State Consumer Disputes Redressal Commission
Smt. Sovamoyee Bhattacharya vs Dr. Tapomay Dutta Majumder on 13 January, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. 81/A/98 DATE OF FILING: 19/02/1998 DATE OF FINAL ORDER: 13.01.2009 APPELLANTS 1) Smt. Sovamoyee Bhattacharya W/o Late Haraprasad Bhattacharya Kharuabazar, Kamarpara Road P.O. & P.S. Chinsurah Dist. Hooghly 2) Smt. Chhitra Bhattacharya D/o Late Haraprasad Bhattacharya Kharuabazar, Kamarpara Road P.O. & P.S. Chinsurah Dist. Hooghly RESPONDENTS 1) Dr. Tapomay Dutta Majumder (Physician & Cardiologist) B-2, Joraghat R.H.E. P.O. & P.S. Chinsurah Dist. Hooghly 2) Dr. Ananda Kali Sain (Consultant Physician & Cardiologist) Hospital Road, P.O. & P.S. Chinsurah Dist. Hooghly Residential Address: 14/3/5, Nandalal Jew Road Kolkata 700 026 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MR. A.K. RAY FOR THE APPELLANTS : Mr. Ashok Kr. Bhattacharya, Advocate FOR THE RESPONDENTS: Mr. Arindam Bhattacharya, Advocate(No.1) Mr. A.K. Sil, Advocate (No.2) : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT The facts in brief in the present case are that one Beetashoke Bhattacharjee having fever and loose motion was examined on 16.11.96 by OP1 who diagnosed the disease as Rheumatic Heart. Initially OP1 prescribed medicine but thereafter on further examination of the patient he advised for Mantraux Test and prescribed medicines. After the report of the test was found negative the patient was treated at Imambara Sadar Hospital, Chinsura under OP1. On discharge from the hospital the patient was examined by OP2, a senior Cardiologist at his residence who diagnosed the patient to be anemic debilitated and swelling legs. ECG report showed to OP2 indicating left ventricular hypertrophy. According to OP2 the patient was suffering from Sub-Acute Bacterial Endocardities (SABE), super imposed in case of Rheumatic heart disease with mild amoebic hepatitis.
Medicines were prescribed as also for certain tests. After no report was sent to OP2 about the patient for two days, brother of the patient reported to OP2 about slight improvement of the condition of the patient though legs were still swollen. Considering the condition of the patient medicines were changed by OP2 and advice was given by daily reporting. Again for three days no report was sent to the OP2 and, thereafter it was reported that the patient was still suffering from fever and medicines and hospitalization were advised.
On 21.12.96 on clinical examination OP2 found the patient suffering from arotic stenosis with bacterial endocardities with loose motion. Finding deteriorating condition of the patient, OP2 advised admission of the patient in SSKM Hospital at the instance of the brother of the patient admission with Gandhi Memorial Hospital, Kalyani were prescribed. On 23.12.96 when the patient was admitted under Dr.T. Das in Gandhi Memorial Hospital, Kalyani he was diagnosed to be Meningo Encephelitis and that patient had no serious cardiological problem. Next day Dr. Das advised that the condition of the patient being precarious due to Meningities, he could not be treated at Gandhi Memorial Hospital and so he to be shifted Jawharlal Nehru Memorial Hospital, Kalyani. The same was done on 24.12.96.
Patient expired at Jawharlal Nehru Memorial Hospital, Kalyani on 29.12.96. Thereafter complaint was filed before the Forum below. As the complaint was dismissed by the Forum below the present appeal was filed by the complainants. Written objection was filed by the OPs. Parties also adduced evidence on affidavit in respect of which questionnaires were filed followed by replies thereto. Written brief notes were also filed by the parties.
Mr. Ashoke Kr. Bhattacharjee, the Ld. Advocate for the Appellant relied on the written argument filed by him and stated that he would not advance any oral argument but will give his replies after the Respondents advance oral argument. On behalf of the Appellant reliance was placed on the judgment in the case of Vidyabati-Vs-Dr. K.R. Mechindra. Mr. Arindam Bhattacharjee, the Ld. Advocate for the Respondent No.1 also filed written argument and stated that he does not want to make any oral argument and placed reliance on the written argument filed.
Mr. A.K. Sil, the Ld. Advocate for the Respondent No.2 argued that Sovamoyee Bhattacharya the Complainant No.1 died long back and neither any application for substitution nor for recording of death or for addition of party was ever filed.
It is contended that on the death of the patient the complaint was filed by the mother and sister of the deceased in the year 1997. Though on the death of the patient only his mother in the category of class one heir was entitled to file the complaint and the sister being there the complaint suffered from defect of parties. It is further argued that Section 2 (1)(b) as it stood at the relevant point of time did not permit substitution of heirs on the death of a party. The Clause-V was introduced w.e.f. 15.3.03 which permitted legal heirs or representative of a consumer to be a complainant in case of death of a consumer. Mr. Sil also contended that Section 13(7) of the C.P. Act also amended w.e.f 15.3.03 which permitted the application of the provisions of order XXII of the first schedule to the Code of Civil Procedure. It is the contention of Mr. Sil that on the death of the patient his mother, the complainant No.1, being the sole heir of the patient was entitled to file the complaint and the sister of the deceased patient being not an heir could not be joined as co-complainant. On the death of mother of the deceased being OP1 on 27.02.03, the proceeding abetted as on that day neither substitution was permissible as such provisions of substitution was made applicable only on 15.3.03, the proceeding already stood abetted on 27.2.03. The Ld. Advocate for the complainant contended that this question cannot be urged in the present hearing as those facts were before the Honble National Commission when it directed the State Commission to hear out the matter on remand.
On consideration of the above contentions of the respective parties we find that admittedly the sister of the patient since deceased was a co-complainant and the complaint at the instance of mother being the heir of the deceased was undisputedly valid. On the death of the mother on 27.2.03 the sister was already a party and there was no requirement for substitution. Moreover, for substitution of heirs period of limitation is 90 days and, therefore, when the provisions of Order 22 became applicable w.e.f. 15.3.03, time was till there for substitution upon setting aside abatement. In the circumstances we do not find there was any irregularity in continuation of the proceeding and we find that the proceeding did not abate in the facts and circumstances of the case.
The Ld. Advocate for the OPs did not argue the question of pecuniary jurisdiction and no points having been shown against existence of pecuniary jurisdiction, we hold that the Forum was having the jurisdiction to entertain and try the proceeding.
With regard to the merit of the case it appears that the complainants allegation is mainly of wrong diagnosis by the OPs and the defence of the OPs is that there was no wrong diagnosis and even if it is held that there was wrong diagnosis, there is no medical negligence on the part of either of the OPs.
The complainant relied on the facts for showing that patient had fever and loose motion on 06.11.96 when he was examined by OP1 who diagnosed the disease as Rheumatic Heart and prescribed some medicines. As condition did not improve, the same was reported to the OP1 on 23.11.96 when he prescribed some medicines. Still when there was no improvement, the patient made the OP1 on 28.11.96 who advised Mantraux Test and prescribed medicines.
When the said test result was found negative the OP1 advised admission of the patient in the Imambara Sadar Hospital at Chinsura for thorough observation and treatment. The patient was so admitted on 07.12.96 and was under treatment of OP1 from 07.12.96 to 12.12.96. OP1 made several clinical tests. The treatment did not show any improvement and the OP1 discharged the patient from the hospital on 12.12.96 and advised to consult OP2.
On such advice OP2 was consulted on 12.12.96 who diagnosed the disease as fever SABE Hepatitis and prescribed some medicines and also advised some pathological tests. On 15.12.96 the OP2 was reported about deterioration of the condition who prescribed some medicines and when still there was no improvement the patient met the OP2 who after examining the patient opined that immediate hospitalization was required. As per advice of OP2 the patient was admitted in Gandhi Memorial Hospital at Kalyani where Cardiac diseases are treated.
On admission in Gandhi Memorial Hospital on 23.12.96 Dr. T. Das examined the patient and diagnosed the disease as Meningo Encephelitis. On the next day the said Dr. T. Das advised that the patient had no serious cardiological problem and due to meningitis his condition was precarious and so the patient should be removed to a general hospital.
On his reference the patient was admitted in Jawharlal Nehru Memorial Hospital at Kalyani on 24.12.96 Dr. Saibal Mukherjee examined the patient in Jawharlal Nehru Memorial Hospital and told that patient had been subjected to wrong treatment and so his condition had gone beyond any chance of recovery. The patient was kept in intensive care treatment from 24.12.96 to 29.12.96 when he expired.
The Forum below dismissed the complaint on the ground that Forum cannot decide such case involving voluminous facts and evidence. The appeal was dismissed by the State Commission. Challenging the same Revision Petition filed before Honble National Commission was allowed directing the State Commission to hear the matter on merits.
On such facts allegation is of wrong diagnosis and wrong treatment. On behalf of the OPs it is contended that neither Dr. T. Das in Gandhi Memorial Hospital nor Dr. Mukherjee in Jawharlal Nehru Memorial Hospital got any pathological test done for proper diagnosis. No post-mortem report was also obtained upon the death of the patient for identifying the disease which caused the death. On behalf of the OP1 it is argued that the patient was examined by him on 16.11.96, 23.11.96 and 28.11.96. On the advice of OP1 the patient was admitted in Imambara Sadar Hospital where OP1 treated the patient. The OP1 diagnosed the case as Rheumatic Heart with low grade fever even when after treatment in Imambara Sadar Hospital when the condition did not improve the patient consulted OP2 who diagnosed the case as fever SABE Hepatitis. The OP2 extended treatment to the patient from 12.12.96 till 22.12.96 and during the said period he examined the patient only on 12.12.96 and 21.12.96 when the patient visited the OP2. It appears that on some days the brother of the patient reported the condition to OP2 and still then there were intervening periods when neither the patient visited the doctor nor his condition was reported to OP2.
Moreover, both OP1 and OP2, in course of the treatment of the patient got pathological tests done on the basis whereof treatment was continued and diagnosis was made. But admittedly neither in Gandhi Memorial Hospital nor in Jawharlal Nehru Memorial Hospital any pathological tests were held and the doctors treating there only advised on examination of the patient. It is noticed that while differing in respect of diagnosis from the earlier diagnosis of the doctors being OP1 & OP2. The doctors treating the patient in Gandhi Memorial Hospital and Jawharlal Nehru Memorial Hospital did not record any reason for such difference of opinion as regards diagnosis.
In this case on behalf of the complainant no expert was examined and only the doctors treating the patient in Gandhi Memorial Hospital and Jawharlal Nehru Memorial Hospital deposed in support of the complainant. Even the evidence of such doctors do not lead to a conclusion positively that the diagnosis by them were correct as they admittedly did not depend upon any pathological tests. No post-mortem examination was done after the death of the patient which could indicate the cause of death. Therefore, in such circumstances on the materials available this Commission cannot reach a conclusion as regards the allegation of wrong diagnosis.
With regard to the allegation of medical negligence, as the OPs admitted that both OPs 1 & 2 examined the patient, got him pathologically tested on more than one occasion and when found that the condition of the patient was not improving responding to their respective treatments, the patient was referred to some other doctor. Therefore, when diagnosis has not been proved to be wrong either on tests conducted by the doctors subsequently treating the patient or by holding post-mortem examination on his death, there is no material before us to hold any medical negligence on the part of either of OP1 or of OP2. There being no impartial experts opinion, on the materials available we are unable to come to a finding as regards medical negligence by OP1 or OP2. Medical literatures have been referred to.
There is no material to conclude on the medical literatures that on the given facts of the present case either there was wrong diagnosis or there was any medical negligence on the part of the OP1 or OP2.
There is no material which conclusively show as to whether patient was suffering from meningitis and even if ultimately was suffering from that disease, since when he was so suffering. Therefore, it cannot be concluded that the patient was suffering from meningitis when OP1 or OP2 was treating him. It is worth noting that Dr. T. Das stated in his evidence that his diagnosis was provisional diagnosis only. Dr. S. Mukherji of Jawharlal Nehru Memorial Hospital also stated in his answer to question No.16 that his diagnosis was provisional diagnosis. In answer to Question No.27 Dr. Mukherji stated C.T. Scan or L.P. was advised for examining the cerebrospinal fluid to detect the cause of illness. From evidence of Dr. Das and Dr. Mukherji it appears that their diagnosis was provisional and further tests were advised to know the cause of illness which could not be done for reasons stated.
Law has been referred to as decided in the case of Jacob Mathews-Vs-State of Punjab reported in (2005)6 SCC 1 and Nilkanta Sarkar-Vs-S.N. Banerjee (Dr.) reported in (2007)3 CPJ 247 decided by West Bengal State Commission. The Apex Court in Jacob Mathews case observed as follows:-
A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.
The law so decided also supports our observation recorded hereinabove.
In above view of the findings there being no material to uphold the contention of the complainant on alleged wrong diagnosis or negligence by OP1 or OP2 the complaint is hereby dismissed on contest without costs.
(A.K. Ray) (Justice A. Chakrabarti) MEMBER PRESIDENT