostatin 10 mg .
On 6/4/2017, Trop-T test was positive, Lipid profile report noted.
Same drugs continued and added Tab Sorbitrate, Telmisrtan 40 The patient was referred to Gandhi Memorial Hospital (OP-3) Treatment at O.P. No. 3 hospital [ 06.04.2017 to 12.04.2017] :
(Annexure- NOT MARKED) Patient admitted at 2.07 pm on 6/4/2017 and discharged on 12/4/2017. It is important to note that in the admission sheet it is clearly mentioned as "Trop-T positive due to CKD"
The diagnosis made was IHD/CRF/LVF (Ischemic Heart Disease/Chronic Renal Failure/Left Ventricular Failure). Trop-T was positive, acute myocardial infarction (AMI) was suspected. Blood tests for TC,DC,ESR, lipids, sugar,Urea and creatinine were done, reports are available. Doctors continued the same treatment and started one higher antibiotic inj Meropenum.
On 12/4/201 patient was discharged and referred to ER of any State MCH, Kolkata.
Patient was taken to IPGMER & SSKM Hospital, but due to non-availability of bed, she was taken to O.P.No.4 hospital.
Treatment at O.P. No. 4 hospital [ 12/4/.2017 to 25.4.2017] (Annexure-NOT MARKED) Admitted on 12/4/2017. The diagnosis put was 'Renal dysfunction, LRTI (lower respiratory tract infection) Sepsis ? ACS (acute coronary syndrome)'.
Same treatment continued, periodic lab tests performed (biochemical, hematology and urine analysis). X-ray chest (17.04.2017) and CT brain(19.04.2017) were performed. No significant findings.
On 18.04.2017 one unit of Packed RBCs (PRBC) transfused. Dressing for bed sore was done (22.04.2017) It is clearly recorded by a doctor in the progress sheet, on 25.04.2017, as "Patient relatives want to take her other hospital inspite of repeated <illegible> that patient may die on the way give LAMA" (page 88 of the paperbook) Therefore, patient was discharged LAMA on 25/4/2017 with advise ref to higher center. It is also recorded that 'All original investigation reports given to patient relatives'. (page 95 of the paperbook) Treatment at O.P. No. 8 hospital [26.04.2017 to 02.05.2017] (Annexure -NOT MARKED ) Admitted at 6.10 pm on 26.04.2017. Patient taken to Cardiac ER.
Diagnosis :Uremic encephalopathy in a patient of stage V CKD.
Patient was drowsy, disoriented. ECG and Blood investigation done, ECHO advised on 28/4/2017. High urea (213 mg%) and Creatinine (5.3.mg%), urgent hemodialysis advised, but patient was hemodynamically unstable therefore the date of HD was rescheduled to 2.5.2017. The patient's condition was informed to the relatives and the patient expired on 2.5.2017 at 2.20 am.
ii) It is clear that from the 1st day of admission (05.04.2017) in O.P. No. 1 hospital the patient was regularly examined by its doctors. The patient was under continuous monitoring every half hourly during the treatment. Periodically the relevant blood investigations like Kidney Function Tests (KFT) including serum electrolytes were done, the values were recorded in the progress sheet. The patient was referred to O.P. No. 2 hospital for ECHO and USG study. In our view, there was nothing wrong in referring the patient to O.P. No. 2 hospital. It was the decision of the doctors, in their professional wisdom, based on the availability of facilities & capabilities and the condition of the patient.
iii) On 06.04.2017, in the O.P. No. 2 hospital, the TROP- T was done, which was positive, however it was categorically mentioned on the admission sheet that "Trop-T positive due to CKD". Thus it was not a case of AMI, but it was Ischemic heart disease. The patient was treated with medicines like tablet sorbitrate, aterovostatin, aspirin, telma 40 and injection lasix, and Inj. enoxaparin (heparin- anticoagulant).
iv) We note that the entire necessary treatment for IHD, CRF and LVF was given to the patient.
v) We do not note any negligence / deficiency of the hospitals in examining, investigating, diagnosing and treating the patient.
Referral to higher centre:
i) Referring the patient to a higher centre does not amount to any deviation from the standard of practice. If a hospital does not have the facilities and / or capabilities to deal with a case, it is required and expected to provide the immediate and due medical care to the best of its ability and to timely refer the case to a higher centre. The converse could, though, in given facts, be negligence / deficiency, that is, not referring a case to a higher centre in spite of not having the facilities and / or capabilities to deal with the case.
Not calling cardiologist(s) from O.P. No. 3 hospital to O.P. No. 2 hospital:
It is alleged that instead of referring the patient from the O.P. No. 2 hospital to O.P.No.3, the doctors from the cardiology department from O.P. No. 3 hospital could have been called to the O.P. No. 2 hospital which was situated just opposite to the O.P.No.3 hospital with only a rail line intervening between the two campus. This, on the face of it itself, is absurd. Cardiologists working in a particular hospital (O.P. No. 3 hospital in this case) cannot be anyhow and anytime "called" to another "nearby" hospital (O.P. No. 2 hospital in this case). There is a system under which hospitals and doctors work.
The argument made by learned Counsel that the O.P. No. 3 hospital was "just across the railway line" and, rather than putting the patient to trouble by referring her to O.P. No. 3 hospital, cardiologist(s) from O.P. No. 3 hospital could have been "summoned", is wholly untenable.
iii) In our view, the O.P. No. 2 hospital made a correct referral O.P. No. 3 hospital. We would have taken a different view if unsystematic adhoc anyhow "summoning" of doctor(s) from a different hospital "across the railway lines" or elsewhere had been adopted. Hospital administration and management has its own systems, it should not be and cannot be disturbed or put to maladministration and mismanagement for one particular patient in the manner that the Complainants have contended in the Complaint and in the manner the learned Counsel has argued on their behalf.
iv) In the instant case, at his considered wisdom, the doctor in O. P. No. 2 hospital referred the patient to the O.P. No. 3 hospital where a team of Cardiologists to examine, do investigations, and decide the further (appropriate) management of the patient was available. Thus, allegations on this count are totally untenable.
Professor & Head in O.P. No. 4 hospital not seeing the patient personally:
i) It is alleged that the patient was taken to O.P. No. 4 hospital at Kolkata and admitted under Professor Dr. Rajender Pandey (O.P. No. 5) from 12.04.2017 till 25.04.2017, but the O.P. No. 5 doctor himself did not attend to her. This, by itself, cannot be construed as negligence / deficiency. Dr. Rajender Pandey was a Professor & Head and the patient was admitted in his Unit. There is no mandatory obligation, and neither is it feasible, for a Professor & Head to see each and every patient in his Unit, where adequate senior and junior doctors, residents, staff are available in the Unit. It cannot be contended that either Professor Dr. Rajender Pandey was negligent / deficient or that the various senior and junior doctors, residents, staff working in his Unit who were looking after the patient were negligent / deficient or that the treatment given in the Unit was wrong or below par or negligent / deficient. There is no need for a Professor & Head to "countersign" medical record prepared by doctors and nursing staff in his Unit, as has been (erroneously and irrationally) contended in the Complaint.
Comments on TROP-T test:
i) The TROP-T test was done on 05.04.2017 at 9.00 am and was found to be negative. The same test, when performed on 06.04.2017, revealed positive result and, therefore, AMI (acute myocardial infarction) was suspected and the patient was referred to O.P.No. 3 hospital.
ii) On careful perusal of medical record we have noticed that in the admission sheet of OP No. 3 hospital (page 45 of the paperbook), it was clearly mentioned that "TROP-T test positive due to CKD". The test was qualitative test (Rapid test), no quantitative analysis was made to ascertain level of Triponin. Moreover, the clinical and laboratory findings were not suggestive of AMI. Thus, the doctors at OP No. 3 treated the patient for IHD / CRF / LVF from 06.04.2017 to 10.04.2017. Thereafter, the patient was referred to ER (emergency room) of any State MCH (State Medical College Hospital) Kolkata. It is an admitted fact that the patient was suffering from CKD (grade-V) and therefore positive TROP-T test has less significance in such case. It is pertinent to also note that the patient was diagnosed as CRF with IHD (Ischemic Heart Disease). False positive TROP-T was one of the possibilities. The treatment record shows that the patient was properly treated for the cardiac ailments (IHD, LVF) also.
Only elevated troponin level alone is not a criterion to diagnose a heart condition. The patient's other symptoms, clinical examination and ECHO/ ECG have to be considered before diagnosis of AMI / ACS.
Different causes of elevated troponin levels include:
Sepsis which is a severe and potentially life-threatening reaction to an infection entering the bloodstream Kidney failure or CKD Heart failure Chemotherapy-related damage to the heart Pulmonary embolism Heart infection/myocarditis Heart damage from using recreational drugs, such as cocaine A traumatic injury to the heart, such as from a sudden, hard blow to the chest.
iii) To know about significance of TROP-T test, we gathered information from the standard books and journals on Cardiology. Accordingly we note:
Identification of patients with acute chest pain due to acute coronary syndrome is a common and difficult challenge for emergency physicians. A prospective study was conducted to assess the diagnostic value of a bedside test of cardiac troponin T in the emergency room setting.
The cause of increased Triponin in renal patients is not clear. In early studies, using first generation tests, the Triponin assay lacked specificity. It has been suggested that the older tests may cross-react with muscle proteins. The second generation tests are considered to be very specific for the cardiac muscle troponin. Troponins are specific biomarkers of myocardial injury and are implicated in the diagnosis and prognosis of patients with acute coronary syndrome. The percentage of patients seen in an emergency room that had troponin elevation but are not diagnosed with ACS. Elevated troponin levels may also result from a variety of non-coronary causes of cardiac myocyte necrosis. The presence of heterophile antibodies in the serum of the test subject may also lead to a false positive.
From the journal "Revista Espanola de Cardiologia", Volume 68, Issue 6, June 2015, pages 469-476, https://www.revespcardiol.org/en-troponin-elevation-in-patients-without-articulo-S188558571500033X Troponin Elevation in Patients without Acute Coronary Syndrome Troponins are specific markers of myocardial injury and have been used in clinical practice for more than 20 years. They were initially a marker of "unstable angina"; later they played a key role in stratification and in guiding the therapy of patients with acute coronary syndrome (ACS). The markers were subsequently included in the definition of myocardial infarction,4 and are finally becoming part of a fundamental diagnostic tool in emergency rooms as well as an important prognostic marker even in asymptomatic patients.
The main symptoms used to request troponin assays and the basic findings from physical examinations, ECGs, and laboratory workups in the emergency room. Patients with positive troponin not diagnosed with ACS were more likely to present with dyspnea and less likely to present with chest pain as the initial clinical manifestation. Moreover, their hemodynamic status in the emergency room was significantly worse because of a greater tendency to tachycardia and hypoxemia and the ECGs were less likely to show abnormalities suggestive of ischemia (ST elevation or depression, negative T waves) and more likely to reveal interventricular conduction and atrial fibrillation. The laboratory results showed worse blood glucose and creatinine levels, as well as a lower hemoglobin value.
Expert opinion annexed with the Complaint:
i) The Complaint contains bald and in parts irrational allegations against all the 8 O.P.s (5 hospitals and 3 doctors). It is accompanied by an expert opinion from one Dr. Ajay Kumar Gupta, a retired Professor of Forensic Medicine.
ii) We have failed to appreciate the bald and in parts irrational allegations contained in the Complaint, as, for example, not putting a seal (a rubber stamp) or not writing the registration number below the signature, which have been averred to be negligence / deficiency. However, the same have been endorsed as such by the expert.
iii) The expert's opinion should have been in the nature of a rational and reasoned analysis of the medical record, and he should have been qualified enough to express comments apropos the faculties / specialties in relation to which negligence / deficiency has been alleged.
iv) In his entire report, the expert has mostly reproduced the progress sheet - clinical notes and commented thereon. He has commented that the medical record was not properly maintained and the laboratory test values were entered without annexing the original copy of the report etc. He has repeatedly commented on the points of no mention of the time, and non-maintenance of details in progress sheet etc. His critique on the medical record per se is limited to being an endorsement of the allegations in the Complaint. No medical literature has been quoted or referred to. The observations made are unreasoned.
v) Notwithstanding that an expert opinion filed by any complainant would always be in support of his case, and notwithstanding that the expert endorsed even bald and in parts irrational allegations, we do not find the qualifications of the concerned expert to be such as can pass judgement on the faculties / specialties in the O.P.s Nos. 1 to 4 and No. 8 hospitals in relation to which negligence / deficiency has been alleged and we do not find the expert's report to be based on a rational and reasoned examination of the medical record per se and supported with medical literature.
vi) The expert has also opined that the doctor from O.P. No. 3 hospital for Cardiac / Heart disease could have easily come to O.P. No. 2 hospital which was situated just opposite to the O.P. No. 3 hospital. This reflects on his ignorance of hospital administration and management.
vii) In totality, we do not find it just or appropriate to place any credence on such expert report.
Findings on the merit in the case:
i) We find the entire treatment record at various hospitals to clearly show that the patient, when under the care of doctors from 05.04.2017 till the death i.e. on 02.05.2017, was treated as per standard protocol in the case of CHD and LVF with the available facilities / wherewithal available with the different hospitals. We do not note any negligence / deficiency.
9. The learned Counsel relied on the decision of Hon'ble Supreme Court in Paschim Banga Khet Mazdoor Samity and others vs. State of West Bengal and Another AIR 1996 SC 2426, wherein the Hon'ble Court held that:
the denial of emergency aid to the petitioner due to the non-availability of bed in the Government Hospital amounts to the violation of the right to life under Article 21 of the Constitution. The Court went on to say that the Constitutional obligation imposed on the State by Article 21 cannot be abdicated on the ground of financial constraint.
He also relied on another case Indian Medical Association vs. V. P. Shanta - 1995 (6) SCC 651, wherein the Hon'ble Court held that:
"the approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services."
10. The decisions of Hon'ble Supreme Court cited above do not support the Complainants in the instant case. The facts herein are entirely distinguishable. The medical record clearly shows that the doctors were qualified and competent to treat a patient of IHD, CRF and LVF. They provided emergency care, they treated the patient as per reasonable standard, from admission, to treatment, to referral, to treatment. Doctors chose the accepted method, there were no lapses or negligence or deficiency or deviation from the standard of practice.
11. Catena of judgments have discussed medical negligence. In the case of Indian Medical Association vs. V.P. Santha, the Hon'ble Apex Court has held that the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the Complainant to prove that a doctor was negligent in the line of treatment. Therefore, a doctor is guilty only when it is proved that he has fallen short of the standard of reasonable medical care. Mere allegation of negligence will be of no help to the Complainant. It has been observed that in the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. Doctors cannot be fitted into a strait jacketed formula, and cannot be penalized because they have chosen different approaches. The law could not mean to harass the doctors merely because of the treatment was unsuccessful. Therefore, we need to keep the above factors in mind while when deciding alleged medical negligence cases to avoid a disservice to the public at large.
In another decision of the Hon'ble Apex Court in the case of Jacob Mathew vs. State of Punjab, III (2005) CPJ 9 (SC), the Hon'ble Court observed that the higher the acuteness in emergency and the higher the complication, the more are the chances of error of judgment. The Hon'ble Court further observed as under:
25...... At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. 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. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice 39 prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
In subsequent paragraph 32 the Hon'ble Court observed that:
For a medical accident or failure, the responsibility may lie with the medical practitioner and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. Human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out.
The Hon'ble Supreme Court in case of Martin D'Souza V Mohd. Ishfaque I (2009) CPJ 32 SC has observed that:
49. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.
(emphasis supplied) In another case of Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634, the Hon'ble Apex Court has observed as follows:
14. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.
(emphasis supplied)
12. The judgments cited above are applicable, mutatis mutandis, herein, to infer that neither the hospitals (O.P.s No.1 to 4 and No. 8) nor the doctors working therein (O.P. No. 5 to 7) were negligent / deficient.
13. Bald and irrational allegations, like, for example, rubber stamp of hospital not being put, etc. etc., which form a prominent and substantial part of the Complaint, require no exhaustive critique.
14. Delay or error in examination, investigation, diagnosis, treatment and referral, as may show negligence / deficiency, is not visible in the entire medical record furnished with the Complaint.
15. We specifically note that all these 5 hospitals are government hospitals, which have limited wherewithal and capacities, and which cater to large volumes of patients.
Conclusions:
16. Based on the forgoing discussion and the medical record it is amply clear that, the Complainants have made bald and in parts irrational allegations against the hospitals and doctors. The patient was properly diagnosed and accordingly the treatment was given. She was referred to other hospitals for further investigations and was treated as per the standard of practice. The allegations of the Complainants are somewhat nebulous and incoherent in articulation, against hospitals and doctors working in the state government. We do not find any negligence / deficiency in the duty of care and treatment of the patient.
17. Specifically, we do not note any negligence / deficiency in any of the O.P. Nos. 1, 2, 3 and 4 hospitals. The immediate and the due medical care and treatment was provided, timely referral to a higher centre was made at the considered professional wisdom of the doctors in the best interest of the patient. Also, we do not note any negligence / deficiency in the O.P. No. 8 hospital, where the critical patient was managed till her demise.
18. It is significant that the patient left O.P. No. 4 hospital LAMA. The patient has a right to choose his medical centre for his treatment. But such right of the patient (to choose his centre for treatment) does not in itself per se imply negligence / deficiency on the centre which he leaves LAMA.
19. The Complaint in addition to being somewhat nebulously and irrationally articulated, has been made with twisting of the facts to colour it as gross negligence of the hospitals and the doctors. From the entire medical record evidently it was not a case of AMI or ACS (acute myocardial infarction or acute coronary syndrome), but it was ischemic heart disease (IHD) and the patient was already known case of DM-2 with nephropathy (Grade V CKD). The diagnosis and treatment given to the patient in each hospital was correct for IHD / CRF / LVH. We do not find any shortcomings in the treatment. Though it is apparent that the signature and stamp of the hospitals were not put on some documents, this per se alone does not construe as a medical negligence / deficiency. It has to be borne in mind that the hospitals were government hospitals having large volumes of patients and limited capacities and wherewithal.
20. By definition a complaint is "any allegation in writing". This does not mean that "any allegation" in writing" has necessarily to be admitted. Prima facie if substance is seen in the allegations, the Complaint should ordinarily be admitted and notice issued to the opposite parties to file their defence by way of written version. In this case, however, we do not note substance in the allegations, ex facie, after thoroughly examining the Complaint and the entire medical and other record annexed therewith and after hearing the argument of learned Counsel at length.
21. Mechanically admitting a Complaint, without the due application of mind, arraying a fair number of government hospitals (05) and doctors (03) working therein as opposite parties, would, in our opinion, be ill-advised, in the present facts and context, and, in addition, unnecessarily put the government hospital administrative system to trouble and prejudice. Here we may categorically and explicitly clarify that this observation may in no manner be construed to imply that a government hospital administrative system or doctors working therein are not accountable for negligence / deficiency. The limited conclusion being made in the present facts and context of the instant case is that, as already stated, no negligence / deficiency is visible ex facie, after examining the entire record and hearing arguments, no reason to admit the Complaint is visible.
22. In the light of the above examination, the Complaint is dismissed.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER