National Consumer Disputes Redressal
Ranjit Sarkar vs Ils Hospitals & 6 Ors. on 9 March, 2021
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 874 OF 2015 1. RANJIT SARKAR 9B, NORTHERN AVENUE KOLKATA-700037 ...........Complainant(s) Versus 1. ILS HOSPITALS & 6 ORS. 1, KHUDIRAM BOSE SARANI,
BESIDE NAGERBAZAR FLYOVER, KAZIPARA,DUM DUM, KOLKATA-700080 2. DR. RAVI BHARADWAJ 1, KHUDIRAM BOSE SARANI,
C/O ILS HOSPITALS
BESIDE NAGERBAZAR FLYOVER,
KAZIPARA,DUM DUM,
KOLKATA-700080 3. DR. PRASENJIT SARKAR 1, KHUDIRAM BOSE SARANI,
C/O ILS HOSPITALS
BESIDE NAGERBAZAR FLYOVER,
KAZIPARA,DUM DUM,
KOLKATA-700080 4. DR. DEVRAJ ROY, SURGEON 1, KHUDIRAM BOSE SARANI,
C/O ILS HOSPITALS
BESIDE NAGERBAZAR FLYOVER,
KAZIPARA,DUM DUM,
KOLKATA-700080 5. DR. ATUL VAJPAYEE, NEUROSURGEON 1, KHUDIRAM BOSE SARANI,
C/O ILS HOSPITALS
BESIDE NAGERBAZAR FLYOVER,
KAZIPARA,DUM DUM,
KOLKATA-700080 6. DR. SUDHIR KUMAR 1, KHUDIRAM BOSE SARANI,
C/O ILS HOSPITALS
BESIDE NAGERBAZAR FLYOVER,
KAZIPARA,DUM DUM,
KOLKATA-700080 7. DR. S. SARKAR 1, KHUDIRAM BOSE SARANI,
C/O ILS HOSPITALS
BESIDE NAGERBAZAR FLYOVER,
KAZIPARA,DUM DUM,
KOLKATA-700080 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT
For the Complainant : For Complainant : Mr. Rabin Majumder, Advocate
Ms. Akanksha Srivastava, Advocate
with Complainant in person For the Opp.Party : For Opposite Parties : Mr. Partha Sil, Advocate
Mr. Tavish B. Prasad, Advocate
Ms. Binota Roy, Advocate
Dated : 09 Mar 2021 ORDER
R.K. AGRAWAL, J., PRESIDENT
The present Complaint has been filed under Section 21(a)(i) of the Consumer Protection Act 1986 by Mr. Ranjit Sarkar (hereinafter referred to as the Complainant), the father of deceased son Indrajit Sarkar, who died due to alleged medical negligence on the part of the Opposite Parties - the hospital and attending doctors.
Brief facts as enumerated in the Complaint are that the Complainant Mr. Ranjit Sarkar's son Mr. Indrajit Sarkar (since deceased hereinafter referred to as the "patient"), aged 36 years had a fall from staircase in his residence on 10.07.2014 at 4.00 p.m. and suffered back injury. He was complaining of severe pain in lower back and abdomen. As the intensity of the pain increased, he was rushed to the emergency department of ILS Hospital (the Opposite Party No.1). The patient walked to the emergency department, he was examined by the doctor and in stable condition admitted in the hospital at 6.05 p.m. He was alert and cooperative. His pulse was 100 per minute, BP 120/90 mm of Hg. There was mild abdominal tenderness.X-rays for Spine (AP and lateral view), Chest and the Pelvis AP view were advised. The X-ray of spine revealed mild anterior wedge fracture D11 and D12 vertebral bodies. The other X-rays were normal. It was alleged that the on-duty Emergency Medical Officer failed to identify the life threatening condition. He did not pay careful attention to the mild abdominal tenderness and the X-ray chest findings of elevated dome of diaphragm which could have suggested intra-abdominal organ injuries and hemorrhage. No other confirmatory test was advised. It was further alleged that after lapse of 12 hours on the next day on 11.07.2014 at 8.30 a.m., Dr. Ravi Bharadwaj, an Orthopedic Surgeon (hereinafter referred to as the "Opposite Party No. 2") and Dr. S. Sarkar (hereinafter referred to as the "Opposite Party No. 7") examined the patient but even they failed to mention about the clinical status of the patient. Thereafter, Dr. Ravi Bharadwaj referred the patient to the Surgeon, Dr. Devraj Roy (hereinafter referred to as the "Opposite Party No. 4") for abdominal distension, who examined the patient at 9.45 a.m. He recorded history of the patient as severe back and abdominal pain since the morning of 10.07.2014 and advised Ultrasonography (USG) of whole abdomen. However, he failed to advise abdominal CT scan to find out the cause of abdominal distension. The USG reported as "no solid organ injury, no intra-abdominal collection, and the retroperitoneum was obscured by bowel gas". According to the Complainant, when the patient was hemodynamically fairly stable, the Surgeon Dr. Devraj Roy, the Opposite Party No.4, could have performed exploratory laparotomy to find out the cause of bleeding from any intra-abdominal organs in front of D11 & D12, the fracture site in the retroperitoneal & sub-diaphragmatic space. The Opposite Party No. 4 did not act as per International Protocol to find out injury to Adrenal (suprarenal) gland, Kidney and the blood vessels (Renal vein and artery). Thus it was an unexplained indifference; reluctance and colossal dereliction of duty on the part of Dr. Devraj Roy, Surgeon, the Opposite Party No.4, who failed to operate immediately to stop the hemorrhage. It led to further deterioration of the condition of patient and the patient was put on ventilator. The golden hour for stabilization of patient was lost. An emergency CT Scan of abdomen to rule out intra-abdominal trauma was not advised, otherwise it would have benefitted the conservative treatment of the patient. It was further alleged that the CT and MRI was conducted after 17 hours of the admission of patient and obviously it was to increase the hospital bill. Dr. Ravi Bharadwaj, the Opposite Party No. 2, made an unnecessary reference to the Neurosurgeon Dr. Atul Bajpai (hereinafter referred to as Opposite Party No.5) though the primary concern was tenderness in the abdomen. In the evening at about 7.00 p.m., the Opposite Party No. 2 examined the patient but failed to pay attention to find out the actual cause of abdominal tenderness. He applied only Nelson's eye for the confirmation of bony injuries i.e. wedge fracture at D-11 and D-12 by CT and MRI Scan. It was the major dereliction of duty on the part of Opposite Party No. 2.
The Complainant further alleged that due to the continuous internal hemorrhage, patient's BP dropped in the evening to 70/mm systolic and the diastolic not recordable. Though clinically on 11.07.2014 the patient was deteriorating fast from 9.40 a.m. to 6.25 p.m., the treating doctors have not done check up every 4 to 6 hours to rule out hemorrhage and peritonitis. Patient's vitals were not recorded in the BHT. At 6.25 p.m., the patient became drowsy, his Pulse was 124/min and the urine output was not recorded. After the gap of 11 hours, Dr. Devraj Roy, the Opposite Party No.4, examined the patient at 8.00 p.m. again when the patient's condition worsened considerably. The patient was shifted to Intensive Therapy Unit (ITU). The Diastolic blood pressure was not recordable because of severe hypotension. All the signs were suggestive of internal hemorrhage ignored by the treating doctors. The information about the rapidly deteriorating condition of the patient was not given to the attendants and no consent was signed by the father of the patient. Therefore, the Complainant had no scope or opportunity to think of shifting the patient to other hospital having better infrastructure. Thus, it was utter callousness, irresponsible inaction and horrific gross negligence by the doctors at ILS Hospital during critical hours which led to fast deterioration of the patient.
It was further alleged that Opposite Party No.4, Dr. Devraj Roy, being a Surgeon was thoroughly unaware and lacks knowledge of basic symptoms of blunt abdominal trauma and failed to detect the reasons for abdominal distension. It was his failure to apply due skill to make diagnosis at the critical hours as well as failure to seek any expert opinion. Thus the Opposite Party No. 4 denied the "right to life" for his young, healthy son that was sheer negligence. It was further alleged that on 11.07.2014 at 9.40 a.m., an urgent USG abdomen was advised but it was actually done nearly after 3 hours at 12.55 p.m. and the report was printed at 6:21 p.m. The bladder catheterization was done but nothing was mentioned about how much urine was collected in the bottle to ascertain whether kidneys were functioning properly. Thus, overall act of doctors was a glaring example of gross/wanton Criminal Negligence and Corporate Negligence.
It was further alleged that in the evening, at 6.50 p.m., on 11.07.2014, none of the doctors applied their mind to ascertain the cause of acute hypotension. At 8.00 p.m., Dr. Prasenjit Sarkar - (hereinafter referred to as the "Opposite Party No.3") examined the patient and recorded the BP 90/60 mm of Hg. He completely failed to understand the critical condition of the patient even after two liters of fluid resuscitation. Based on the USG findings, the Opposite Party No. 2 and Opposite Party No. 3 mentioned in the progress notes that 'no obvious solid organ injury and the Retro-peritoneum were obscured by bowel gas'.
The Complainant further alleged that on 11.07.2014 at 10 p.m., when the doctors suspected Pulmonary Embolism (PE), they advised Computerized Tomography of Pulmonary Angiography ("CTPA") which is a diagnostic test for PE to obtain image of the pulmonary arteries. Again after 12 hours at 10 a.m. on 12.07.2014, Dr. Prasun Halder and Dr. Prasenjit Sarkar, Cardiologist repeated the advice for CTPA and CT-abdomen but it was actually done at 2.29 p.m.It was gross negligent attitude of the doctors that the CTPA that should have been done immediately when the patient was admitted in emergency but it was performed after 44 hours and about 4½ hours before death of patient. The CTPA report revealed as below:
(1) left adrenal haemorrhage
(2) no obvious thrombos in main pulmonary arteries and segmental and sub segmental arteries
(3) Thrombos in left renal vein
It was further alleged that despite fall in BP and the report of CTPA that revealed continuous active bleeding from left adrenal gland, the treating doctors unnecessarily administered anticoagulants Inj. Clexane (twice daily) and Inj Arixtra (once daily) to the patient from 10 a.m. on 11.07.2014. Both were blood thinners which accelerated the death of the patient. According to the Complainant, by these two injections, doctors have murdered his son. Thus all attending doctors including Dr. Devraj Roy, Surgeon and also Dr. P. Sarkar, Cardiologist, did not take pro-active role to get done CTPA immediately. He further alleged that D. Dimer report was fraudulently inscribed in the medical report as it was high upto 1890 mg/ml, with the intention to prove that the patient had pulmonary embolism.
The Complainant further alleged that Dr. Prasun Halder, Cardiologist did not make any comment on 'Trop T' test of the patient. He should have advised CT Scan or MRI of whole abdomen to detect any injury to the intra-abdominal organs injury around the wedge fracture site at D11 and D12. He also did not advise the assessment of Hct and Hb% to confirm possible blood loss from hemorrhage from any injury to the blood vessels of the internal organ surrounding the fracture site. According to the Complainant, Dr. Prasun Halder, Cardiologist, had not applied his brain and mind in diagnosing the cause for hypotension and tachycardia which was due to continuous hemorrhage from the left adrenal gland which was revealed subsequently. The same was mentioned in the Death Certificate. The Complainant further alleged that though Dr. Prasun Halder, Cardiologist, suspected Pulmonary Embolism (PE) who advised CTPA and Bilateral venous Doppler but failed to take proactive step to investigate immediately to prevent sudden death of the patient from PE. Further it was shocking that without obtaining CTPA report, Dr. Prasun Halder prescribed Inj Arixtra, a drug used to dissolve blood clot formation which should not be used if patient had any bleeding tendency. The administration of injection Arixtra actually precipitated further hemorrhage from Adrenal gland and thereby accelerated the death of the patient.
The Complainant further submitted that the critically ill patient was not examined frequently after 3 p.m. on 12.07.2014; the BP was not maintained even after double inotropic support. Dr. Ravi Bharadwaj (Opposite Party No. 2) wanted to mislead the parents of the patient by writing provisional diagnosis as sudden acute Pulmonary Embolism and mentioned the "Plan" of treatment as "Follow advice of Dr. P. Sarkar, for Pulmonary Embolism". It was decided only on the basis of ECHO without CTPA report. Dr. Ravi Bharadwaj sought consultation of Pulmonologist, Dr. Anirban Sarkar without mentioning the reasons for such referral. Dr. Ravi Bhardwaj acted rash and negligently and misled that patient was suffering from Pulmonary Embolism which was not a reality.
The Complainant alleged that Procalcitonin in level would have done to know about abdominal infection and for escalation of powerful antibiotic dose to save the life of patient. The collection of blood in the abdomen acts as a good culture media for the growth of bacteria causing Infection which raises Procalcitonin level. However, in the instant case the escalation of powerful antibiotics was done only after the Procalcitonin level shot up to 64.53 and by that time the patient became very critical resulting in a fatal outcome.
It was further alleged that the Opposite Parties issued a vague & unlawful Death Certificate through one Dr. Manoj Mistry who was not attending doctor of the patient and mentioned the immediate cause of death as Pulmonary Embolism, which raises suspicion. In all probability, the attending doctors attempted to cover up their negligence as most of the times the PE is fatal, and a better ground to mislead the patient's attendants. It was also surprising that antecedent cause of death mentioned as fracture D12 vertebra when the C.T scan and MRI report of D/L spine revealed fracture of D11 & D12 vertebrae with compression and collapse and wedging of D12 vertebrae. Therefore mentioning of the antecedent cause of death D12 does not tally with report of X-Ray, C.T, and MRI of D/L spine. The manner of death mentioned as natural appears to be in conformity with existing and legal protocol i.e. the fracture which has resulted following the fall cannot be regarded as natural death. Therefore, to find out the actual cause of death medico-legal Post Mortem examination (PM) of dead body should have been performed to establish "possible thromboembolism" as it does not corroborate with CTPA report.
The Complainant further alleged that his young son of 36 years old died due to gross medical negligence by the hospital and the treating doctors with unimaginable lack of care or compassion for an emergency medical condition of the patient. He was virtually left to die in ICU without any attempt to diagnose or treat the serious medical condition. This case is of "res ipsa loquitor" as held in the case of Malay Kumar Ganguly vs Dr. Sukumar Mukherjee (2009) 9 SCC 221. The medical record would speak for itself and leave no doubt about the abysmal treatment provided by the attending doctors.All the doctors failed miserably to register the clinical findings of the patient due to their sheer incompetence. They also failed to note the severe fall in the patient's hemoglobin values. Thus all the treating doctors shall be held liable for unethical practices for intentionally did not follow the accepted international protocol. Dr. P. Sarkar's qualification as MRCP is not recognized by MCI and he was stated to be a Cardiologist. Even Dr. Atul Vajpayee, Neurosurgeon was extremely casual in maintaining clinical protocol to find out actual causes of hypotension, tachycardia, sweating, distension of abdomen etc. Being a Surgeon he exhibited total lack of competence, gross lack of attention, amounting to criminal indifference to save the life of young patient. Such action was of extreme departure from ordinary standard of care which even an MBBS doctor would shudder to do.
According to the Complainant it was most casual and inhuman negligence unheard of and unimaginable mal-treatment that had meted out to son of the Complainant at ILS Hospital (Opposite Party No. 1) by the 6 (six) attending doctors namely: (i) Dr. Ravi Bhardwaj, MS-Ortho [Opposite Party No. 2]; (ii) Dr. Devraj Roy - MS Surgeon [Opposite Party No. 4]; (iii) Dr. Prasenjit Sarkar - MRCP-Part-II [Opposite Party No. 3]; (iv) Dr. AtuI Vajpayee, Neuro-Surgeon [Opposite Party No. 5]; (v) Dr. P. Haider, PGDCC; (v) Dr. Anirban Sarkar - Pulmonologist. Being aggrieved, the Complainant- Ranjit Sarkar, the father of deceased filed this Complaint to claim ₹3,34,88,000/-. However, the Complainant in year 2018 filed an I.A. No. 8580/2018 revised for revision of his to ₹6,48,60,000/-.
The Consumer Complaint was heard by Division Bench comprising of Dr. S.M. Kantikar, Presiding Member and Mr. Dinesh Singh, Member.Dr. S.M. Kantikar, Presiding Member dismissed the Complaint by observing as under:
"The treating doctors had treated the patient as per accepted standards of medical practice. There was no deficiency in service; the hospital provided all the necessary infrastructural facilities as well as the support of well-trained medical staff. That despite every sincere effort by the entire medical team at ILS Hospital treating the patient (deceased Indrajit Sarkar) did not succeed in saving his life. It was the rare and uncommon outcome such as left adrenal haemorrhageas a result of traumatic injury of the spine. In the instant case the medical limitations which are beyond human control."
Hon'ble Mr. Dinesh Singh, Member took a contrary view and ordered that the matter be referred to the opinion of a Medical Board of Experts.
Since the Members of the Division Bench came to different conclusions, the matter has been referred to a third Member under section 20 (1A) (iii) of the Consumer Protection Act, 1986 for giving opinion on the following point of difference:-
"Whether the Complaint be dismissed OR whether the matter be referred for the opnion of a Medical Board of Experts."
I have heard Mr. Ranjit Sarkar, the Complainant in person, Mr. Partha Sil, learned Counsel for the Opposite Parties, gone through the Orders passed by Dr. S.M. Kantikar, Presiding Member, Mr. Dinesh Singh, Member and perused the material available on record.
Mr. Ranjit Sarkar, the Complainant, reiterated the submissions made by him before the Division Bench.According to him the findings given by the West Bengal Medical Council pinpoints the negligence on the part of the treating Doctors and, therefore, the Complaint should be allowed.He, however, submitted that there is no requirement of seeking opinion of a Medical Board of Experts.
Mr. Partha Sil, learned Counsel appearing on behalf of the Opposite Parties submitted that there was no negligence on the part of the treating Doctors and the Complaint is only misconceived and is liable to be dismissed.In support of his contentions, he relied upon the following Judgments:
i) Indian Medical Association vs. V.P. Shanta (1995) 6 SCC 651;
ii) J.J. Merchant (Dr.) vs. Shrinath Chaturvedi, (2002) 6 SCC 635;
iii) Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee, (2009) 9 SCC 221;
iv) V. Kishan Rao vs. Nikhil Super Specialty Hospital, (2010) 5 SCC 513 and
v) Amrit Raj vs. Dhawan Surgicary Care and Multi Speciality Hospital, 2019 SCC OnLine NCDRC 711.
Before considering the question as to whether the Complaint should be dismissed or not; the issue whether in the case of alleged medical negligence it is mandatory to refer the matter for the opinion of a Medical Board of Experts or not, has to be gone into.
It would be appropriate to mention that the law has been well-settled by the Hon'ble Supreme Court in cases when the Report of the Expert / Medical Board should be called for.The Hon'ble Supreme Court in V.P. Shanta (supra) has considered the procedure to be followed by the Foras under the Consumer Protection Act, 1986 and has laid down the principles to be applied.For ready reference, Para 37 of the Judgment passed by the Hon'ble Supreme Court in V.P. Shanta (supra) is reproduced below:-
"37. As regards the procedure to be followed by these agencies in the matter of determination of the issues coming up for consideration, it may be stated that under Section 13(2)(b), it is provided that the District Forum shall proceed to settle the consumer disputes (i) on the basis of evidence brought to its notice by the Complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or (ii) on the basis of evidence brought to its notice by the Complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum. In Section 13(4) of the Act it is further provided that the District Forum shall have the same powers as are vested in the civil court under the Code of Civil Procedure while trying a suit in respect of the following matters--
"(i) the summoning and enforcing attendance of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object producible as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness and
(vi) any other matter which may be prescribed."
The same provisions apply to proceedings before the State Commission and the National Commission. It has been urged that proceedings involving negligence in the matter of rendering services by a medical practitioner would raise complicated questions requiring evidence of experts to be recorded and that the procedure which is followed for determination of consumer disputes under the Act is summary in nature involving trial on the basis of affidavits and is not suitable for determination of complicated questions. It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency in rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out-patient card containing the warning (as in Chin Keow v. Govt. of Malaysia [(1967) 1 WLR 813 (PC)] ) or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the Complainant can be asked to approach the civil court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the civil court for necessary relief. We are, therefore, unable to hold that on the ground of composition of the Consumer Disputes Redressal Agencies or on the ground of the procedure which is followed by the said Agencies for determining the issues arising before them, the service rendered by the medical practitioners are not intended to be included in the expression 'service' as defined in Section 2(1)(o) of the Act."
In the case of J.J. Merchant (Dr.) (supra), the Hon'ble Supreme Court has held as follows:-
"18. Further, in the present case, the Complainant's case is based upon the negligence of the doctors in giving treatment to the deceased. Whether there was negligence or not on the part of the doctors concerned would depend upon facts alleged and in such a case there is no question of complicated question of law involved. However, it has been pointed out by the learned Senior Counsel that recording of evidence of experts including doctors relied upon by the Complainant would consume much time and therefore also the Complainant should approach the civil court. As against this, learned counsel for the Complainant submitted that under the Act, the Commission is required to follow summary procedure. It may or may not examine the doctors or experts. It may only rely upon the statements given by such doctors or experts.
19. It is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under Section 13(4)(v)]. It is also to be stated that Rule 4 in Order 18 CPC is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that witnesses could be examined by the court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time."
In the case of Malay Kumar Ganguly (supra), the Hon'ble Supreme Court has held as follows:-
"C. DETERMINATION OF CERTAIN SALIENT POINTS OF LAW AND FACTS
C.1. Expert evidence
33. Section 45 of the Evidence Act, 1872 speaks of expert evidence. It reads as under:
"45. Opinions of experts.--When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.
Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant."
A court is not bound by the evidence of the experts which is to a large extent advisory in nature. The court must derive its own conclusion upon considering the opinion of the experts which may be adduced by both sides, cautiously, and upon taking into consideration the authorities on the point on which he deposes.
34. Medical science is a difficult one. The court for the purpose of arriving at a decision on the basis of the opinions of experts must take into consideration the difference between an "expert witness" and an "ordinary witness". The opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether such an evidence could be admitted or how much weight should be given thereto, lies within the domain of the court. The evidence of an expert should, however, be interpreted like any other evidence. This Court in State of H.P. v. Jai Lal [(1999) 7 SCC 280 : 1999 SCC (Cri) 1184] held as under: (SCC pp. 285-86, paras 17-19)
"17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.
19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to face cross-examination. This Court in Haji Mohammad Ekramul Haq v. State of W.B. [AIR 1959 SC 488] concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons."
In the case of Nikhil Super Specialty Hospital (supra), the Hon'ble Supreme Court has held as follows:-
"18. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.
.....
38. A careful reading of the aforesaid principles laid down by this Court in Indian Medical Assn. [(1995) 6 SCC 651] makes the following position clear:
(a) There may be simple cases of medical negligence where expert evidence is not required.
(b) Those cases should be decided by the Fora under the said Act on the basis of the procedure which has been prescribed under the said Act.
(c) In complicated cases where expert evidence is required the parties have a right to go to the civil court.
(d) That right of the parties to go to civil court is preserved under Section 3 of the Act.
.....
56. This Court however makes it clear that before the Consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of the Fora especially when retired Judges of the Supreme Court and the High Courts are appointed to head the National Commission and the State Commissions respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or straitjacket approach that each and every case must be referred to experts for evidence.
57. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated.
58. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other."
This Commission in the case of Amrit Raj (supra) has held as follows:-
"29. The State Commission cannot and should not take recourse to its lack of expertise and blindly rely on an expert report. It has to understand the matter in its entirety including the contents of an expert report called for by it, examine and appraise the matter holistically, and arrive at its reasoned findings with the due application of mind.
......
35. In respect of 'expert opinions', also, we may elaborate that they are broadly of two types. One are expert opinions filed by the Complainant and/or the Opposite Parties hospital/doctor, the other are expert opinions sought by a Consumer Protection Forum. The former is adduced as part of their respective evidence by either or both sides. The latter is sought by the Forum, in its considered wisdom, and should generally be sought on the basis of the entire material on record i.e. the Complaint, the Written Version, the Rejoinder thereto, the Evidence (including expert opinion(s) filed by either or both sides), briefs of written arguments (including medical literature filed by either or both sides), and, most importantly, the complete medical record available on the case-file. As such, the two, an expert opinion filed by either side, and an expert opinion sought by a Consumer Protection Forum, are distinctively and differently placed."
In the case of "Lalan Pandey vs. Chandeshwar Prasad (Dr.)III (2019) CPJ 327 (NC)", this Commission has followed the Judgment of the Hon'ble Supreme Court in Nikhil Super Specialty Hospital (supra) and has held as follows:-
"We place reliance on the judgment of the Hon'ble Supreme Court in V. Kishan Rao v. Nikhil Super Speciality Hospital & Anr., III (2010) CPJ 1 (SC)=V (2010) SLT 349=(2010) 5 SCC 513, wherein it is stated that the expert opinion is not mandatory while adjudicating a Complaint of medical negligence. There is no whisper in the Medical Record regarding the reasons for the infection having set in and if this is a known complication what steps have been taken during that period."
Thus, from the principles laid down by the Hon'ble Supreme Court as referred to above, it is not necessary for the Consumer Fora to call for a report from an Expert Body or a Medical Board in each case.It has to exercise its discretion after considering the material and evidence on record.
From the material on record I find that the following prescription, investigation reports and other documents relating to the treatment of Mr. Indrajit Sarkar son of Mr. Ranjit Sarkar, Complainant herein, who had died while he was undergoing treatment, were referred:-
USG Abdomen MRI Dorso Lumbar Spine - 11.07.2014 CT Dorso Lumbar Spine - 11.07.2014 CT Dorso Lumbar Spine - 11.07.2014 (Full data set with HU value) CT Abdomen - 12.07.2006 with HU value CT Abdomen - 12.07.2014 CTPA - 12.07.2014 TLICS classification in the, "Campbell's Operative Orthopaedics, Vol. 2, 11thEd (International)"
Article 'Incidental Extra Spinal Findings at CT Lumbar Spine on Wide Field of View Reconstruction' by Tom Sutherland et al J. Spine, Neurosurg 2013 2:4 Article "Extraspinal Findings on Lumbar Spine MR Imaging" -- by Daniel E Meltzer < > Article, 'Prophylaxis of Deep Venous Thrombosis in Trauma Patients' by Jonas P DeMuro etit Article 'Extra spinal Findings on Lumbar Spine MR Imaging' by Nathalie V Gebara et al;
Article "Adrenal Haemorrhage" by Nicholas A. Tritos Article: 'Blood in the Belly: CT Findings of Hemoperitoneum' (Radio Graphics 2007; 27:109-125) by Meghan Lubner] < > Article "Renal Vein Thrombosis" by Dr. Matt A. Morgan and Radswiki er al.
< >< >< > The Complainant brought our attention to the order of Penal and Ethical (P & E) Committee of West Bengal Medical Council which held, vis-à-vis, the medical negligence on the part of the Doctors as follows:-
(i) Failure to understand the significance of abdominal pain for a trauma patient which can be fore-runner of I .A, Injury ie Hemo-peritonium or Retroperitoneal Haemorrhage.
(ii) Delay in doing C.T Scan which could detect early Haemorrhage in Abdomen or Retro-peritoneum.
(iii) Starting of LMWHs (Inj, Clexane, Hep-5000 IU, Bep-5000 IU) without proven evidence of PTE.
(iv) Medico-legal and Post-Mortem was not advised.
(v) Report of D-Dimer assays appears fraudulent.
I find that learned Member Dr. S.M. Kantikar has dealt with each of the aforementioned evidence/documents/material which were brought on record as follows:-
"69. It is apparent from the medical record that, on 10.07.2014 the patient was examined by the Emergency Medical Officer (EMO), Dr. Subodh Kumar and advised X-Rays and relevant investigations. We note that the Complainant intelligently brought out certain facts of this case for his own convenience, though it was not a case of Blunt Abdominal Trauma (BAT). The Complainant categorically stated that his son had actually walked down to the Emergency department without use of a wheelchair or stretcher which proves the patient had no severe abdominal and back pain. However, the x-rays revealed mild anterior wedging of D11- D12 vertebrae and therefore the EMO promptly referred the patient to the Orthopedic Surgeon, Dr. Ravi Bharadwaj, the Opposite Party No. 2. Therefore, the allegation of deficiency in rendering medical service to the patient in the emergency is not sustainable, as made on surmise and conjuncture. In our view, the doctors have done, which they were expected to do at the given situation.
70. The fall in Haematocrit (Hct) and Haemoglobin from 15.2 g% to 13.8g% and 12.6g% within 36 hours after admission was expected because of hemo-dilution occurs after administration of two litres of IV fluid to treat the sudden hypotension. In the instant case the CT scan findings suggested Adrenal haemorrhage which was just limited to Adrenal parenchyma and it was not massive. Therefore, fall Hb% in any manner relates to scanty Adrenal haemorrhage. However, subsequent haemoglobin levels were stable on 12.07.2014, despite the patient receiving large quantities of Intravenous fluids.
71. The learned counsel for the Opposite Parties filed 35 plates / films of USG, CT- MRI and CTPA on record as mentioned as below:
Packet No Description Exhibit 1 USG Abdomen OPW1/3 (1 plate) 2 MRI Dorso Lumbar Spine - 11.07.2014 OPW1/5 (4 plates) 3 CT Dorso Lumbar Spine - 11.07.2014 OPW1/7 (3 plates) 3A CT Dorso Lumbar Spine - 11.07.2014 (Full data set with HU value) OPW1/10(15 plates) 4 CT Abdomen - 12.07.2006 with HU value OPW1 (4 plates) 4A CT Abdomen - 12.07.2014 3 plates 4B CTPA - 12.07.2014 5 plates We have perused all the films and reports. It is pertinent to note that the patient was admitted in the evening on 10.07.2004, the USG,CT,MRI done on 11.07.2004, none of the films shows any signs of haemorrhage or abdominal fluid collection. However, subsequently the CT abdomen and CTPA done on 12.07.2004 revealed moderate ascites (around 500 ml), with low HU values, it was conclusively not blood. In our view it was not a Hemorrhagic / Hypovolemic shock in the instant case.
72. Whether the Opposite Party No. 2 adopted wrong line of treatment in the instant case?
We have perused the entire medical record and the affidavits of evidence filed by the doctors. The Opposite Party No. 2 - Dr. Ravi Bharadwaj is an Orthopaedic Surgeon having experience of 18 years. The patient was admitted in the ILS Hospital on 10.07.2014 at 6.25 p.m. The EMO examined him, advised certain Blood & Radiological Investigations and started the treatment. The Spinal X-Rays showed a mild wedge compression fracture of the Dorsal 11 and 12 vertebrae. For the assessment of Thoraco-lumbar fractures of the spine we have gone through the TLICS classification in the, "Campbell's Operative Orthopaedics, Vol. 2, 11thEd (International)". The points to be considered are (I) the fracture mechanism, (2) the integrity of the posterior ligament complex and (3) the neurological status of the patient. The fracture is determined from plain radiographs and CT Scans, the neurological involvement and the condition of the posterior ligamentous complex is determined by physical examination including plain radiographs, CT and MRI. The Opposite Party No. 2 assessed the patient properly and made referral to the Surgeon, Neurologist and Cardiologist for further assessment and treatment. It was the correct line of treatment and accepted medical practice.
73. Whether the treating doctors failed to detect injuries to the Intra-Abdominal Organs?
We note there was neither injury nor haemorrhage intra-abdominally because:
(i) As per the Complainant's submission, the CT and MRI of Dorsal Lumbar spine covers only lower back. However, the Radiologists Dr. Sharmishtha Guha who conducted CT and MRI scans of the dorso lumbar spine stated in her report and affidavit, that she viewed the extra spinal structures around the Lumbar Spine like Intra-Abdominal and Retroperiteal structures. The Radiologist as a usual practice across the globe examine and note the incidence of extra spinal findings. Dr. Sarmistha Guha filed a reference article 'Incidental Extra Spinal Findings at CT Lumbar Spine on Wide Field of View Reconstruction' by Tom Sutherland et al J. Spine, Neurosurg 2013 2:4, which categorically observed that ''The detection of incidental findings beyond the region of interest is well known and has been explored for a number of imaging examinations."
(ii) We have gone through another article "Extraspinal Findings on Lumbar Spine MR Imaging" -- by Daniel E Meltzer. The relevant text is reproduced as below:
''Genitourinary extraspinal findings include adrenal masses, renal masses, renal infarct, by hydronephrosis, renal cysts, developmental renal anomalies and bladder anomalies.
Gastrointestinal extraspinal findings may include various pathology of the liver, biliary system, gallbladder, intestines or spleen. Colon cancer will often appear as an area of focal or segmental mural thickening.
Extraspinal findings in the muscoskeletal system may include abnormalities of the paraspinal musculature or the bony pelvis. Retroperitoneal haematoma may present as a complex heterogenous intensity mass."
Thus, in our considered view, if there had been any intra-abdominal soft tissue injury leading to collection; it would have been easily detected by the Radiologist. We also note that it was confirmed after discussion between Opposite Party No. 4 and the Radiologist that there was no organ injury or abdominal collection.
74. It is pertinent to note that Dr. Prasun Halder performed bedside ECHO in the night on 11.07.2014 showed "right ventricular free wall hypokinesia, right ventricular systolic dysfunction and dilated pulmonary artery along with IVC (Inferior Vena Cava) of 16 mm with sluggish respiratory variation combined with hemodynamic instability, the findings raised a very high degree of suspicion of PE and thus patient was treated accordingly and CTPA was planned after stabilization. As Thus in our view at that stage advice for ECHO was essential not to rule out PE alone but also to know about Left Ventricle function, to rule out Acute Myocardial Infarction, IVC measurement for guidance of fluid therapy which is the gold standard. In our view Dr. Prasun Halder on considering the patients clinical signs such as obesity, on-going immobilisation and hypoxia had correctly advised intensive spirometry post haemodynamic stabilisation and ruled out pneumothorax by Chest X-Ray. Thus, the patient was treated with the accepted medical protocol. We would like to quote a reference from the standard medical books 'Harrison's Principles of Internal Medicine, 19th Ed., Vol. 2' as well as 'Oh's Intensive Care Manual, 7thEd.' wherein states that:
''Echocardiography has its best application in haemodynamicaliy unstable patients, where it can be rapidly brought to the patient. If the patient has RV dilation and hypokinesis in the right clinical setting, PE is extremely likely...if there is RV dilation but no visible embolus, then a CTPA scan is required depending on how unstable the patient is...''
75. Whether Injection Clexane was contraindicated in this case?
(i) The Complainant alleged that the doctors were in lack of medical knowledge and expertise while advising injection Clexane to the patient when there was intra-abdominal continuously active bleeding from the ruptured left Adrenal gland. It is apparent from the medical record that that on 11.07.2014 Dr. Prasenjit Sarkar advised Injection Clexane and the patient received only one dose of Inj. Clexane at 10:00 p.m. on 11/07/2014. Though Inj. Arixtra was prescribed by Dr. Prasun Halder was never administered to the patient. The further injection Clexane (LMWH-Enoxaprin) was to be given only after confirmation of no abdominal collection by the Opposite Party No. 2 and 4. As the treating doctors had strong suspicion with provisional diagnosis of Pulmonary Embolism needs anticoagulant therapy. Therefore the use of LMWH is a standard medical protocol. It would be relevant to go through the article, 'Prophylaxis of Deep Venous Thrombosis in Trauma Patients'by Jonas P DeMuro etit has been aptly highlighted as below:
''The most recent guidelines to address prophylaxis VTE in the trauma patients were published in 2012 from the American College of Chest Physicians (ACCP). They suggest that for major trauma patients... the use of LMWH or mechanical prophylaxis preferably...
LMWH should be instituted when primary haemostasis has occurred and is the method of choice to provide DVT prophylaxis in the high risk trauma patients.
At the most institutions, the LMWH prescribed is enoxaparin (Clexane).
"The presence of complete spinal cord injuries....or the presence of a retroperitoneal hematoma associated with pelvic fracture, do not by themselves contraindicate the use of LMWH prophylaxis as long as the patient has no evidence of active bleeding.'' Further observations in the same article that;
"Obesity is an important independent risk factor for thrombosis and VTE is common in obese patients. Obesity is regarded as prothrombotic state. LMWH has theoretic advantages in obese patients as a result of superior subcutaneous bioavailability... However even LMWH at standard fixed doses may not be sufficient to preview VTE in morbidly obese patient.
Thus, the decision to administer Clexane in the instant case was justified and it was not wrong decision or negligence. It is pertinent to note that Dr. Prasenjit Sarkarthought the risk of DVT and PE in the obese patient and started immediately the mechanical prophylaxis by sequential compression device (SCD) and advised to consider LMWH (Inj. Clexane). It was after ascertaining there was no bleeding in spine and abdomen and after due confirmation by Dr. R. Bharadwaj and Dr. Devraj Roy. In our view, Dr. Prasenjit Sarkarhas followed the standard protocol. It is pertinent to note that on 12 07.2014 CT abdomen revealed filling defect in Lt Renal Vein (venous phase) due to Thrombus, which is also a deep vein thrombosis (DVT) and needs most appropriate treatment by LMWH (Inj. Clexane).
76. Whether there was considerable delay in conducting the CTPA as alleged by the Complainant?
From the medical record and the affidavit of Dr. Prasenjit Sarkar, it is evident that he had discussion with patient's relatives in detail regarding the risk involved in conducting CTPAand he even spoke to two independent doctors of the complainant's choice (Dr. Partha Sen and Dr. Paromita Trivedi) after which only the consensus was to go ahead with CTPA. He further spoke personally to the Radiologist and hospital authority to conduct CTPA and CT abdomen. During CTPA, Dr. R. Bharadwaj and Dr. Prasun Halder were present inside the CT room wearing lead aprons and continued patient ventilation with Bain's circuit.
We further note that the CTPA was advised in the night on 11.07.2014 and the series of blood and radiological investigations were done. The patient's family members expressed their intent to get the patient discharged against medical advice (DAMA) and to shift the patient to Fortis Hospital in the early hours on 12.07.2014. Therefore, the ILS Hospital initiated process of discharge in the nigh but representative of Fortis Hospital did not accept for shifting suchcritical patient. Therefore the patient was re-admitted in ILS Hospital, during the process, valuable time was wasted. Thus due to initial reluctance of patient side and after much persuasion the pending CTPA was performed in the afternoon on 12.07.2014. The complainant concealed these facts in his pleadings. We are of view that the Complainant's allegation of delay in performing CTPA is not sustainable.
77. Whether is it possible to detect intra-abdominal/ retroperitoneal injury and/or haemorrhage by CT and MRI of Dorso-lumbar spine?
Yes, Radiologist can detect it, the discussion as below:
On 11.07.2014 at around 2:00 p.m. the patient's MRI of the Dorso Lumbar Spine was done that revealed "Acute compression collapse of D12 vertebra without significant encroachment into spinal canal; Mild disc degenerative disease at L5-S1 level, mildly compromising both neural foramina, without significant compression over exiting nerve roots." In addition Dr. Sarmistha Guha noted that ''No abnormal pre or paravertebral soft tissue seen. Minimal peri-hepatic and peri-splenic fluid signal seen."
Thereafter at 3.00 p.m.CT scan of the Dorso Lumber Spine was done by Dr. Sarmistha Guha, wherein it revealed "Compression collapse of upper end plate of D12 vertebra without encroachment into spinal canal.'' The presence of minimal dependent pleural effusion was also noted and minimal free fluid was seen in the infra hepatic space. The Radiologist, Dr. Sarmistha Guha also reported focal tiny calcification in segment VI of liver. Had there been any abdominal or retroperitoneal injuries or haemorrhage, it would have been noted by the Radiologist especially when she made the effort to note even a tiny calcification in the liver.
Thus, Dr. Sarmistha Guha had thoroughly and carefully examined the Intra thoracic, Intra-abdominal and retroperitoneal tissues and organs and reported the relevant findings of these structures besides the bony injuries. The CT and MRI done on 11.07.2014 itself suggests that there was no signs of any intra-abdominal or retroperitoneal injuries including haemorrhage as even the minimal free fluid in infra hepatic space was of low attenuation (<15 HU).
It is important to note that when a patient was already undergoing a CT Scan of Dorso-lumbar spine region, which also gives a clear view of the other extra-spinal organs / region, thus it does not always requiresadditional CT Scan of the whole abdomen. On the contrary, doing so would mean exposing the patient to additional harmful radiation to the patient. As stated in the same article by Tom Sutherland et al that "The potential benefit of identifying major pathologies is substantial, and given that wide field of view reconstructions can be generated from the original data set with no additional radiation to the patient, these should be routinely provided for review.'' In another article 'Extra spinal Findings on Lumbar Spine MR Imaging' by Nathalie V Gebara et al observed that:
"Genitourinary extra spinal findings include adrenal masses, renal masses, renal infarct, by hydronephrosis, renal cysts, developmental renal anomalies and bladder anomalies.
Gastrointestinal extra spinal findings may include various pathology of the liver, biliary system, gallbladder, intestines or spleen. Colon cancer will often appear as an area of focal or segmental mural thickening.
Extra spinal findings in the muscoskeletal system may include abnormalities of the paraspinal musculature or the bony pelvis. Retroperitoneal haematoma may present as a complex heterogenous Intensity mass.'' As observed in both the articles as the CT and MRI Scan of Dorso Lumbar Spine give sufficient information about the abdomen, and thus there was no need for separate advice for a CT abdomen.
Therefore, it is apparent that on 11.07.2014 patient was investigated by USG abdomen, CT scan and the MRI scan of Dorso Lumbar spine. All the reports did not show any injury to the Adrenal gland or any signs of intra-abdominal or retroperitoneal haemorrhage.The normal weight of Adrenal is approx. 2.5 grams and in the instant case there was scanty parenchymal localised haemorrhage. It was not active bleeding. All the allegations of complainant about the continuous bleeding from ruptured Suprarenal artery from the time of admission is not acceptable. These allegations are just on surmise and conjecture without medical basis. The Complainant made vain attempts and chosen selective words from the CT scan report (12.07.2014) to highlight ''adrenal haemorrhage''. Thus Complainant filed this complaint with twisted facts.
78. The moderate intra -abdominal fluid noted on 12.07.2014, whether it was haemorrhage or ascites?
We have perused the films of CT abdomen done on 12.07.2014 showed moderate ascites and not blood. There was only isolated localized haemorrhage in the left adrenal gland, which is considered to be of little significance by medical literature.Even this minimal left adrenal haemorrhage, which was absent on the 11.07.2014 but is seen on the CT abdomen films done on 12.07.2014, can be rationally explained in the context of the vascular anatomy of the left adrenal, shock state following pulmonary embolism, treatment with drugs like adrenaline to support the patient's falling blood pressure and presence of renal vein thrombosis.
In this context it is worth referring to the article "Adrenal Haemorrhage" by Nicholas A. Tritos in wherein it was observed:
"Although the precise mechanism leading to adrenal haemorrhage are unclear in nontraumatic cases, available evidence has implicated adrenocorticotropic hormone (ACTH), adrenal vein spasm and thrombosis, and the normally limited venous drainage of the adrenal in the pathogenesis of this condition. The adrenal gland has a rich arterial supply, in contrast to its limited venous drainage, which is critically dependent on a single vein. Furthermore, in stressful situations, ACTH secretion increased, which stimulates adrenal arterial blood flow that may exceed the limited venous drainage capacity of the organ and lead to haemorrhage. In addition, adrenal vein spasm induced by high catecholamine levels secreted in stressful situations and by adrenal vein thrombosis induced by coagulopathies may lead to venous stasis and haemorrhage. Adrenal vein thrombosis has been found in several patients with adrenal haemorrhage, and it may occur in association with sepsis, heparin-induced thrombocytopenia...'' To know more about the utility of CT scan in Hemoperitoneum, we have gone through article: 'Blood in the Belly: CT Findings of Hemoperitoneum' (Radio Graphics 2007; 27:109-125) by Meghan Lubner].
The CT scan is known for highly sensitive investigation which detects and differentiates the small quantity of effusion or blood in the peritoneal cavity. The Radiologists are competent to interpret the CT signs and findings of haemoperitoneum, including a sentinel clot, active arterial extravasation, and mesenteric fluid. It is possible for the Radiologist to locate sources of intraperitoneal haemorrhage and help direct management. The Attenuation measurements of fluid during CT will help to differentiate among simple ascites, unclotted blood from recent bleeding, hematoma, bile, urine, chyle, and active bleeding. The attenuation values of fluids that have approximately the same density as water range from 0 to 15 HU whereas blood usually has higher measured attenuation than other body fluids. Unclotted extravascular blood usually has a measured attenuation of 30-45 HU and that of clotted blood is 45-70 HU, It is to be noted that the highest-attenuation hematoma, or sentinel clot, is that closest to the site of bleeding and is useful for identifying the dominant source of hemoperitoneum in patients with multiple injuries from trauma. A focus of active bleeding may appear as a serpiginous or amorphous high-attenuation area intermixed with or surrounded by a large hematoma. In the instant case there was no such finding or presence of high attenuation of fluid in the abdomen that would indicate bleeding into the abdomen after his injury.
As stated in the article, there are numerous causes of hemo-peritoneum in both traumatic and non-traumatic settings. CT is the imaging modality of choice because of its ability to help distinguish blood from other fluids. The crucial initial steps for the radiologist are to use the various CT signs to detect the presence of intraperitoneal blood, locate the source of haemorrhage, and determine whether emergent intervention is indicated.
In the instant case on 11.07.2014 patient's CT Scan of Dorso lumbar Spine revealed just minimal free fluid collection in infra-hepatic space. The finding was not confirmatory of any solid organ injury or haemorrhage in the peritoneal cavity or retroperitoneal space. It was low attenuation of the free fluid<15 HU. The next CT Abdomen done on 12/07/2014 revealed just localised collection with layering of densities (HU - 63) in the left Adrenal gland. It was specifically suggested as haemorrhage, whereas free fluid in rest of the abdomen has been reported as moderate ascites as its attenuation was low (<15 HU), nowhere it was matching with the high attenuation of blood or of extravasated contrast. Thus it was not active bleeding. Thus on 11.07.2014, the intra-abdominal or retro-peritoneal or left adrenal gland haemorrhage was ruled out.
79. The contention of the complainant that his son's life could have been saved had he been receiving blood transfusion owing to the excessive blood loss as a result of alleged intra-abdominal haemorrhage is a clear indication of the complainant's lack of knowledge in the field of medicine. The patient was admitted with a Haemoglobin level of 15.2gm% and his Haemoglobin level was 12.6gm% in the morning of 12.07.2014. Haematocrit level was 40 at 1:30 a.m. on 12.07.2014 which dropped to 37 at 5.30a.m. on 12/07/2014. It is pertinent to note that the patient had a drop in Haemoglobin of 17% or Haematocrit of only 3 (7.5%) which in medical parlance, is not significant enough to cause sudden death of a patient. As per 'The Washington Manual of Surgery', 6th Ed., if it was haemorrhage, it correlates with Class II haemorrhage. The massive fluid resuscitation is also one of the causes for fall in Hb%. Further, in class II haemorrhage blood transfusion also not advised. In this context the relevant observation made by Guillermo Gutierrez et. al in their article "Clinical Review: Hemorrhagic Shock that" - 'A hemoglobin level of 7-8 g/dL appears to be an appropriate threshold for transfusion in critically ill patients with no evidence of tissue hypoxia. However, maintaining a higher hemoglobin level of 10 g/dl is a reasonable goal in actively bleeding patients, the elderly or individuals who are at risk for myocardial infarction. 'In the instant case, the patient's Hb% was above 10 gm%; therefore, there was no question of blood transfusion. For the convenience, the Table 22-1 from "The Washington Manual of Surgery" is reproduced as below:
Class I Class II Class III Class IV Blood Loss (mL) Upto 750 750-1500 1500-2000 >2000 Blood Loss (% blood volume) Upto 15% 15%-30% 30%-40% > 40% Pulse rate < 100 > 100 > 120 > 140 Blood pressure (mm Hg.) Normal Normal Decreased Decreased Pulse pressure (mm Hg.) Normal or Decreased Decreased Decreased Decreased Urinary output (mL/hr) >30 20-30 5-15 Negligible
80. In our view the clinical and radiological findings were suggestive of Pulmonary embolism (PE) as suspected by the treating doctors.
The Complainant's allegation about unnecessarily 14 blood investigations were advised by Dr. Prasenjit Sarkar is not sustainable. We note that based on the clinical acumen and patient's signs those tests were advised to rule out PE in the instant case. It was as per accepted medical practice. The CTPA and CT whole abdomen done on 12.07.2014 revealed presence of thrombus in the left Renal vein with localised left Adrenal haemorrhage. The (Lt) Adrenal haemorrhage might be due to increased venous-pressure because of thrombus in Lt renal vein. As such, Adrenal gland has unique nature of blood supply. It has abundant arterial supply but only single venous drainage and left adrenal vein, which drains into left renal vein. In certain stressful condition or due to high dose of catecholamines, the venous pressure drastically increases. In the instant case, there was left adrenal vein obstruction which was unable to drain into left renal vein due to suspected thrombus. The patient sustained trauma over lower back more on the left side which lead to Left renal vein thrombus leading to isolated localized left adrenal haemorrhage due to increased venous pressure. The allegation of the complainant that CTPA did not show PE is technically incorrect. The presence of thrombus in Left renal vein was sufficient proof of thromboembolic manifestation because the commonest complication of renal vein thrombosis is PE. The trauma is one of the most important causes of renal vein thrombus. An article "Renal Vein Thrombosis" by Dr. Matt A. Morgan and Radswiki er al. categorically states that:
'...trauma is another potential cause of renal vein thrombosis. Complications include pulmonary embolism, renal atrophy, and papillary necrosis. Bland thrombus can coexist with tumour thrombus... As with venous thrombosis elsewhere, the thrombosis is observed as a filing defect during venous phase imaging following intravenous contrast... Recognised complications of RVT include pulmonary embolism...''
81. As per the standard text books on Surgery the isolated adrenal injuries are uncommon and can be relatively benign and self-limited. Moreover the 'Unilateral adrenal hematomas usually resolve spontaneously, without any sequelae.' [Ref article: "Traumatic Retroperitoneal Injuries: Review of Multi-detector CT Findings" (RadioGraphics 2008; 28:1571-1590) by Kevin P. Daly et al. 'Multidetector CT of Blunt Abdominal Trauma' by Jorge A, Soto et al in (Volume 265: Number 3 - December 2012),] Therefore conservative management of such patient was the accepted standard of practice.
82. Discussion on various reports (WBMC PE-8 Committee, MCI and Govt DHS) We have carefully perused (i) the inquiry report issued by Directorate of Health Services, Government of West Bengal, Calcutta dated 17.03.2016, (ii) the report given by PE-8 committee, West Bengal Medical Council and (iii) the Order of MCI in the appeal No.MCI-211(2)90 preferred by the Complainant before the Medical Council of India.
83. The final Inquiry reportissued by Directorate of Health Services, Government of West Bengal, Calcutta, is reproduced as below:
Late Indrajit Sarkar (36 yrs/ H/ M), s/o Sri Ranjit Sarkar of 9-B, Northern Avenue, Kolkata - 700037 was admitted at the ILS Hospital - Dumdum on 10.07.2014 at 6.28 pm with a history of accidental fall at home and complaining of severe pain in lower back. Indrajit Sarkar had past history of hypertension on medication and no known drug allergy. He was initially admitted under Dr. Ravi G. Bharadwaj (Orthopaedic Surgeon) and subsequently seen by other specialists viz. Dr. Prasenjit Sarkar (Critical Care consultant), Dr. Devraj Roy (General Surgeon), Dr. Prasun Halder (Clinical Cardiologist) and Dr. Sarmistha Guha (Radiologist) on several occasions during the patient's stay in the hospital till his death on 12.07.2014 at 7.05 pm. The cause of Death in the Death Certificate issued by the ILS Hospital, DumDum states:
Immediate Cause - Adrenal Haemorhage with Intra-abdominal collection and possible Pulmonary Thromboembolism;
Antecedent Cause - Fracture D12 vertebra Police information was not given in this case of Accidental Fall, nor was autopsy done after expiry of the patient. Not doing so on good faith in a case of accidental injury was unbecoming on the part of the Consultant Doctors as well as the ILS Hospital authority.
Aggressive fluid resuscitation was given without any C.V.P. (central venous pressure) monitoring.
In spite of Surgeon's clinical notes (marked tenderness in upper abdomen, more on left side, and left flank with mild distension of abdomen and decreased bowel sounds) and the USG report on 11.07.2014 stating poor field of vision, no steps were taken immediately to confirm the cause of rapidly deteriorating vital signs (hypotension hypoxia). There were possible errors of judgment in giving clinical directions in view of this observation.
Strong suspicion of Pulmonary Embolism was projected as a cause of the clinical outcome without any material evidence. The CT Pulmonary Angiography report too did not suggest any such finding.
In spite of Abdominal USG, CT Scan and MRI investigations on 11.07.2014, it was very unfortunate that Left Adrenal Haemorhage could not be diagnosed on the same day. And when the 2nd CT scan (CTPA) report on 12.07.2014 revealed Left Adrenal Haemorhage, the patient was already in a hemodynamically compromised state and it was too late for any further intervention. The delay in getting the CTPA examination done (as ordered by the attending doctor 11.07.2014 at 10.00 pm and till 2.45 pm on 12.07.2014 when the Adrenal Haemorhage was noted in the BHT) could be crucial in a rapidly deteriorating patient.
The Enquiry Team opined that:
The Medical Management and Medical Investigation Team concerned with the treatment of Late Indrajit Sarkar failed to diagnose the cause of abdominal pain in time in spite of the clinical findings of the Surgeon on 11.07.2014 morning and all the investigation facilities in the institute to diagnose such cause. The said teams' more aggressive efforts with a higher degree of suspicion to locate the cause of this abdominal pain could have diagnosed the cause (Adrenal injury and haemorhage) at a stage when the patient was relatively stable and thus could have given some opportunity to the patient to be treated in accordance with the diagnosis.
The casual attitude on the part of the concerned doctors and the ILS Hospital-Dumdum authorities in not informing the Police initially for an accidental case and not sending the body for an autopsy later is medico-legally an act of negligence.
84. The PE-8 Committee of WBMC issued a report on File No. 74-C/2014. The Committee examined the doctors namely Dr. Ravi Bharadwaj, Dr. Prasenjit Sarkar, Dr. Prasun Halder, Dr. Devraj Roy, Dr. Anirban Sarkar, Dr. Atul Vajpayee, Dr. Subodh Kumar (EMO) and Dr. Manoj Mistry. The WBMC after completion of deposition of above doctors sent a file to three experts for opinion namely Prof. (Dr.) Anandakishore Pal, HOD, Deptt. of Orthopaedic IPGME&R, Prof. (Dr.) Makhanlal Saha, Deptt. of Surgery, IPGME&R and Dr. Sugata Dasgupta, Associate Professor of Critical Care Specialist, RG Kar Medical College & Hospital, Kolkata. We note WBMC also sought an expert opinion from Dr. Sushil Ranjan Ghosal, Professor & HOD, Deptt. of Surgery, NRSMC&H. After going through the relevant documents lying with the file along with the deposition of complainant, accused doctors and expert opinion in various fields the PE Committee has come to the following opinion:
1. As it was not a natural disease process, on admission a Police Case should have been registered.
2. Patient should have been admitted / assessed by a General Surgeon first.
3. In a patient with multiple trauma injury / poly-trauma U S G examination immediately on arrival / admission is an international norm, which was not followed here.
4. CT Scan of abdomen & thorax was also delayed by more than 24 hours (in a setting where USG is inconclusive).
5. The copy of the report as received from the concerned hospital regarding D-Dimerassay appears fraudulent (date of report & stay of patient not matching Page - 329).
6. As CT abdomen pointed multiple pathologies (related to injury as in the case), not advising a medical autopsy / P M examination after death was highly unethical.
85. The Complainant preferred an appeal (No. MCI-211(2)90 (Appeal)/2014 before the Medical Council of India. It was held as below:
The above matter was considered by the Ethics Committee at its meeting held in 27th& 28th February, 2017. The operative part of proceedings of the said meeting is reproduced as under:
".....After perusing the statements of both the parties i.e. appellant and respondent doctors and the documents available in record, the Ethics Committee discussed the matter in detail and after detailed deliberation noted as under:-
1. Individually and collectively all the doctors failed to properly asses the condition of the patient.
2. They failed to have the required level of clinical suspicion about the condition of the patient and totally missed the significance of abdominal pain. Investigation findings of CT, MRI etc. and also failed to diagnose adrenal hemorrhage the delay in investigation points to deficiency in services.
3. There was significant delay in doing various investigations and initiating necessary treatment after tests.
The Ethics Committee further observed that all the facts mentioned above appears that the hospital and doctors have not continuously monitored the welfare of the patient. They only managed the crises as and when they appeared. The absence of team work and improper care lead to the unwanted demise of patient.
All the above points clearly indicates the medical negligence in the management of the patient on the part of the above treating doctors.
In view of above, the Ethics Committee unanimously recommended to remove the name of all the above doctors namely Dr. Atul Vajpayee (Neuro Surgeon), Dr. Ravi Ganesh Bharadwaj (Orthopaedic Surgeon), Dr. Devraj Roy (General Surgeon ), Dr. Prasenjit Sarkar (Clinical Cardiologist), Dr. Prasun Halder (Non-Invasive Cardiologist) and Dr. Anirban Sarkar (Pulmonologist) from the Indian Medical Register for a period of ONE YEAR.
86. We have noticed several lacunae in the reports. On the careful perusal of entire medical record and the combined reading of all the para (82 - 85 supra) we are not totally convinced about the findings which categorically affirm medical negligence of the Opposite parties.
Following lacunae noted in the reports:
(a) Not making a police report in respect of a patient who had a simple slip and fall at home cannot be a valid justification in holding the treating doctors as negligent, unless assault or foul play is suspected. Or any other history was forthcoming to that effect. Merely not informing the police authorities cannot be termed as negligence in treatment of the patient.
Conversely, there is noting which has come on record that if the contentions and allegations by father of diseased is considered, it was always open for the accompanying person or a close relative to report such an incident to the police if such a need exists.
(b) `Severe abdominal pain` has not been found to be complained of by the patient and neither seems to be communicated by the father of the deceased to any doctor and neither but more importantly was there any symptoms or signs of `severe abdominal pain`.
Further, suffice to note that abdominal USG and/or CT scan did not reveal any collection or bleed. Once the reports of the scans as above are negative, it cannot be said that doctors were negligent and missed pathology.
(c) `No serious efforts to identify the cause of deterioration` comment by the Council is without just or sufficient cause and appears to be made casually.
The notes as part of the proceedings speak for themselves and sincerity or otherwise can only be gauge by material on record pertaining to records kept and periodic referrals to specialists and medical treatment/intervention of any nature done as required.
Also, Per contra, nothing is specifically pointed out or highlighted by the Council committee to justify the lack of sincerity on part of the doctors.
(d) Despite repeated investigations/USG, CT ,MRI scans indicating no intra-abdominal collection, the Council continues to harp upon Intra-abdominal collection. The ascites seen subsequent appears to be secondary to possible pulmonary embolism and matches the bilateral pleural effusion emancipating from the same.
(e) Further, the Council has not commented as to how the practice of the doctor or treatment administered further has fallen short of expected reasonable treatment by a prudent doctor. They have not elucidated as to what treatment is usually carried out in such a condition to justify their finding of negligence and have failed to point out the existing standard of care in such a critical phase. Needless to mention, the clinical course of a patient in critical care is challenging to say the least, and the treatment as may be generally recommended may not be always able to rectify the situation.
(f) The Council has further failed to appreciate the picture in terms of basic anatomy i.e. that the adrenals are retro-peritoneal and not intra-abdominal and no such collection in the retro-peritoneal space has been diagnosed.
(g) The records upon findings of the receiving doctor i.e. Dr. Ravi Ganesh Bharadwaj is clear and succinct and nothing suspicious appears from detailed perusal of said records. Also the fact that the patient slipped and fell at home in the morning but was brought to hospital belatedly is noted.
(h) As is seen from the records made by Dr. Prasenjit Sarkar, it appears to have done timely radiological and other diagnostic tests and it is of note that USG specifically mentions absence of solid organ injury and no intra-abdominal collection.
(i) The Council seems to have misinterpreted subsequent moderate ascites found on CT scan which appears to have been performed in difficult and extenuating circumstances by transferring patient on a portable ventilator to the CT department during fragile cardio-vascular condition. The CT Pulmonary Angiography was suggestive of no detectable thrombus but showed peripheral narrowing of pulmonary artery suggesting pulmonary hypertension. The said pulmonary hypertension explains both the pleural effusion and moderate ascites found therein. Suffice to say that patient was on vasopressors and yet the blood pressure could not sustain pointing to Pulmonary embolism or ventilation-perfusion mismatch.
(j) Either way in such precarious set of circumstances, No active intervention was necessary and thus rightly not done. Further the Council has failed to suggest what exact intervention would be `reasonable` in that instance if it was a `prudent` doctor/surgeon treating this case. Thus, not intervening when there is no indication to intervene, cannot be termed negligent by any stretch of imagination.
(k) Merely because the blood pressure was not sustaining and multiple systems were failing, it is not that something can be always be done or improved, as medicine is inexact to a large degree.
(l) The Committee seems to be influenced by distended abdomen despite lack of guarding or rigidity as the case may be depending on the consciousness status of the patient. A paralytic ileus was suspected and patient in consequence was kept nil by mouth as is usually done to prevent more fluid from going down the intestines where peristalsis is slowed or stopped temporarily from shock.
(m) The opinion of the PE-8 committee has been examined minutely vis-à-vis the available records and evidence as produced, and with greatest respect to the authority, we find that the opinions so expressed are not ad rigour to standard accepted level of care in every case.
Whether a slip and fall at home which is not registered with the police is held as being `negligent in medical treatment` is debatable Whether a patient with fracture D12 vertebrae with no other associated history must routinely be advised USG is debatable.
It is matter of common practise that patients with spinal fracture is usually referred to the Orthopaedic surgeon in the first instance unless, there are other injuries or cardio-vascular instability to warrant admission under a general surgeon or a physician in the first instance. No doubt an orthopaedic surgeon or the first receiving doctor needs to evaluate the patient fully and thoroughly by using any recognised protocol but a referral may not always be necessary in absence of history or examination findings to warrant referrals. When in doubt, referrals must be done to competent colleagues, but the need and timing of referral is the prerogative of the first receiving or treating doctor.
Thus on perusal of the notes, there was nothing to indicate a polytrauma in the first instance and no suspicion or findings of any other injury to justify USG in the first place, especially when patient was stable haemodynamically.
87. It is surprising to note the observation made by Directorate of Health Services, Government of West Bengal, Calcutta and the PE-8 Committee of WBMCI on the hospital for not informing the Police initially for an accidental case and not sending the body for an autopsy later and held it as "medico-legally an act of negligence".
In this context, we have gone through the standard medical text books namely "Forensic Medicine & Toxicology - The Principles and Practice", by Krishan Vij; "Forensic Medicine & Toxicology for MBBS" by Anil Aggrawal; "Principles of Forensic Medicine and Toxicology" by Rajesh Bardale, MD, and gathered the relevant information about the Post Mortem.
The clinical or academic autopsy is one in which the medical attendants, with the consent of relatives, seek to learn the extent of the disease for which they were treating the deceased patient. In most jurisdictions, this type of autopsy should not be held to determine the nature of the fatal disease because, if this was unknown to the physicians, the death should have been reported for medico-legal investigation.
Medico-legal Autopsy:
The medico-legal autopsy, which is performed on the instructions of the legal authority responsible for the investigation of sudden, suspicious, homicide, suicide, obscure, unnatural, litigious or criminal deaths. This legal authority may be a coroner, a medical examiner, a procurator fiscal, a magistrate, a judge, or the police, the systems varying considerably from country to country.
The permission of relatives is not required.
Clinical Autopsy:
Done for academic purposes, research etc. No legal issue involved (also called hospital autopsy or pathological autopsy or consent autopsy). Permission of relatives is necessary.
Regarding the difference between forensic and clinical autopsy, the table 6.1 from "Principles of Forensic Medicine and Toxicology" is reproduced as below:
Table 6.1: Difference between forensic and clinical autopsy Features Forensic autopsy Clinical autopsy Synonyms Also called as postmortem examination or medicolegal autopsy Also called as pathological autopsy or academic autopsy Consent No consent is required Consent of relatives is must Conducted Conducted under legal authority Not so Requisition Requisition from legal authority is necessary No such requisition is required Procedure Autopsy is always complete The autopsy may be complete or incomplete (partial) depending upon the consent Aim
- To know cause of death
- To ascertain time since death
- To know manner of death
- To collect evidences etc. Performed to confirm the clinical diagnosis or to arrive at diagnosis In the instant case, at the time of admission to ILS Hospital on 10.07.2014,the patient himself alongwith his father i.e. the Complainant gave a history of fall in his house. They did not express any suspicious or any criminal events. Therefore, the Hospital did not register the case under MLC category. As discussed above, during the course of treatment, the team of treating doctors made all their efforts, but the patient could not survive. As it was not MLC case, the Post Mortem was not done. The Complainant could have lodged a police complaint to conduct Post Mortem, if he would have suspected any foul play or negligence during treatment. He also had a choice for clinical autopsy which he failed to exercise at that time.
CONCLUSION:
88. On careful perusal of sequence of events recorded in the entire medical record, it is to be noted that the patient suffered low backache and mild tenderness due to fall in his house and was taken to the ILS Hospital in the emergency department. He was immediately examined by the emergency medical officer and found that the vitals were stable and admitted the patient on 10.07.2014 under the consultant Dr. Ravi Bharadwaj (the Opposite Party No. 2). The x-ray of pelvis, LS spine (AP and lateral), CP and MRI Scan of Dorso-lumbar spine were advised as the x-ray report showed mild D11, D12 and L1 vertebral collapse. The Opposite Party No. 2 advised analgesia. On the next day at 8.30a.m., Dr. Ravi Bharadwaj examined the patient and found the abdomen soft with no tenderness. Thus, there were no symptoms of blunt abdominal trauma or internal bleeding. The blood and urine investigations were normal, haemoglobin was 15.2 gm/dl. He sent a call to the Opposite Party No. 4, a Surgeon, who assessed the patient and advised USG. The reports of USG, MRI and CT Scan did not show any solid organ injury and internal bleed. However, the cause of abdominal distension is known because of spinal trauma leading to pseudo obstruction of the colon. As noted in the CT and MRI done on 11.07.2014, the minimal free fluid in the infra hepatic space was <15 HU; thus it was show low attenuation. Therefore, it was not a haemorrhage. As per the standard literature and the evidence of consultant radiologist, Dr. Sharmishtha Guha, it is possible to view the extra spinal findings during CT Scan of dorso lumber spine and it is a usual practice across the globe adopted by the radiologist. Thus, the collective reading of the radiological investigations (USG, CT ad MRI) does not conclusively indicate that there was any abdominal or retroperitoneal injury and haemorrhage in the left adrenal gland.
89. In our considered view, it was not the case of haemorrhagic shock but the ECHO, Venous Doppler and other relevant investigations were in favour of suspected pulmonary embolism. Further it was indicated from the CTPA performed on 12.07.2014 wherein there was left renal vein feeling defect - thrombus and dilated pulmonary arteries. However, there was no evidence of extensive bleeding, but the CTPA noted localised left adrenaline haemorrhage without rupture of its cortex. It is very rare phenomenal of isolated unilateral haemorrhage. Such patients need conservative management and there is no specific treatment. Regarding fall in the haemoglobin from 15.2 gm percent to 12.6 gm percent was not due to any haemorrhagic pathology but it was due to fluid resuscitation during sudden hypotension wherein the patient was received more than 2 ltrs. of IV fluid. In the instant case, the trivial fall in haemoglobin was not a cause of death. We also endorse that the injection Clexane (LMWH) was necessary, thus advised by the Opposite Party No. 3. It was also cautioned by the Opposite Party No. 3 that it was to be given after the test reports by ruling out haemorrhage, also only after the Opposite Parties Nos. 2 and 4 agreed. The clexane was needed for thromboprophylaxis in the suspected case of PE. The Opposite Party No. 3 after performing 2D echo on 11.07.2014 night came to the conclusion that it was suggestive of PE and not hypovolemic shock. (In this context - reference from European Heart Journal- Well's Score).
90. The patient attendants were desirous to shift the patient to Fortis Hospital and requested the Opposite Party No. 1 Hospital for DAMA. In the late night of 11.07.2014, the patient had not given consent for CTPA to shift the patient to Radiology department to know the reasons of hypotension. This fact was suppressed by the Complainant in his complaint. The representative of Fortis Hospital examined the patient, but they refused to accept the patient post DAMA on 12.07.2014. Therefore, the valuable time was lost and the CTPA was delayed. Thus, it cannot be attributed to the negligence of the hospital. It shows the conduct of the Complainant who suppressed this fact in his pleadings.
91. Moreover, the allegation that due to fall, the patient suffered AKI (Acute Kidney Injury) is not acceptable. As after the fall in the house the patient passed urine. From the Input-Output chart the patient had bedwetting. The renal function the blood Urea and Creatinin were within normal limits. On careful perusal, we also note that the D-dimer report was not forged as the print out was due to instrumental printing error. It was a human error wherein the date and time was not calibrated properly but it was of the instant patient only. The death of patient was a natural consequence due to sudden hypotension because of thrombo-embolic aetiology. The patient was admitted due to fall in the house, there were no suspicious circumstances and the Complainant did not lodge any complaint before Police to make it MLC. Thus, Post Mortem was not done. If the cause of death was suspicious the Complainant should have insisted and gave a Consent for Pathological Autopsy (also known as Consent autopsy) to find out cause of death.
92. The attitude / intention of Complainant is quite apparent from the complaint that the Complainant herein has used a litany of words and phrases in his pleadings and arguments which far from creating an impression upon us is acting rather to the contrary. It also demonstrates the extent to which a litigant can go to ramp up his grievances and complaint in misplaced attempt to influencing a judicial decision in his favour. He could not be more wrong. At the outset, such a practice is strongly deprecated. In several cases, while acting in zeal to present the case in a way which appears to most damning against the medical professional, some litigants or their representatives seem to be losing sight of what damage, distress or mental stress that they cause to the treating physicians who are equally affected by uncensored choice of words to describe them. It should be borne in mind that whether in this particular proceeding, there is negligence or otherwise is a question of the peculiar facts, the circumstances of the case supported by relevant evidence presented by both parties before any competent forum. Herein, the Consumer courts or other Hon`ble Courts as the case may be, are the sole adjudicating authority in what can or could be considered as negligence or otherwise.
93. It is settled view, that, "The Consumer Protection Act should not be 'a halter round the neck' of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death", as observed by the Hon'ble Supreme Court in Kusum Sharma and others v. Batra Hospital and Medical Research Centre and Others (2010) 3 SCC 480. The Hon'ble Bench further stated that 'doctors in complicated cases have to take chances even if the rate of survival is low. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act.' Thus the Bench stated that, 'Courts have to be extremely careful to ensure that unnecessarily, professionals are not harassed and (or else) they will not be able to carry out their professional duties without fear. 'it is the matter of common knowledge that after some unfortunate events, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closed linked with the desire to punish.' In the said judgment, the Hon'ble Supreme Court held that the medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals".
94. In the instant case, we note with great concern mixed with some amusement how the aggrieved party (Complainant herein) has vicariously addressed the treating doctors.We have perused the IA No. 20049/2018 filed by the Opposite parties. We note that in the pleadings the Complainant has made number of derogatory, defamatory allegations, disparaging remarks and inflammatory statements about the doctors' qualifications and competence, may we add without justification and such as below to point out a few:
< >horrendous mal-treatment by abysmal incompetent 6 treating doctors of ILS Hospital" < >< > "..Patient wasvirtuallyleftto diein theI. C. UwithoutanyTreatment in hospital ....", and followed further by an equally stunning but contrary statement viz., "...possibleerrors of judgment in giving clinicaldirections....."
The choice of words used as above saddens us. By making medical treatment sound medieval, draconian and torturous, and by making unpalatable and in the instant case, entirely unjustified comments to embellish the argument to show as if there was `a conspiracy amongst the treating doctors for murdering the patient`, does not impress us at all. The element of negligence or lack of it is as discussed above a matter of fact, record and evidence and this forum is certainly competent to separate the grain from the chaff for a well-reasoned judgment.
95. Suffice to say that such abusive choice of words used in pleadings and arguments hardly carry weight, and, on occasions may become counter-productive and may back-fire and fail. Further such profanities and unwarranted allegations do not fool anybody, least of all the adjudicating authorities. Suffice to say that a complainant raising his grievances in a scientific manner and pointing out specific areas of negligent conduct vis-à-vis the acceptable standard of care with specific evidence are the vital ingredients needed for proving such a plaint, but scurrilous and reckless sweeping allegations made in a an inflammatory tone and defamatory spirit are neither appreciated nor helpful in adjudication of cases. Suffice to say that, complainants and their representatives need to be circumspect and keep the decorum and the tone and tenor of their plaint to resonate with proving the issues rather than merely character assassination. We note with increasing concern, the derogatory nature of language and improper choice of words levelled in proceedings filed against doctors. If it becomes increasing so, the day may not be far off when medical professionals fed up of constantly being barraged with unsavoury language may decide to take contrary action for acts of defamation for safeguarding their reputation built up painstakingly over the years who form a vast majority of such professionals.
96. To succeed Medical negligence claim, the patient/complainant has to prove three elements (3 Ds), whereby a Duty of doctor's care is owed to a patient and as a consequence of a breach of that duty (Dereliction) (causa causens), the patient suffers Damage-injury. The Hon'ble Supreme Court in reference to medical negligence delivered catena of judgments. We would like to rely upon the following judgments. In the case "Jacob Mathew vs. State of Punjab & Anr." AIR 2005 SCC 3180 it was held that the Complainant is required to prove that the doctor did something or failed to do something which is the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do. Similarly in other judgements namely, Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr., AIR 1969 SC 128 and A.S. Mittal vs. State of U.P., AIR 1989 SC 1570, it was laid down that when a Doctor is consulted by a patient, the former, namely, the Doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor.
97. In Achutrao Harbhau Khodwa Vs. State of Maharashtra, 1996 Vol 2 643 the Hon'ble Supreme Court has held:
"The skill of medical practitioner differs from doctor to doctor. The 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 a 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."
In the instant case the Complainant's main grouse was that his son (patient), due to fracture of D11 & D12, suffered injuries to intra-abdominal or retroperitoneal organs and active bleeding in the abdomen. The death of patient was due to haemorrhagic shock. However, in entirety the clinical findings and the investigations did not confirm any evidence of intra-abdominal active bleeding. Though the CTPA showed localised intra parenchymal bleed in the left Adrenal gland, it was not severe bleeding. The patient was examined / investigated and treated by experienced Orthopedician, Surgeon, Radiologist, Cardiologist and Neurologist. There we find duty of care and the treatment given was as per the accepted norms. There was neither breach nor any deviation of standard of practice from any doctor.
98. Our view dovetails from the ratio laid down by the Hon'ble Supreme Court in the case of Samira Kohli vs. Dr. Prabha Manchanda & Anr.(supra), wherein it was held that:
"it is for the doctor to decide, with reference to the condition of the patient, nature of the illness and the prevailing established practices as to how much information regarding the risk and consequences should be given and how they should be couched in the best interest of the patient. A doctor acting accordingly with normal care and in accordance with a recognized medical practice cannot be said to be negligent merely because body of opinion taken a contrary view. In modern medicine and surgery dissection of the various things a doctor has to do in the exercise of his whole duty of care owned to his patient is neither legally meaningful nor medically practicable."
In this instant case we find that the team of doctors treating the patient decided the mode of treatment on the basis of clinical examinations, condition of patient, laboratory and radiological investigations. Thus, we find it was a standard duty of care. The team of doctors attended the patient with due care and diligence.
99. Similarly, the Hon'ble Supreme Court in reference to medical negligence in the case of Jacob Mathew Vs. State of Punjab & Anr. 2005 (6) SCC 1, directly applicable in the present case, where it says:
"The subject of negligence in the context of the medical profession necessarily calls for treatment with a difference.........There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it.........An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. 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. The 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."
100. In the case, Maynard v. West Midlands Regional Health Authority the words of Lord President (Clyde)inHunterv.Hanley, 1955SLT 213 were referred to and quoted as under:-
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men...The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...".
101. We would further like to quote the noted paragraphs from the Hon'ble Supreme Court's judgment in the case of Kusum Sharma & Others vs Batra Hospital & Medical Research Centre and others, (2010) 3 SCC 480. The court observed that:
50. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.
51. In Roe and Woolley v. Minister of Health (1954) 2 QB 66, Lord Justice Denning said : It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way."
It further observed that:
.....xxxxx.....
73. In Hucks v. Cole & Anr. (1968) 118 New LJ 469, Lord Denning speaking for the court observed as under:-
"a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
81. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals
102. In the recent judgment of Hon'ble Supreme Court in the case of Vinod Jain v. Santokba Durlabhji Memorial Hospital, C.A. No. 2024 of 2019 25-02-2019, [JT 2019 (3) SC 9] held that a person would be liable for negligence if he does not possess the requisite skills, which he professes to be possessing or he does not exercise, with reasonable competence in a given case, the skill which he possess. It is not necessary for every professional to possess the highest level of expertise in that particular branch in which he practices. It would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A doctor cannot be said to be negligent if he acts in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view.
103. The Complainant appears to be prudent; he himself could have approached the authority or police and demanded for PM. The MCI order/report dated 26.05.2017 was stayed by Hon'ble High Court of Calcutta Order dated 19.12.2017. We are of the considered view that the reports of WBMC, MCI and West Bengal Health Department did discuss the essential ingredients/ Principles of Medical Negligence as laid down by the Hon'ble Supreme Court and other Courts. We are not accepting such reports which are devoid of any findings on negligence. These are not convincing and did not conclusively attribute medical negligence against the treating doctors.
104. It is apparent from the record that the treating doctors had treated the patient as per accepted standards of medical practice. There was no deficiency in service; the hospital provided all the necessary infrastructural facilities as well as the support of well-trained medical staff.That despite every sincere effort by the entire medical team at ILS Hospital treating the patient (deceased Indrajit Sarkar) did not succeed in saving his life. It was the rare and uncommon outcome such as left adrenal haemorrhage as a result of traumatic injury of the spine.In the instant case the medical limitations which are beyond human control. It is known that when doctors meet their patient's expectations, they are rewarded by admiration and affection, but if they do not, when medicine could not cure, the patient found it hard to comprehend failure and rightly or wrongly, often wrongly regarded the doctor as personally incompetent."
From the material and evidence filed by the respective Parties and the findings recorded by the learned Member Dr. S.M. Kantikar, I find that each document relating to medical treatment has been dealt in detail and, therefore, I am of the considered view that there was ample material on record by way of prescription, investigation report and other documents on the basis of which an opinion can be formed as to whether the Opposite Parties were liable for medical negligence or not.Thus, the direction given by Mr. Dinesh Singh vide his Order to refer the matter to the Director, All India Institute of Medical Sciences, New Delhi, to constitute a Medical Board of Experts in the concerned faculties and to send the Board's opinion, is not at all required.
In view of the material evidence, documents, prescriptions and Reports of various Investigations considered in detail by the learned Member, Dr. S.M. Kantikar, with which I concur, the findings given by the West Bengal Medical Council in my considered opinion loses its significance.
So far as the merits of the matter is concerned, I find that learned Member, Dr. S.M. Kantikar, who is from the Medical Profession, having vast knowledge and experience in that arena, had considered the arguments advanced on behalf of the Parties, various documents/material, evidence available on record and have elaborately dealt with the same in Para 69 to 104 of his Order.I am not repeating the various material and evidence filed by the Parties as they have been adequately dealt in detail by Dr. S.M. Kantikar in his Order, which has been reproduced hereinabove. I am in full agreement with the findings and reasons recorded by Dr. S.M. Kantikar in his Order as to why there was no medical negligence in the present case and the Complaint is liable to be dismissed.
In view of the foregoing discussions, I am of the considered opinion that the matter is not required to be referred for opinion of Experts and the Complaint is to be dismissed.
Let the papers be placed at the earliest before the Division Bench of Dr. S.M. Kantikar and Mr. Dinesh Singh, whenever they are sitting.
......................J R.K. AGRAWAL PRESIDENT