State Consumer Disputes Redressal Commission
Jaysree Chowdhury & Another vs B.M. Birla Heart Research Center & ... on 16 August, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- CC/76/2008 DATE OF FILING : 30.12.2008 Date Of Final Order: 16.08.2010 COMPLAINANTS : 1. Smt. Jaysree Chowdhury (Aged about 62 years) Widow of Late Anjan Chowdhury. 2. Sri. Sandip Chowdhury, (Aged about 33 years) S/o Late Anjan Chowdhury, Both residing at- 125/E/I, Roy Bahadur Road. Kolkata- 700034, P.S.- Behala. 3. Smt. Chumki Chowdhury, ( Aged about 40 years) D/o Late Anjan Chowdhury, W/o of Sri. Partha Sarathi Bhattacharjee, Residing at 52/A/2, S. N. Roy Road, Kolkata- 700038, P.S.- Behala. 4. Smt. Rina Mukherjee ( Aged about 38 years ) D/o Late Anjan Chowdhury, W/o of Sri Ashoke Nath Mukherjee, 39, Chandra Mondal Lane, Kolkata- 700026, P.S.- Tollygunge. OPPOSITE PARTIES : 1. B.M. Birla Heart Research Center, 1/1 National Library Avenue, Kolkata- 700027. P.S.- Alipore. 2. Dr. Shuvo Dutta @ Suva Dutta ( Cardiologist), Attached with B.M. Birla Heart Research Center, Kolkata, 1/1 National Library Avenue, Kolkata 700027, P.S: Alipore. 3. Dr. Aninda Chatterjee. Medical Superintendent of INDIAS FIRST NABH ACCREDIATED HOSPITAL (During 1st Feb to 21st Feb 2007 ) (B.M. Birla Heart Research Centre), 1/1,National Library Avenue, Kolkata- 700027. P.S.- Alipore. 4. Dr. Ajay Kaul (Consultant Cardiac Surgeon), Attached with B.M. Birla Heart Research Center, 1/1 National Library Avenue. Kolkata- 700027. P.S- Alipore. 5. Dr. Monmohan, Attached with B.M. Birla Heart Research Center, 1/1 National Library Avenue, Kolkata- 700027, P.S.- Alipore. BEFORE: HONBLE MEMBER : Smt. Silpi Majumder. MEMBER : Sri. Shankar Coari. FOR THE COMPLAINANTS : Sri. Ashoke Nath Mukherjee, Advocate. FOR THE OPPOSITE PARTIES : Sri. Radha Kanta Mukherjee, Advocate. -ORDER- Silpi Majumder, Member.
1. INTRODUCTION :
The present Complaint has been filed u/s 17 of the Consumer Protection Act, 1986 by the Complainants alleging deficiency in service and negligence in respect of providing medical treatment towards the patient Late Anjan Chowdhury.
2. THE BRIEF FACTS :
The brief facts of the case of the Complainants are that Sri Anjan Chowdhury, since deceased husband of the Complainant no-1 and deceased father of the Complainants nos- 2-4 and eminent Bengali Film Director & Script/Story Writer / Screen Play writer as well as producer of several movies went for a check up on 01.02.2007 due to chest pain (Angina) at the OP1 (B.M. Birla Heart Research Center) and after check up on the basis of the advice of Dr. Shuvo DuttaOP-2 the patient was admitted at the said Heart Research Center-OP-1 on the same day under the OP-2 as a critical patient. The old history of the patient is that before 11 years back i.e. in the year of 1995 the patientSri Anjan Chowdhury was admitted at the same hospital under the same doctor (OP-2) and at that point of time a Balloon Angioplasty was done. It is further to be mentioned that the patient being diabetic was on insulin. On 14.02.2007 CABG (Coronary Artery Bypass Graft) was done upon Sri Chowdhury by Dr. Ajay Kaul, Cardiac SurgeonOP no-4 and the OP4 was assisted by Dr. MonmohanOP-5 and other doctors. Sri Anjan Chowdhury died at the said hospitalOP-1 on 21.02.2007 at about 10.30 p.m.
3. The OP no-1 is a Hospital and the OP no-2 is a Cardiologist under whom the patient was admitted, the OP no-3 is the Medical Superintendent of the concerned Hospital during the period while Mr. Chowdhury was in the said hospital, OP no-4 is the Cardiac Surgeon who conducted CABG upon the patient and the OP no-5 is another Cardiac Surgeon who assisted the OP no-4 during surgery of the patient.
4. The Complainants raised agitation against the Hospital Authority and the Doctors during the lifetime of the patient i.e. on 17.02.2007 in the evening alleging lack of transparency in the treatment of the patient and were demanding actual and true information regarding the condition of the patient. On 21.02.2007 when Sri Chowdhury was officially declared as dead at 10.30 p.m. the Complainants decided to know the actual cause behind the patients death by way of post mortem and to prosecute those doctors who according to the family members of Sri Chowdhury were grossly negligent in the treatment of the patient causing death.
5. Sri Sandip Chowdhyry-
Complainant no-2, son of Late Anjan Chowdhury lodged written complaint at Alipore Police Station and subsequently the said complaint was treated as an FIR (Alipore P.S Case no-44/2007, dated 22.02.2008), u/s 304 (A) and 34 IPC against Dr. Ajay Kaul, Dr. Monmohan, one unknown doctor, one Anesthetic (who was present in the OT), Dr. Aninda Chatterjee and Dr. Subho Dutta.
6. The patient during the post-operative period was at the midst of severe bleeding episode, which continued for few days and resulting series of re-explorations. The allegation of the Complainants is that negligent act and carelessness of the doctors is solely responsible for the post-operative bleeding of the patient, which ultimately leads to the patients death. Before this Commission the Complainants approached with the allegation of suppression of material fact of bleeding and series of re-explorations to the Complaints in the post CABG operation which tantamount to poor and deficient service as well as negligence on the part of the OPs.
7. After the death of Sri Chowdhury, the Complainants demanded the entire copy of the medical records and documents relating to the treatment of the patient from the Hospital Authority as well as the final bill by issuing a letter-dated 28.03.2007. But in reply the OP1 issued a legal notice dated 27.04.2007 intimating the Complainants that they are unable to produce any papers and documents relating to the treatment of Late Anjan Chowdhury because those papers had been seized by the Police Authority, in the said legal notice it was also advised to the Complainants to procure the copy of those documents and records from the Police Authority.
After procuring those attested medical records (as the originals are under the custody of the Police Authority), it became very much evident that the Hospital Authority and the Doctors associated with the treatment of Sri Chowdhury provided very poor and deficient service in respect of the treatment of the patient and even no consent for surgery (CABG) was taken from the patient and further the OPs showed lack of reasonable care and skill and were negligent in providing actual information regarding the actual condition and treatment of the patient during pre and post operative period. The Hospital Authority and its Doctors associated with the treatment of Sri Chowdhury acted in a very negligent way and provided a very poor and deficient service and failed to take proper and reasonable care regarding the treatment of the patient, which is clearly an act of deficiency in service, which is equal to negligence in medical sense and as a result of which the heart/cardiac condition of the patient deteriorated instead of being improved after CABG and as per post mortem report the patient died due to Deceased condition of the Heart , Kidney and Liver. The hospital and the treating doctors are jointly and severely liable and responsible for such unfortunate death of the patient at the age of 63 years.
8. The allegation of the Complainants is that the OP no 2 and 4 (Dr. Dutta and Dr. Kaul) prior to CABG have failed to advice and properly communicate the Complainants or the patient himself in his life time regarding the actual cardiac condition and the risk factors of the CABG operation which was conducted on 14.02.2007. In a callous and negligent way the hospital authority has recorded the actual age of the victim in the case history as 65 years though Sri Chowdhury was actually at the age of 63 years, such erroneous recording of patients history tantamounts to clear act service deficiency on the part of the hospital where the hospital claims itself to be the Indias one of the Best Hospitals (NABH Accredited).
9. The next allegation is that Sri Chowdhury accrued infection inside the CCU Unit after admission but such incident of infection was totally suppressed to the Complainants. Moreover, what sort of infection was detected, how the same developed in the body of the patient inside the CCU Unit of a Multi Specialty Hospital nothing has been recorded by the doctors in the Doctors Treatment Order. Nothing has been stated in the doctors treatment order about the origin of the infection, diagnosis, and treatment and follow-up result. Either the OP2 or the OP-4 never disclosed or warn about a single risk factor involved with the surgery of CABG either to the patient or to his wife or any other relatives of the patient prior to the said operation, which they were duty bound. On the contrary the OP2 propagated the success rate in CABG at the said hospital in an exaggerated manner and used the term Jolbhat Operation and very simple and minor operation. Thus Dr. Dutta psychologically blackmailed the Complainants for going immediate surgery by saying that if surgery is not done the patient will surely die within 15 days. The OP 2 has further mentioned that the OP1 got NABH Accreditation and has tied up with Cleveland Clinic Foundation, Cleveland, OHIO, USA. In this way the OP2 induced and provoked the Complainants to take the medical service for the patient from the OP no-1. Such failure to warn about the risk involved in the CABG operation tantamount to a clear act of very poor and deficient service and the doctors specially the OP no-2 compelled the patient party to go for surgery immediately by any means.
10. The allegation of the Complainants is that had a single risk factor been ever explained to the patient or his wife or any of the members of the patients family, in that event neither the patient nor her wife or any body else would have allowed the doctors to go for any risky surgery. The patient went to the OP-1 on his own foot for check up and on the advice of the doctor-OP-2 the patient took admission, so the doctors acted not like a doctor but like a corporate businessman and their intention was to push the patient towards a costly surgery, and as such they tactfully avoided the duty of explaining the need the procedure and or the risk factors of the surgery to the patient or to his wife and perhaps the doctors namely the OP-4 and the 2 from a commercial angle assessed very well the mentality of the patient and his wife that if any risk factors is explained or any face to face communication with the patient or his wife is made for obtaining the consent for CABG, neither the patient nor his wife would ever consented for any risky surgery, and will surely go back home without any surgery. It is pertinent to mention that the patient was physically and mentally alert till he entered into the OT for CABG. Moreover the operation was not done under any immediate life saving threat rather it was a planned CABG. The principles of requiring consent applies in all the cases except in certain circumstances where the doctor may be entitled to proceed without consent- 1) when the patients balance of mind is disturbed, 2) the patient is incapable of giving consent by reason of unconsciousness, 3) the patient is a minor. Till the evening of 13.02.2007 the patient himself from CCU unit by putting his signature on the signature panel of credit card payment slip made several payments to the OP-1 in respect of the hospital bill, thus the OPs could graciously take his signature in the consent form for High Risk CABG. The hospital bill dated 17.02.2007 reflected aforesaid payment made by the patient himself till 13.02.2007. The OP-4 did not obtain any proper valid consent prior to surgery from the patient or his wife who was always available. The absence of the patients consent for CABG is a clear act of deficient service and also negligence on the part of the OP-4 and it is also tantamount to a gross deficiency in service, which was never expected from the Indias no-1 NABH Accredited hospital. Neither the OP-2 nor 4 nor any other doctor ever seek or secure any consent of the patient before commencing the surgery of CABG. In the alleged consent form the son of the patient signed on 11.02.2007 and the doctor who claimed that he explained the risk factor to the patient on behalf of the OP-4 signed on the said alleged document on 09.02.2007. The OP-4 claimed in the doctors treatment order that the case was discussed with the relatives and explained about risk involved on 13.02.2007 i.e. a day before CABG. In fact no consent of the patient was taken and no discussion was ever held with any relatives and no risk factor of the surgery was ever explained. Even the patient was offered close package which is offered by the OP-1 to the patient with normal risk factors, but subsequently from the medical record it is evident that the patient was a high-risk patient. It is to be noted that in HIV informed consent no signature was taken from the patient, but in respect of blood transmission and high risk of angiography, consent was taken from the patient.
11. The CABG was done upon the patient on 14.02.2007 and it took time for 411 minutes to complete the operation as per OT note. The cause of such maximum time required for the surgery had not been properly explained in the bed head ticket or in the OP note. Such longer duration of surgery ought to have been explained by the OP-2 and 4 in the doctors treatment order and in the OT note and such inaction is tantamount to deficiency in service. After operation blood transfusion was started on and from 6.00 p.m. and such transfusion is evident from the blood balance sheet, but why such transfusion was required is not explained in the doctors treatment order, which the doctors were duty bound to explain the cause of such immediate need for transfusion. It is evident from the post mortem report that severe hemorrhage occurred in post-CABG period and the documents also corroborated bleeding episodes and due to such bleeding the patients condition deteriorated after surgery which, affected his heart, liver and kidney functions and led to death. The OP-4 and his associate doctors-OP-5 have miserably failed to control profuse bleeding after CABG, which resulted in further re-explorations and ultimately the heart of the patient went in a deceased condition. Moreover the information of the series of re-explorations was completely suppressed to the Complainants. In the shortest possible form the incident had been mentioned in the doctors treatment order i.e. on 15.02.2007 at 2.00a.m. IABP inserted to stabilize the patient, on 16.02.2007 at 7 a.m. lower chest below---opened, clots sucked out observe for. Bleed, closed when found satisfactory. According to the Complainants due to some misdeeds happened inside the OT on several occasions the patients condition was deteriorating in every minute. The doctors did not disclose the actual fact and reason of series of re-explorations to the patient party and though as per request of the doctors some blood donors donated their fresh blood as per requisition, but inspite of this again two blood units was required to be purchased from outside, which was not explained to the Complainants and no mentioning has been made by the doctors in their order sheet. Such requirement of blood proves that there was massive blood loss for which transfusion became necessary. Such hidden re-explorations can be evident from the documents of blood balance sheet, doctors treatment order and hospital bill dated 17.02.2007 wherein two blood units were purchased from Bhoruka on 16.02.2007 is recorded.
12. The OP-1 had provoked and induced the patient himself in his life time as well as the Complainants to take their medical services by using and displaying false and misleading advertisement regarding hospitals attachment and or assistance, affiliation and or tie up with Cleveland Clinic Foundation, Cleveland, Ohio, USA.
Such false and fabricated advertisement was published on several documents only for attracting the patient party which tantamount to Unfair Trade Practice. In fact in 2007 in between 01.02.2007 and 21.02.2007 there was no official tie up between the OP-1 and Cleveland Clinic Foundation Ohio, USA, so onus lies upon the OP-1 to prove that there was affiliation during the aforesaid period. From the clarification of the Cleveland Clinic, it is cleared that the OP-1 had no affiliation during that period.
13. The next allegation of the Complainants is that for attracting and inducing the patient party the OP-1 and 3 used false claim by way of false and misleading advertisement published in different widely circulated news papers and periodicals claiming that Ministry of Health, Government of India had established a body Quality Council of India who had accredited the OP-1 as Indias no-1 NABH Accredited Hospital. The Complainants came to know that Ministry of Health had nothing to do or had no connection with the so-called accreditation process. The actual truth is that the Ministry of Commerce & Industry had set up QCI. QCI set up a board National Accreditation Board for Hospitals and Health Service Providers (NABH), which accredited the OP-1 as Indias first NABH hospital. As the name of commerce mismatches with the term Hospital, so purposely to mislead the consumers/patients used the false advertisement.
14. The OP-4 and his associates including the OP-2 were totally negligent regarding the pre-operative and also the post operative care of the patient is as much as the specific direction of one doctor had not been followed up by another doctor/s and in many occasions the direction for a particular test ordered in the doctors treatment order by a doctor had not been carried out and some other test was conducted, The cause of such deviation and purpose for such change of test had not been recorded any where and it is an example of deficiency in service on behalf of the doctors which cannot be expected from Indias first NABH Accredited Hospital.
15. On 13.02.2007 the doctor ordered for infusion of Heparin, an anti-coagulation used before surgery to keep the blood dilute during surgery and also ordered for monitoring of the effect of Heparin by ACT test after 4 hours then continue Heparin according to ACT, but such test was not done, why it was not done, the cause was not written in the order sheet by the doctor. It is well established that prior to every major surgery after starting infusion of anticoagulation the patient ought to be monitored properly to see the effect of the anticoagulation, otherwise there is always a chances of post-operative bleeding. From the blood balance sheet it is evident that the patient had severe post-operative bleeding after surgery and due to this reason series of re-explorations was done subsequently without taking any consent or providing any information regarding re-explorations to the wife or relatives of the patient. Therefore the OPs are bound to reply that why required or prescribed ACT was not conducted in close interval, reason for sudden change of test was not recorded and on whose instruction such test was not done or what test was done in lieu of the prescribed test? Severe bleeding episode caused major complications for which the heart, liver and kidney got damaged and ultimately led to death. After surgery the OP-4 and 5 claimed total success of the CABG to the Complainants from 14.02.2007 to 17.02.2007, but from 17.02.2007 both of them tried to express that Renal Shut Down occurred due to diabetes of the patient and due to this reason the condition of the patient was deteriorating during post CABG period. The OP-3 and 4 also tried to convince the patient party that due to diabetes renal failure cropped up, but it is clear from the medical record that due to massive bleeding after CABG and failure to control the same by the doctors the kidney stopped its function and loss of blood caused multi organ failure of the patient. Though the health condition of the patient was gradually deteriorating in every seconds, but the OPs communicated false information intentionally day after day till 21.02.2007 and did not disclose the actual state of health of the patient to the Complainants, where the patient party has every right to get correct information regarding treatment and condition of health from the OPs about their patient. The OPs nowhere disclosed the real fact that why the patient did not respond to the surgery and bleeding could not be controlled in the post operative period rather they claimed absolute success of the surgery and tried to suppress the incident of profuse bleeding and secret re-explorations.
16. The allegation of the Complainants is that the hospital authority or the doctors did not constitute any Medical Board in due time knowing very well that the patient was a celebrity, but at a very belated stage i.e. after two successive re-explorations, on 17.02.2007 after 10.00 p.m. due to the conjoint demand of the Complainants and the media persons, Dr. Aninda Chatterjee-OP-3 was compelled to accumulate few doctors for evaluation of the case of the patient jointly for the first time, but it is unfortunate to say that OP-2 under whom the patient was admitted, he did not attend such joint sitting. Such belated step was just eyewash of the OP-1 and 3 as all the incident of bleeding, clotting and re-exploration happened prior to that. On 15.02.2007 while the patient was in ITU Unit at bed no-2, several and most vital investigations were done on the said date, but his investigation report was interchanged with some other patients report of CCU Unit and on the basis of that wrong report this patients treatment was carried out by the OP nos-2, 4 and 5. The OPs have to give reply that based on whose report the subsequent treatment was provided to Sri Chowdhury. It is always the duty of the doctors to check up and read the entire investigation report properly prior to continuation of the treatment and this had not been done in the present case and the situation speaks itself that it caused great harm and resulted ultimate loss of life of a patient.
17. The entire patient treatment order or bed head ticket is written in a very bad manner and some portions are so badly written that it is very difficult even to read it, moreover the doctors did not signed the in the said order properly in most of the noting.
18. The allegation of the Complainants is that the OP-1 is not at all transparent in patient-doctor relationship because the patient parties subsequent to admission of the patient was asked to sign on several printed format with out giving them any opportunity to read those formatted printed papers and few blank portions of the said format were subsequently used for different purposes. Moreover the operation note is also pre-printed and the same format is perhaps used for other patients also. In the victims operation note in the concluding portion it is printed that heparin was neutralized with Protamine. Homeostasis attained. This contention is totally false and misleading as the blood transfusion sheet reveals that massive transfusion was started just after the operation, it proves beyond doubt the Homeostatis was not properly attended but falsely it is written in the pre-formatted paper. This is definitely an act of deficiency in service which tantamount negligence in the treatment towards the patient.
19. The post mortem report and histo-pathological report of the deceased patient clearly show that the patient died due to deceased condition of the heart, kidney and liver but in the death certificate issued by the OP-1 the deceased condition of liver was not mentioned as one of the causes of death. It means proper treatment was not done and liver disease was not detected. Moreover the aforesaid reports show manifestation of severe hemorrhage all over the body but that too is not reflected in the death certificate. In fact the hemorrhage led series re-explorations and postoperative complications, which had been totally suppressed in the doctors treatment order as well as in the death certificate. The doctors have failed to control the bleeding from the angiography site which continued for two subsequent days as well as they did not give any concentration to the SGPT (ALT) report dated 08.02.2007, such failure is an example of serious negligence in the treatment provided towards the patient.
20. The next allegation of the Complainant is that in spite of repeated demand for the final bill, the OP-1 till filing of this complaint did not pay any attention to issue computer-generated bill to the Complainants. Lastly on 17.02.2007 the OP-1 supplied a bill, which was wrongly calculated, and this wrong calculation is a glaring example of very poor and deficient service on the part of the OP-1. The Complainants have stated that the patient-Sri Anjan Chowdhury was such a man whose name was sufficient for Box Office success of any commercial Bengali Movie and his films made business of several cores of rupees in his life time. His sudden demise not only caused irreparable loss and injury to the Bengali Film Industry, it also caused hardship to his own family, family members as his earning was the main source of his family income. At the time of admission to the OP-1 it is clearly stated that the monthly income of Sri Chowdhury was of Rs.1,00,000/-. He died at the age of 63 years, if such unwarranted death due to CABG operation and callousness, negligent Act on the part of the OPs did not take place, in that event the patient could have easily be expected to be alive for another 10 years and his income would be Rs.1 crore and 20 lakhs only. Sri Chowdhury was also entrusted by ZEE TV Bangla to make a serial and the Producer agreed to pay to Sri Chowdhury a sum of Rs.3.50 lakhs per month for his story, screen play and direction. The tenure of the said serial is calculated as 5 years, and then he could have easily earned a sum of Rs.2 crores and 10 lakhs. Apart from this to produce and direct of new films were in his hand but due to his sudden death shattered all the possibilities and pull down a black curtain on the future earning of the family of the deceased. The Complainants by issuing a notice dated 11.11.2008 upon the OPs claimed demand for justice within 15 days from the date of receipt of the said notice and directed the OPs to pay a sum of Rs.84,65,000/- to the Complainant but the OPs ignored the said notice in spite of proper service. Thereafter finding no other alternative the Complainant filed this complaint praying for direction upon the OPs to pay a sum of Rs.50,00,000/- along with interest @12% p.a. from the date of receipt of the notice till the entire payment towards compensation due to death of the patient, Rs.30,00,000/- due to mental pain, agony along with 12% interest p.a., to refund Rs.4,65,000/- along with 12% p.a. which has been paid by the Complainant on account of the treatment of the patient. Hence, the Complainants prayed for a sum of Rs.84,65,000/- along with interest from the OPs. The Complainants have prayed for direction upon the OP no-1 to stop using its false advertisement regarding its tie up with Cleveland Clinic Foundation Ohio, USA and to neutralize the fact of such false advertisement by publishing correct advertisement praying public apology, to stop using false advertisement the name of Ministry of Health, Government of India.
21. CONJOINT VERSION OF THE OPS :
The OPs have contested the complaint petition by filing conjoint written version wherein they have denied all the allegations made by the Complainants. The OPs have contended in their written version that the papers and documents which have been annexed to the petition of complaint by the Complainants are not authentic in as much as all the relevant treatment documents and papers concerning the treatment of the patient Sri Anjan Chowdhury, since deceased were seized and taken to custody by the investigating officer of Alipore Police Station in connection of the criminal case and those records are still lying under the possession of the police and the I.O. has not yet submitted any report in final form, therefore the present case cannot be adjudicated without production of the relevant treatment documents and records. The OPs do not admit anything, which is beyond or contrary to the records. The OPs have submitted that the Complainants are under obligation to prove that the OPs did not disclose the actual state of health of the patient up to 17.02.2007. The OPs have denied the allegation as made by the Complainants regarding severe bleeding episode during post operative period, which continued for few days and also denied the series of re-explorations which led to the death of the patient and in this respect the OPs were negligent in providing proper treatment to the patient. The OPs have further denied the allegation of the Complainants that no consent was taken from the patient before surgery and the OPs showed lack of reasonable care and skill and they never failed to communicate the actual information regarding the condition during pre and post-operative period. The OPs have submitted that inspite of providing proper treatment, they could not save the life of the patient, but they took reasonable care to the patient and they were never negligent towards the patient. According to the OPs the OP-2 and 4 advised the Complainants as well the patient regarding the actual cardiac condition and risk factors of the surgery before CABG operation. Each and every treatment procedure was well explained to the patient and also to his relatives. It have been mentioned by the OPs that as the patient was brought to CCU in emergency condition, immediate care was taken for his treatment, case history was taken from the patients relative and his son Sri Sandip Chowdhury put his signature. At the time of writing case history of the patient, his son stated that his father is 65 years old, and in this respect no deficiency was on the part of the OPs. Apart from this document in all other documents the patients age was recorded as 63 years. The allegation of infection in CCU is baseless and imaginary as the patient was under antibiotic coverage before admission and the same was continued, so the allegation of infection has no leg to stand upon. The risk factor of the CABG operation was properly explained to the patient and his relatives by the OPs and the Complainants executed thereafter consent forms. The OPs have denied that the OP-2 propagated the success of the OP-1 in CABG operation in a exaggerated manner and they never used the term simple operation for the purpose of psychological blackmailing to the patient and the patient party and never said unless the operation is done, the patient would surely die within 15 days. It has been stated by the OPs that expressed consent was taken from the daughter and son of the patient, they signed on 09.02.2007 and 11.02.2007 respectively in the consent form for CABG and as such there is no such compulsion that the consent has to be taken from the patient only. Thus there is no lapse and deficiency in service on the parts of the OPs. They denied that no consent was taken from the patient as they discussed in detail with the patient and his relatives regarding risk factors involved in the CABG operation. Regarding the allegation of misleading advertisement along with unfair trade practice the OPs have stated that the OP-1 is well known heart research institute and hospital which provides best treatment with high standard and it had a link with Cleveland Clinic Foundation for assistance in rendering and providing medical services, The OP-1 and 3 never used false claim by way of misleading advertisement published in different widely circulated news papers and periodicals. They denied the allegation of negligence in pre-operative monitoring and care and the averment of suppression of the incident of profuse bleeding and hemorrhage. The formation of medical board was not felt essential because appropriate cross referrals and consultations were done and treatment carried out as per opinions of specialists of different disciplines and the patient was constantly monitored and treated by different specialists of their respective fields. It has been stated by the OPs that the OP1 being a superspecialty hospital for treatment of heart disease, the National Accreditation Board has accredited it for Hospitals and Health Care Providers of Quality Counsel of India and hence the OP 1 did not publish any false advertisement as alleged by the Complainants. The allegations of lack of transparency are imaginary and baseless. As the patient was unstable it was important to treat the cardiac condition of the patient at first and necessary steps were taken by the OPs in respect of heart as well as liver and for this reason liver function was done on 15.02.2007 which showed normal ALT level. Regarding bill dated 17.02.07 and the final bill the OPs have stated that on 17.02.07 and estimated bill was issued upon the Complainants when the patient was under treatment and the same was not a final bill, but no one turned up to accept the final bill after the death of the patient. The allegation of transparency and package and medical record is also baseless. Package of the patient was made after considering the risk factor and the same was explained to the patient and the patient party, who agreed with the said package after the putting their signature. The OPs also challenged the present and future earning of Sri Chowdhury. It has been alleged by the OPs that prior to admission to this hospital on 01.02.2007 the patient was suffering from chest pain since last one week and he was poorly controlled diabetic and have not come for follow up after his PTCA in 1995. After admission his Trop-T was positive and Eco-cardiogram showed Ejection Fraction to be 32%. His sugar level was reasonably controlled with the help of insulin and his family members were explained that a Coronary Angiogram would be helpful in deciding his future course of treatment to which they had agreed with the written consent. Before the procedure the family members were brought to the cathlab by Dr. DuttaOP-2 for providing detailed explanation of the procedure due to high risk involve in it. The Coronary Angiography was performed on 06.02.07 and the same was uneventful. The Coronary Angiogram showed all 3 vassals of the heart to have severe blockage. On the same night he became unstable again and there was a chance of sudden cardiac arrest but increasing the doze of existing medication and adding further medicines intravenously managed him. Subsequently he had further episode of chest pain in CCU. In view of his unstable condition with repeated chest pain he was referred for surgical opinion to OP4 after taking consent from the family and it was explained to the family members by the OP-2 that repeat angioplasty would not be possible in view of his multiple blockages and the only possible option that could stabilize him could be Coronary Artery Bypass Grafting as he continued to have chest pain in spite of maximum intravenous and oral anti-anginal medications and was not fit to be transferred out of CCU or sent home on medical therapy and Sri Chowdhury was taken for early CABG in view of his persistent chest pain . The patients relatives were fully explained about the risk involved in surgery in view of his long-standing uncontrolled diabetes and it was further told by the OPs that the surgical outcome may be adverse. High Risk Surgery Consent was taken and duly signed by the two family members after proper explanation. CABG was planned in view of his past history of Myocardial Infraction and unstable Angina with mild LVF. After the operation he was shifted to ITU on Ionotropic Support. He was maintained on Ionotropes and IFBP for first 24 hours, but gradually his urine output dropped and he was started on CAVHD from 15.02.2007 as the condition of the patient became gradually grave. A team of doctors, which included Cardiologist, Cardiac Surgeon, Anaesthetist, Intensivist, Nephrologist, Pulmonologist, managed him and opinions were taken from Neurologist as well as Physician. It is pertinent to mention that Nephrologists and Cardiac Surgeon were taken from outside.
22. He was put on CAVHD on 17.02.2007 and on Ionotropic support. His electrolytes, blood sugar level were maintained but his urine output was still inadequate. Despite all attempts, the creatinine level was not allowed to go beyond 3.8%mg. till 20.02.2007 he was Haemodynamically maintained on ventilator support but the patient became anuric and he was on dialysis as well as Ionotropic support. On 21.02.2007 patients blood pressure was maintained with higher doze of Ionotropes and IABP, but the patient still remain anuric. Patient was judged to be critical with grave prognosis. Despite all supportive measures he expired at night on 21.02.2007. The post mortem report and other reports of experts clearly suggest that there was no lapse or negligence on the part of the OPs while he was under the treatment of the OPs at OP1. Undoubtedly it can be said that the OPs took proper care and rendered medical treatment to the patient as per standard procedure with utmost skill and care, hence the OPs are not liable to pay any amount of compensation to the Complainants. The Complainants with a view to harass the OPs and with ulterior motive have filed the complaint before the Honble State Commission. The OPs have prayed for dismissal of the complaint petition with cost.
23. The Complainants and the OPs have filed their respective evidences on affidavit, questionnaires as well as replies. Both parties have also adduced expert opinions from the Doctors. The said Experts were also cross-examined through questionnaires and replies. Both parties have also filed several decisions as well as medical literature and books.
Both parties filed brief notes of argument and written notes of argument.
24. POINTS TO BE DECIDED:
At the very outset it is to be decided
i) Whether the Complainants are consumer or not as per Consumer Protection Act, 1986.
ii) Whether this complaint is maintainable or not before this Commission.
iii) Whether this complainants is barred by limitation or not.
iv) Whether the Complainants are entitled to get any compensation.
25. DECISION WITH REASONS :
Firstly, we have noticed that the patient, since deceased being the father of the Complainants no-2-4 and husband of thecomplainant-1 was admitted at the OP-1 against payment of consideration money and were agreed to pay the entire cost of the treatment and procedure as per claim of the OP-1. The OPs no-2-4 are the employees of the OP-1 and used to get requisite fees as per agreement between the OP-1 and the OP nos 2-4. As the Complainants alleging deficiency in service on behalf of the OPs have filed this complaint, so as per Section 2(d) (ii) of the Consumer Protection Act, 1986 the Complainants are consumers under the purview of the C.P. Act. Moreover the Complainants also made allegations in respect of unfair trade practice against the OPs, so as per Section 2 (r) of the Consumer Protection Act, the Complainants have authority to approach before the Consumer Forum/Commission. It is stated by the Complainants that the patient himself paid money towards the cost of his treatment through his credit card. Hence the patient is a consumer. In that respect also the Complainants are the consumers as per section 2(b) (v) of the Consumer Protection Act, 1986 because as per the said section complainant means in case of death of a consumers, his legal heir or representative; who or which makes a complaint.
26. Secondly, We have noticed that the Complainants have filed this complainant alleging deficiency in service and unfair trade practice against the OPs and the said OPs are carrying their business at the address which is situated within the jurisdiction of this Commission and the Complainants prayed for compensation to the tune of Rs.80,00,000/- and prayed for direction upon the OPs to refund a sum of Rs.4,65,000/- which has been paid towards the treatment of the patient. As the Complainants have claimed more than 20,00,000/- lakhs, this complaint is very much maintainable before this Commission from the territorial and pecuniary jurisdictions point of view.
27. Thirdly, this complaint is not barred by limitation as the patient died on 21.02.2007 and this complaint was filed on 30.12.2008 i.e. within two years from the date of cause of action; hence this complaint is not at all barred by limitation.
28. EVIDENCE OF THE COMPLAINANTS :
The Complainants have filed their evidence on affidavit in support of their complaint petition and answered all the questions made by the OPs which are not at all contradictory with their pleading as well as evidence.
29. ADDITIONAL EVIDENCE OF THE COMPLAINANTS :
As the OPs have stated in their conjoint written version that the patient Sri Anjan Chowdhury was admitted in 1995 at the OP no-1 and under OP 2 and during that time PTCA was done and the disease diagnosed by the OP-2 as acute anteroseptal myocardial infarction. The allegation of the OPs is that after getting discharge from the hospital on 31.01.1995 the patient did not turn up and avoided follow up check as per advise of Dr. Shuvo Dutta. As the OP raised such allegations, the Complainants took leave from this Commission for filing supplementary additional evidence-in-chief on behalf of them and accordingly the same was filed on 02.09.2009, wherein the Complainants have disclosed all the relevant medical records and documents relating to the patients for previous treatment as well as some documents of the present treatment. On careful condition of the same we have noticed that it is true that Angiogram was done on 08.04.1995 and after getting recovery Sri Anjan Chowdhury was discharged from B.M. Birla Heart Research Center on 31.01.1995. But thereafter he visited Dr. Dutta on 04.02.1997, 09.12.1998, to Dr. Nirmalendu Nath on 16.02.1996. Such documents prove that the patient was continuously in contact with the doctors for his treatment and in the mean time several tests were also made as per instruction of his treating doctors, in the supplementary affidavit the Complainants have also adduced several medical documents and records related with the patients treatment for the period from 01.02.20007 to 21.02.2007 while the patient was in at OP-1 under the OP-2.
30. DISCUSSION BASED ON THE EVIDENCE OF THE OP- 1 & 3 AND CROSS-EXAMINATION :
From the abovementioned cross-examination of the OP-1 and 3 by the Complainants it is evident to us that on behalf of the OP-1 & 3, Sri. Kashi Nath Pathak, the Deputy General Manager, (Operations) of the OP-1 has adduced evidence. In the said evidence it has been stated that the medical reports and documents which have been filed by the Complainants are not authentic as the said papers are the photo copies of the doctors treatment orders and progress note of the patient and OP no-1 & 3 have refused to pass any comment (Q-8) until and unless the originals are produced. In this respect we are of the opinion that it is an admitted fact that after the death of Sri Anjan Chowdhury entire medical papers and documents were seized and taken in to the custody by the investigating officer of Alipore Police Station related with the case no. 44/2007 and the original records are still lying in their possession. The Complainants at the time of filing of this complaint have prayed before the said Investigating Officer to hand over the photo copies of the doctors treatment order and progress note of the patient and accordingly the said officer of Alipore Police Station handed over the said documents and treatment papers after making attestation. As the photocopies of medical records and documents being attested one, we have no hesitation to accept these treatment orders as authentic. Therefore in our view to avoid the question of the Complainants the OP-1 and 3 took the plea that the records are not authentic. In the evidence of OP-1 & 3 it has been stated (page-4 para-7) that it is not correct that the patient had severe bleeding episode during postoperative period and it continued for few days. In this respect we are sorry to say that such statement is not in conformity with the hospital documents and such statement is very unfortunate from the pen of the Deputy General Manager (Operations) of B.M. Birla Heart Research Center, as he has stated completely false statement on affidavit in the evidence. We have carefully perused the Annexure-I of the complaint petition (page97-104) i.e. Blood Balanced Sheet, from which it is evident that on 14.02.2007 from 6.00 p.m. to 7.00 a.m. (morning of 15.02.2007) total intake of blood by the patient was 1100 ml and total drain was 800 ml, on 15.02.2007 since morning 8.00 a.m. to 7.00 a.m. (morning of 16.02.2007) total intake of blood was 975 ml and drain was of 1020 ml i.e. the balance was 45 ml, on 16.02.2007 since 8.00 a.m. to 7.00 a.m. (morning of 17.02.2007) total drainage of blood was 1460 ml and the patient intake 900 ml blood and hence the balance was 560 ml, on 17.02 2007 since 8.00 a.m. to 7 a.m. (morning of 18.02.2007) input of blood was 200 ml and output was 270 ml and balance was 70 ml. From these records it can safely be said that the patient had severe bleeding episode in the post operative period and in spite of such episode the OP-1 & 3 has adduced false evidence with ulterior motive.
Regarding suppression of any material facts in the treatment document of the patient the OP1 & 3 have stated in their evidence that they did not suppress anything. In this context we are of the opinion that suppression of bleeding episode in the doctors treatment orders is a glaring example of suppression of material facts by the OPs, moreover, though on 01.02.2007 the patient was advised for Trop-T test but whether the test was conducted or not, no reflection has been made in the treatment/ order sheet. Hence, we have noticed that though on 13.12.2007 on behalf of Dr. Kaul advised was given to start infusion Heparin .8 ml/hr and check ACT after 4 hours then continuation of heparin according to the ACT, but whether heparin was given or not and ACT was conducted or not we are not in a position to know the actual truth as there is no reflection of giving heparin and conducting ACT of the patient in the doctors treatment orders. We have curiously noticed that the OP2 has stated in his evidence that as low modecular wieght heparin was given to the patient and due to this reason ACT was not required, in this respect also we do not find when and where and who has prescribed low modecular weight Heparin to the patient and directed not to conduct ACT test. Therefore, we are not in a position to accept the evidence of the OP-1 & 3 as true because there are several examples of suppression of material facts in the treatment documents of the patient. Therefore it is crystal clear to us that the OP-1 and 3 have intentionally suppressed the actual truth and actual state of health of the patient in the treatment sheet and before the patient party also. They did not disclose severe bleeding episode of the patient to the patient party and even before the Court of Law on affidavit they are continuously stating false evidence and information for the purpose of misleading the Court. Such inaction cannot be expected from Indias famous Hospital and when the patient was a high-risk patient as well as in critical condition. We know that the Hospitals/Nursing Homes are under obligation to provide service against payment to the people irrespective of caste and creed and celebrity and the general people. From such concealment of facts in case of celebrity we may draw the presumption that when general people go to the OP-1 for treatment how far they are facing harassment and mental agony from the OP-1 as well as unfair trade practice against payment of handsome package. We cannot appreciate such mode of work of the OP-1 as well as the procedure of maintaining of the medical records, as the OP-1 is the custodian of the entire medical records and documents of the patient. Henceforth the OP-1 should maintain the medical papers and records relating to the treatment of a patient very carefully and cautiously. As they suppressed the material truth specially the severe bleeding episode and series of re-explorations in the treatment order sheet and to the patient party, such action caused mental agony to the Complainants and for such harassment the Complainants are entitled to get compensation from the OP-1. Moreover we have noticed that the OP-1 has failed to maintain the medical papers and documents of the patient properly as there are several over writings, incorporation in the doctors treatment orders as well as in the OT note. As for instance it may be said the OP-1 has failed to direct the doctors and surgeon to write the treatment orders properly because in the OT note no information is available regarding the names of the doctors who were present at the time of CABG operation along with the names of the doctors who were present in the OT at the time of series of re-explorations. As for example it can be said that the OP-2 claimed in his evidence that he was present in the OT at the time of CABG operation, but in the OT note his name is absent. As per Medical Ethics of West Bengal Medical Council, the general principle of writing prescription/bed-head ticket is that the physician should write the name of the medicine in particular, legibly and clearly so that it can be read, understood by the person and should not any code language of his own. In the instant case most of the records and documents were not written legibly and clearly. Therefore the OP-1 shall direct its doctors to maintain and write the treatment orders legibly and clearly and further the OP-1 should inspect the records of the patients almost regularly and maintain the same properly because the OP-1 is the custodian of theses records and liability to maintain it properly lies upon the shoulder of the OP-1 and OP-1 should be more cautious and careful in this respect. As the mental agony cannot be quantified or measured, but to meet the justice it will be proper if we direct the OP-1 to pay compensation to the Complainants due to harassment and mental agony of the Complainants and suppression of material truth to the patient party as well as in the doctors treatment orders.
31. The OP 1 & 3 has submitted that it is not a fact that no consent for surgery was taken from the patient. In this respect we have noticed a glaring deficiency in service on behalf of the OP-1 & 3 because no informed consent was taken from the patient himself as it is evident from the Annexure-G page 90 of the complaint petition, from where it is evident to us that the OP1 took consent of the daughter and son of the patient in the consent form on 11.02.2007, though at the bottom of the said consent form it is written that I, Dr. Chaya for Dr. A. Kaul have explained to the patient the nature and effect of the above operation/procedures and in my opinion he/she under stands this explanations. In this respect we are to say that it is a false statement as well as the format of this consent is a misguiding one because where there is no panel in the consent form for taking consent from the patient himself then how the OP-1 has printed that everything has been explained to the patient about the surgery on behalf of the doctor. Moreover, the said doctor put his signature along with the date i.e. 09.02.2007. We are not in a position to understand how the said doctor signed on the said alleged consent form before taking signature of the witness. Moreover, the West Bengal Medical Counsel has specifically given the specimen of informed consent (Appendix V). The specimen of the informed consent is as under
SPECIMEN OF INFORMED CONSENT S/o./D/o./W/o.
..
resident of of my free will give my consent for the .
surgical procedure By Dr. name of surgeon under anesthesia by Dr. .
type of anesthesia name of anesthetist to be performed on ..200 on myself .
Date relationship and name of patient The risk involved in the surgery as well as in anesthesia including the possibility of disability and death has been explained to me in my own language Language by name of person recording the consent No guarantee of any sort has been given to me about the results of anesthesia or surgery.
Witness-
Patient/guardian or NOK-
Signature-
Signature-
Name- Name-
Date-
Place-
32. As the OP-1 governs as per the Code of Medical Ethics of West Bengal Medical Counsel therefore the OP-1 has no authority to publish any format of the consent form deviating from the specimen of the informed consent as prescribed by WBMC. Therefore, such deviation in our opinion is tantamount to deficiency in service as in the existing format of the consent form of the OP-1 there is no provision of taking consent from the patient himself. Hence we direct the West Bengal Medical Council for taking necessary action for such deviation from their specified format. Therefore from such consent form it is proved that surgery was performed without taking any valid consent from the patient himself though he was conscious and prudent to take any decision and giving consent before entering in to the OT i.e. 14.02.2007. In the evidence the OP1 & 3 have stated that as high risk involved in his surgery, taking consent from the patient himself would have further aggravated the anxiety of the patient. Such contention also cannot be acceptable in the eye of law as we have noticed that the OP-1 took consent of the patient on 14.02.2007 for blood and blood product transfusion and moreover the patient put his signature on 13th and 14th February 2007 in credit paying slip to make payment of hospital bill by sweeping credit card in the hospital. In our opinion though the OP-1 was ready to take money by taking signature of the patient before a day of surgery and on the date of surgery but they could not take consent from the patient on 9th or 11th February 2007 or after 06.02.2007 till 14.02.2007, morning.
In this respect the Ld. Counsel for the Complainants has filed some medical guideline downloaded from official website of All India Institute of Medical Sciences from which it is evident that some guideline has been given in respect of Preparation of Surgery where it has been stated that anxiety is a natural happening, discuss your concern with your treating doctors, discuss the presence of your spouse/children or a responsible family member, establish direct communication with your treating doctor, as this is very important. In the said page it is also stated that make sure that you do not have any infection in ear, nose, throat, lungs and in other parts of body, if there is any skin disease/rashes, inform the doctor. In this respect it is seen by us that though the OPs claimed that due to anxiety of the patient consent for the CABG could not be taken from him, but there was no doctor before the patient for taking consent with whom the patient may discuss or the doctor may discuss with the patient, whether any step was taken or not or any medicine was given or not to control his anxiety, there is no mentioning in the doctors treatment orders. Without taking any proper step as per medical science, the OPs raised some flimsy grounds, which are not at all reliable. There was none on behalf of the OPs with whom the patient could make direct communication. From the doctors treatment orders it is evident that after entering in the OT on 14.02.2007, the patient saw the OP-4 for the first time, there is no information in the doctors treatment orders that after referring the patient by the OP-2 to the OP-4, the OP-4 visited the patient before conducting operation. It is also clear from the AIIMS guideline that in case of any infection in the body operation cannot be conducted, but in the instant case while the patient was attacked by urinary track infection, the CABG operation was performed. Though the OPs have stated that urine analysis is not necessary as per the opinion of the Urologist, but the opinion of the said urologist is absent in the doctors treatment orders. It is evident from the medical records that the patient was capable of taking prudent decision in between 9th to 14th February 2007. Since admission till surgery the patient was conscious and was in a position to give consent in the consent form for CABG surgery but the OPs did not bother to take his consent and thus avoided the medical rules and ethics. As per Halsburys Law, Medical Journal Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patients consent commits an assault. As per the R egulation 7.16 of The India n Medical Counsel (Professional conduct, etiquette and ethics)before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in case of minor, or the patient himself as the case may be In the instant complaint no consent was taken from the wife of the patient. We have noticed that in page 85 of the complaint petition under the heading of Consent signature of the wife of the patient was taken as guardian on 01.02.2007 at 3.57 p.m. In the said consent it is written that the wife of the patient being agreed gave consent to the performance of any such operation on the patient that may be considered necessary, to administer of anesthesia and any type of investigation that may be advised by the doctor. As well as the wife of the patient also agreed to pay the requisite bill amount as issued by the OP-1. During hearing the Ld. Counsel for the OP1 & 3 has submitted that having regard to the regulation of the Indian Medical Counsel the OP-1 took consent from the wife of the patient, but in this regard we are of the opinion such consent format at page 85 of the Complaint petition is not a valid one as per MCI and we are unable to understand how the OP-1 presumed on 01.02.2007 that CABG operation will be necessary upon the patient and as precautionary measure the OP1 took prior consent from the wife of the patient. Therefore such contention and processes of taking consent from the wife of the patient is not a valid under the eye of law. In this respect we may mention from Bailey & Loves Short Practice of Surgery 24th edition edited by Russell, Williams and Bulstrode (chapter3 page38) wherein it is stated that surgery is technically an assault unless the patient has given express permission for this to occur. This permission is valid only if the patient understands what is plan and then agrees with the proposed course of action. In itself a signed consent form may mean nothing in a court of law, it is the proper taking of informed consent and a record that this has taken place which is the true defense against a charge of assault and battery. It has also been stated in the said page that you should introduced yourself, check the patients name and explain what it is that you are proposing to do, and by what authority you are doing this. Currently it is considered that only the surgeon performing the surgery, or a deputy who is also capable of performing the surgery, should obtained consent. In this case firstly, no valid consent was taken from the patient himself and secondly, where the consent has been taken from the son and daughter of the patient in the said from one Dr. Chaya for Dr. Ajoy Kaul took the consent and put his signature. But we are not in a position to understand whether the said doctor who took consent on behalf of the Dr. Kaul was also capable of performing the surgery. Therefore, the doctors treatment orders are not neat and clean as well as the consent form of the OP-1 is invalid and illegal in the eye of law and also medically. In this respect we may mention to the judgment passed by the Honble Supreme Court in a case between Samira Kohli vs. Dr. Prabha Manchanda & Another, wherein Their Lordships have held that a doctor has to seek and secure the consent of the patient before commencing a treatment including surgery and the consent so obtained should be real and valid, which means that the patient should have the capacity and competence to consent, his consent should be voluntary and on the basis of adequate information concerning the nature of the treatment procedure so that he/she knows what is consenting to. In the instant complaint the patient had capacity and competence to give consent as he was in conscious state. In the present case though valid consent was not taken from the patient, the OP-1 and 3 has made false statement in their evidence on affidavit and such non-obtaining of informed consent is tantamount to deficiency in service. As without taking consent from the patient himself is not permissible in the eye of law (as per Honble Supreme Courts decision), and no evidence has been put forward that consent was taken from the patient himself, in our opinion the Complainants have successfully established that no consent was taken from the patient himself for CABG operation. Such action in our opinion is tantamount to deficiency in service on the part of the OP-1 and 3 and as the alleged consent form was not a valid and proper one the OP-1 and 3 are jointly or severally liable to pay compensation to the Complainants and we are inclined to direct the OP-1 and 3 in a stringent manner that henceforth the OP-1 and 3 should not carry such unfair practice which cannot be supported medically and they are also directed to take proper consent form to the patient as per direction and specification of the WBMC and introduce the said system immediately in their Hospital.
33. In their evidence the OP-1 and 3 have stated that the OP-1 is not involved in any unfair trade practice and did not display any false advertisement, actually it had technical collaboration with Cleveland Clinic Foundation, Cleveland, Ohio, USA. In their replies it has been mentioned that they can produce the MOU between the OP-1 and Cleveland clinic Foundation. But no document has been adduced by the OP-1 in support of its contention. We have noticed that in every medical document and investigation report the OP-1 used to write that it has assistance with The Cleveland Clinic Foundation, Cleveland, Ohio, USA as well as using its logo. In this respect the Ld. Counsel for the Complainants during hearing has drawn our notice to the page no-105-110 of the complaint, from where it is evident that the Ld. Advocate for the Complainants for knowing the actual truth contacted with the Cleveland Clinic Foundation through E-mail where he made specific question to Cleveland Clinic as to whether in past and during the period when the patient was under the OP-1 Cleveland Clinic had any counter part or assisted or affiliated tie up with any private Indian Hospital or not. In reply on 15.09.2008 the said Clinic replied that there are no affiliations and further there is no data that would suggest any affiliations in India. In this respect we are to say that it is true that this patient did not go to the OP-1 for check up and treatment being attracted by the said advertisement as in 1995 his PTCA was done at the OP-1 and the patient had a connection with the OP-1 and 2 since 1995 and admittedly he was under the treatment of the OP-2 since PTCA as per record. After considering the replies through e-mail by the Cleveland Clinic foundation regarding assistance with the OP-1, it is proved that there is or was no assistance with the Cleveland Clinic. In our opinion just to allure the patient and patient parties the OP-1 used the logo of the Cleveland Clinic as well as printed misleading advertisement in their medical documents. As per section 2(1)(r) of the Consumer protection Act, which provides that unfair trade practice, inter alia, includes the practice of making any statement orally or in writing or by visible representation which falsely represents that the goods or service are of a particular standard and quality for the purpose of promoting the sale, use or supply of any goods or for the promotion of any service, adopts any unfair method or unfair or deceptive practice. In the instant case we have noticed that the Cleveland Clinic has denied that it has or had any assistance not only with the OP-1 even not any private hospital in India. From such contention it is cleared that the OP-1 had adopted unfair method and deceptive practice by using the logo of the Cleveland Clinic Foundation in their medical documents and displaying the said advertisement at the top of the right side of their medical documents for the purpose of promoting their business and sale. In our view displaying such misleading advertisement in their medical documents the OP-1 is continuously misleading general people and allured the patients in an unethical manner that it is ready to provide treatment to the patients through video conferencing from the Cleveland Clinic, if necessary only to extort hefty package from the patients. Hence we are inclined to direct the OP-1 as per Section 14 (f) to discontinue the unfair trade practice or not to repeat the same in future. Therefore, considering the facts and circumstances, evidence on record, we are of the opinion that the OP-1 is held liable for carrying on unfair trade practice and we are inclined to direct the OP-1 not to cheat or allure anybody by displaying misleading advertisement anywhere. But as the OP-1 has done the said mis-deeds for a considerable period and general people were misguided by this misleading advertisement, the OP-1 shall pay compensation to the State Consumer Welfare Fund.
34. Next in the evidence the OP-1 and 3 have stated that it is not a fact that report dated 15.02.2007 was interchanged with some other patients report of CCU and doctors carried out wrong treatment on the basis of a wrong report. In this respect we have noticed that the investigation report dated 15.02.2007 clearly shows that sample was drawn from the patient who was in CCU3, but on the said date the patient was in ITU because since CABG operation till death the patient was in ITU. Though the Complainants put specific questions regarding such callousness of the OP-1, but nowhere The OP-1 and 3 has replied that due to typographical mistake such wrong insertion was made, but on the contrary it simply denied the allegation of the Complainants by stating not a fact. Though the Complainants could not prove that due to such casual nature of the OP-1 and 3 the patient died or the doctors based on the said report provided deficient and non-standard medical service to the patient, but such callousness and casual activity of the OP-1 cannot be accepted in case of any patient specially the patient who is in ITU after a major operation and moreover where treatment is provided against payment of huge amount. We are inclined to direct the OP-1 to stop its casual business and not to play with the lives of the patient any further.
35. Regarding bill dated 17.02.2007 for payment of Rs.4,23,915/-, the OP-1 claimed the said amount from the patient party, but from the payment details as mentioned by the OP-1 in the said bill that the patient party had already deposited a sum of Rs.4,65,000/- with the OP-1 i.e. (Rs.20,000/-+50,000/-+50,000/-+59,000/-+1,00,000/-+60,000/-+40,000/-+30,000/-+56,000/-) = Rs.4,65,000/-. Therefore as the Complainants have paid excess amount in advance than the claimed amount, the OP-1 cannot direct the Complainants to make any amount towards balance dues. It is well settled that while a patient is in a nursing home or hospital either in serious condition or not, their anxiousness for the patient prevents the patient party raising any question about the amount of the bill and such Hospitals and Nursing Homes often utilize this weakness of the patient party. In this case the OP-1 tried to extort the patient party consciously by raising a wrong and arbitrary bill. Such action of the OP-1 can be termed as deficiency in service as well as unfair trade practice which cannot be expected from such Indias famous Hospital who claim themselves as NABH accredited. For such issuance of wrong bill upon the patient party directing them to pay the balance amount, the OP-1 intentionally harassed and misguided the Complainants and caused mental agony while their beloved husband and father was in a very critical condition and struggling with death, hence the OP-1 is liable to pay compensation of to the Complainants. Regarding the final bill the OP-1 and 3 have stated that as the patient party did not turn up for payment of the amount of the final bill, they could not serve the final bill to the Complainants. But we have noticed that for getting the final bill the Ld. Advocate for Complainants tried his best and even issued a letter dated 12.06.2007 upon M/s. Sandersons & Morgans, Advocates & Solicitors requesting them to keep the copy of the said Final Bill at their office and let him know the time and date as and when his authorized person would go there for collecting the same. It is pertinent to mention that the OP-1 is a client of M/s. Sandersons and Morgans, but till filing of this case neither the Complainants nor the recorded Advocate for them has received the said Final Bill and no information was even served by the said Solicitor Firm. Therefore there is no ulterior motive of the Complainants in respect of non-payment of the final bill as until and unless the final bill is served upon the Complainants, they are not in a position to pay the said bill.
36. We have noticed that the consent form in respect of HIV test is a defective, invalid and improper one (page 92 of the complaint petition). In the said form under the heading of confidentiality it is written the fact that you have had an HIV test and the test results themselves are confidential and will be available only to the hospital staff dealing with your health except where you have authorized the disclosure or where the disclosure is otherwise required or permitted by law. Under this line there is another heading questions and obtained further information- if you have questions relating to AIDS, the HIV test and the consequences of being tested you are entitled to answers to these questions by the person offering the test before you agree to testing under these writing there is a table where it is written that my signatures indicates that I have read the above information and it has been explained to me, I under stand the information that has been given to me about AIDS and HIV testing, I have been given adequate opportunity to ask questions to obtain further information, all of my questions have been answered to my satisfaction and I have no further questions. But curiously enough it is written at the bottom of the said table that I give my permission to Chumki Chowdhury and subordinates thereof to perform HIV test of my blood. I authorize the named person (s) and those permitted by law to receive the test results. We have noticed curiously that the said improper and invalid HIV test informed consent was taken on 02.02.2007 wherein the patient Sri Anjan Chowdhury gave permission to Chumki Chowdhury and subordinates thereof to perform HIV test of his blood. It is beyond our knowledge as well as no pleading has been made by the Complainants in their complaint that Chumki Chowdhury was a treating doctor of Sri Anjan Chowdhury and she was authorized to perform HIV Test of the patient.
It is beyond our capacity to understand that who is Chumki Chowdhury to perform the HIV test of the patient? Moreover though it has been printed in the said consent form that everything has been explained, but signature of any doctor is not there. Such glaring callousness, incapability of the OP-1 cannot be expected, if they are used to take HIV test consent from the patient in this way, hence we direct that OP1 immediately should stop its business in this way. Our notice has been attracted to the guideline of National AIDS Control Organization wherein it is stated that a person has the right to keep information on HIV status confidential and any patient can seek remedy in a court of law if he/she is tested for HIV without informed consent, or his / her confidentiality is breached, or any his / her rights has been violated. In the instant case it is seen by us that HIV test in respect of Sri Anjan Chowdhury has been disclosed before his daughter Chumki Chowdhury as in the said alleged HIV consent form permission was given for HIV test to Chumki Chowdhury. Where the specific guideline of NACCO is that HIV test should not be disclosed to any third party and it will remain confined between the patient and the treating doctor. In this case the OP-1 has grossly violated the guideline of NACCO and such violation is tantamount to deficiency in service because the alleged HIV consent form is an illegal one. Due to such callous performance of the OP-1 the patient party suffered from mental agony and pain, for which they are entitled to get compensation from the OP-1 due to harassment and mental agony and disclosure of the HIV test to the third party as well as violation of the NACCO guide line.
37. QUESTIONS OF THE COMPLAINANTS TO THE OP-2 AND ANSWERS GIVEN BY THE OP-2 :
In respect of evidence on affidavit of the OP-2 the Complainants put some questions and the OP-2 has replied accordingly. In Q-9 the Complainants asked to the OP-2 that Heparin is used as anticoagulation mainly used intravenously before surgery so that blood may not get clotted during surgery, but overdose of heparin may be dangerous as it enlarge the scope of bleeding episodes; so heparin should be monitored carefully- do you agree with the contentions? or you have any other theory that heparin should not be monitored?
The OP-2 replied that since the patient was given low modecular weight heparin, hence no monitoring was required. In Q-13 the Complainants asked that Do you have any idea about Informed Consent before surgery? The OP-2 replied that I am not in a position to know as the Informed Consent for CABG falls in the domain of Cardiac Surgeon. In Q-18 the Complainants asked that though in his (OP-2) evidence it was stated that the patients Trop-T was positive and Echocardiogram showed his ejection fraction to be 32 % . etc when the said tests were done and under whose advise the OP-2 replied that It is not a fact, what I have said about Trop-T in my evidence are true. Same question has been raised in question no-22 and the reply of the OP-2 is that It is a matter of record. In respect of Q-23 regarding assistance with the Cleveland Clinic, Ohio, USA the Complainant asked the OP-2 that have you ever personally checked yourself or seen in our own eye the MOU between the OP-1 and the Cleveland Clinic, Ohio, USA in between 12.01.2007 to 12.06.2007?
The OP replied I do not remember. In respect of Q-
25 ACT test was specifically ordered on 13.02.2007 in the doctors treatment order by a treating doctor but such test or monitoring was not done while in spite of specific written instruction a day before surgery, the OP 2 replied that since the patient was on low modecular weight heparin his ACT was not required.
In Q-29 the Complainant asked the OP-2 that where he has recorded his instruction which he explained to the patient party that repeat of Angioplasty would not be possible in view of his multiple blockage and the only possible option that could stabilize the patient could be CABG as he continued to have chest pain in spite of maximum Intravenous and Anti Anginal Medications. The OP-2 replied that the information was given to his daughter and the patient was not in a position to be transferred out of CCU where facilities for his proper monitoring may not be available. The Complainants asked the OP-2 in Q-44 that though on 15.02.2007 the patient was at ITU unit but few investigations reports reveal that the patients test sample was drawn on the said day from CCU unit how is it possible, explained? OP- 2 replied it is a matter of record. In Q-46 the Complainants asked that consent for HIV test and consent for blood and blood product transfusion are all improper and invalid consent in the eye of law, as the name of the doctor is absent in HIV test consent and in blood transfusion consent the witness had been asked to put signature a day before the consenter signed the consent? The OP-2 replied that these are not at all facts, actual are otherwise which I have already stated in my evidence. In Q-48 the Complainants asked that personally you never talked with the patient while taking consent for CABG surgery-what do you say? The reply is that consent was taken by the cardiac surgeon. In respect of the Q-51 the OP-2 replied that he has no idea under which ministry QCI belongs and who has given NABH accreditation. Against the Q-52 the OP-2 replied that he is not related with any anesthetic evolution and assessment report in the bed-head ticket of the patient. In respect of Q-53 the OP-2 replied that he couldnt say the name of the anesthetist who administered anesthesia upon the patient, as it is a matter of record. In Q-55 the Complainants wanted to know the brand name of Heparin ordered to be given to the patient a day before surgery on 13.02.2007 along with recommendation for ACT test, the OP-2 answered that the patient did not get Heparin and he was given low modecular weight Heparin. In the Q-56 the Complainant asked that can you name the doctors who were present in the OT on the subsequent days after CABG when the patient was required to shift to OT to tackle medical emergency and was you present there? The OP-2 replied that it is a matter of record. Again the Complainants put a question no-58 that can you name the doctors who were present in the OT during surgery on 14.02.2007? The answer is similar like previous one. The Complainants put a very important question i.e. Q-59 wherein they wanted to know about the cause emergent situation of the patient on 15.02.2007, 16.02.2007 and 17.02.2007 when the patient was taken back to the OT on several occasions. The simple answer of the OP-2 is that these are not facts. Based on the evidence adduced by the OP-2 (para-8 page-4) the Complainants asked the OP-2 that why he explained about risk involved in the surgery, optimal renal function and poor ejection fraction to the family members of the patient and why not to the patient himself and did he personally explained the entire matter as stated by him to the relatives of the patient? The complainants in this respect wanted to know the date specifically (Q-61). The OP-2 replied that he explained each and every aspects of risk involved in CABG to the best of his knowledge and other treatment procedure to the patient himself on or about 09.02.1007, 11.02.2007 and 12.02.2007 and also explained the same to the relatives of the patient who signed the informed consent.
38. DISCUSSION BASED ON THE EVIDENCE OF THE OP-2 AND CROSS-EXAMINATION :
From the abovementioned cross examination of the OP-2 by the Complainants it is evident to us that undoubtedly the patient was admitted on 01.02.2007 under the OP-2, but the OP-2 has not replied the questions of the Complainants specifically and tried to avoid to give any proper answer in respect of most of the questions. In respect of Q no-9 the OP-2 has stated that the patient was given low modecular weight heparin, hence no monitoring was required. In this respect we are to say that as per doctors treatment orders on 13.02.2007 at 6.00 p.m. one doctor for Dr. Ajoy Kaul prescribed for starting infusion heparin .8ml/hr from 7.00 till 7.00 a.m. (next day morning) and check ACT after 4 hours then continue heparin according to ACT. In the abovementioned direction no direction was made for starting low modecular weight heparin and there is endorsement of any low modecular heparin in the doctors treatment order, so from which record the OP-2 has opined that due low modecular heparin no monitoring was necessary. The OP-2 has failed to show us any cogent evidence in support of his contention. Regarding Q no-13 the OP-2 replied that it is the duty of the cardiac surgeon to take informed consent from the patient, but he has failed to show us any medical guideline or medical ethics in this respect. Though in the evidence the OP-2 claimed that soon after admission of the patient he was advised for necessary tests and as per test reports his Trop-T was positive, but within the four corners of the doctors treatment order we are unable to find out that the patient was advised for abovementioned test though the OP-2 has replied that it is a matter of record and we are unable to find out any test report of Trop-T and moreover we do not find any reflection in the Hospital bill also. In our opinion the direction, which was never given to the patient by the OP-2, cannot be a matter of record. During hearing the Ld. Counsel for the OP-2 has submitted that the Complainants did not file the entire medical records in this complaint and near about 60-65 pages of the medical records related with the treatment of the patient, so without disclosure of the said records this complaint cannot be adjudicated. In this respect we are of the opinion that for the first time the OP-2 took this plea during hearing of the final argument. Neither in the written version nor in the evidence such plea was taken, moreover nowhere in the reply the OP-2 has stated that in absence of cogent medical papers, questions cannot be answered. The OP-2 has claimed in his evidence that he explained very clearly to the patient party that repeated angioplasty would not be possible in view of his multiple blockage and the only possible option that could stabilize the patient could be CABG as he continued to have chest pain in spite of maximum intravenous and oral anti anginal medications and the patient was not fit to be transferred out of CCU or sent home on medical therapy. But we have failed to find out the said explanation or opinion of the OP-2 in the doctors treatment order and without making any such explanation the OP-2 has made false statement in his evidence on affidavit. Regarding the allegation of the Complainants that the HIV consent, blood and blood product transfusions consent are not proper and invalid consent in the eye of law, the OP-2 replied that such contention of the Complainants is not actual and the actual facts has been stated in his evidence. But curiously enough that the OP-2 taking sole responsibility has failed to mention any word in the said context in his evidence, but callously replied the question of the Complainants. We find that he gave several answers in this way, which is not at all in his evidence. Similarly taking responsibility he has stated that consent from the patient was taken by the cardiac surgeon, from where he got such information is not clear to us because in the consent form there was no signature of the patient himself. We are to say that where a doctor is practicing nearly 25 years in the field of Medicine and Cardiology, he should have some responsibility because without perusing the treatment papers of the patient he adduced his evidence very casually, which cannot be permitted in the eye of law. In respect of Q no-55 the OP-2 replied that the patient did not get heparin and he was given low modecular weight heparin. In this context we are of the view that where there was specific direction to start Heparin and ACT accordingly, under whose direction, the given direction was not complied with the OP-2 did not give any satisfactory explanation and did not show us when and where low modecular weight heparin was prescribed. The Complainants wanted to know the names of the doctors who were present in the OT on the subsequent days after CABG when the patient was required to shift to OT to tackle medical emergency, the OP-2 replied this is a matter of record. But we have noticed in the w/v the OP-2 has denied the allegation of re-explorations of the patient after CABG, but in the answer that OP-2 has stated it is matter of record, such opinion proves that he has accepted the incident of shifting the patient to the OT again after the CABG operation and moreover the record shows that the patient was taken to the OT for several times for re-explorations, which is evident from the Blood Balance Sheet. But the OP-2 has stated false statement in his w/v, which is on affidavit as well as made false reply in cross examination by the Complainants. Though the OP-2 has claimed that he explained the risk involved in the CABG to the patient himself, but he again has failed to produce any cogent evidence in support of his contention. In our opinion the OP-2 has answered the questions of the Complainants very casually without applying his mind and concentration; in a similar manner he treated the patient, as though the patient was admitted under him but he was not conversant with the treatment procedure of the patient regularly and tried to transfer the blame upon the shoulder of another doctor. When the CABG started and when it was ended neither the medical record nor the OP-2 throw any light to us though the OP-2 claimed this is also matter of record. Where there is nothing in the record how the OP-2 claimed matter of record, it is not clear to us and his replies are also harassing and misleading. In respect of assistance with Cleveland Clinic, Ohio, USA, the OP-2 has failed to remember whether there is or was any assistance with the said world famous clinic or not. Such contention of the OP-2 is misguiding one because where he is attached as cardiologist and treating patients regularly after perusing the investigation reports of the patients everyday, if he cannot remember the said assistance, in our opinion there is some fishy smell behind such contention. Being a doctor of the OP-1 if he does not know whether the OP-1 has any assistance with the Cleveland Clinic or not, then how far he is casual and irresponsible, we cannot explain within this short space. But we are of the opinion that actual truth is that the OP-2 knows very well that there is or was no assistance specially during the period when the patient was in the said Hospital, the OP-2 has suppressed the material truth intentionally. We have carefully perused the doctors treatment orders, from where it is evident that from 01.02.2007 to 13.02.2007 the OP-2 attended the patient regularly, but after the CABG there is no endorsement in the said orders that the OP-2 attended or visited the patient while the patient was in a very critical condition and in every moment his condition was deteriorating. In our opinion as the patient was admitted under him, it was the duty of the OP-2 to be present at every moment by the side of the patient while his patient was in serious condition after CABG. Moreover there is no document or OT note which can prove that the OP-2 was present at the time of CABG operation of the patient. There is no treatment or procedure paper, which can prove that during re-explorations the OP-2, was present being a cardiologist. There is also no record to show us that on 17.02.2007 while some doctors formed a medical board to provide treatment jointly or to observe the severe condition of the patient in a conjoint manner, we are in dark whether the OP-2 was in the said conjoint board or not, nowhere in his evidence he has stated that he was in the said board.
During hearing the Ld. Counsel for the OP-2 has stated that after referring the case to the surgeon, cardiologist has no role and it is the norms of practice, but has failed to show us any medical literature in favour of such contention, The OP-2 has failed to satisfy us by producing any cogent material that after referring the patient to a surgeon the doctor under whom the patient was admitted, he has no liability. But the OP-4 in his evidence has stated that the OP-2 was present in the OT on the said date. Moreover in are in dark whether during series of re-explorations after CABG operation the OP-2 was present in the OT or not, as there is OT note for subsequent days. As the patient was admitted under him on 01.02.2007 it was the prime duty of the OP-2 to stay with the patient till his death, but in the doctors treatment orders there is no endorsement of the OP-2 after the CABG operation. We have noticed that being a cardiologist the OP-2 was absent during the CABG operation. Such casual and callous treatment by the OP-2 towards the patient cannot be accepted either in law or medically. We are inclined to direct the WBMC to take stringent action against the OP-2 who is used to admit patient under him, after taking a handsome amount from the patient party, never turns up. In the instant case while the patient was struggling against death, at that time also the OP-2 was not present by the side of the patient, while during argument it has been stated by the Ld. Counsel of the OP-2 that there was good relationship between the patient and the OP-2 and it has been earlier mentioned that the patient was under his treatment since 1995. On the whole, the evidence filed by the OP-2 is not convincing to us as he has failed to discharge his duty in a complete manner and made several false statements in his evidence which is totally contradictory with the medical papers and documents. In our considered view before the Court of Law, making false statement on affidavit is a crime and he made false statement only to conceal the actual truth and his deficiency in providing proper medical service to the patient. For such deficient service the OP-2 is liable to pay compensation to the Complainants. In our view medical service is a holy service, but where the doctors are acting like a business man, does not care for the patients condition and more interested to receive fees only, the said doctor/s should be punished in the eye of law as well as by the Medical Council. Such doctors are not entitled to carry on their medical practice.
39. QUESTIONS OF THE COMPLAINANTS TO THE OP-4 & 5 AND ANSWERS GIVEN BY THE OP-4 & 5:
In the cross-examination against the evidence of the OP-4 and 5 the Complainants have raised some questions and the said OPs have replied the same. In Q-17 the Complainants have asked the OPs whether they have any knowledge in respect of any Agreement by and between the OP-1 and Cleveland Clinic. The OPs replied that they cannot say. In Q-19 the OPs were asked that why ACT test was not done on 13.02.2007 i.e. a day before surgery in spite of written instruction/prescription. The OPs replied that as the patient was given low modecular weight heparin, ACT monitoring was not required. In Q-21 the OPs were asked to mention the names of the doctors who were in the OT on 14.02.2007 to assist the OPs, the OPs requested the Complainants to peruse the treatment document, as they could not remember. The Complainants wanted to know in Q-40 that when they met personally the patient in between 01.02.2007 to 14.02.2007, the OPs have failed to remember. In Q-44 the Complainants wanted to know the opinions of these OPs as to whether the HIV consent form is valid or not as the name of the doctor is absent in the said consent form, the OPs replied it is not the fact. In Q-46 the complainants have directly put that the OPs never talked with the patient while taking consent for CABG surgery, according to the OPs it is not a fact. In Q-50 the Complainants put specifically that the CABG consent is invalid, the OPs opined that the proposition of the Complainants is wrong. Against the Q-56 the OPs replied that it was low modecular weight heparin and not heparin and the Complainants wanted to know the brand name of heparin which was prescribed a day before surgery along with ACT monitoring. In Q-59 the Complainants wanted to know the opinion of the OPs regarding internal bleeding in the post CABG, and the OPs replied that it is not a fact. The Complainants wanted to know the names of the doctors who were present in the OT on the subsequent days after CABG when the patient was required to shift to OT to tackle medical emergency in Q-60, the OPs replied that it is a matter of record. The OPs were asked in Q-61 that have they never disclosed to the patient party that the patient was again taken to the OT on several occasions after CABG, the reply is that it is not a fact. The Complainants directly asked the OP-4 that who prepared the CABG consent for surgery? The OP-4 has failed to reply. In Q-63 it was put to the OP-4 that who on his behalf has explained the risk factors of the surgery CABG to the patient and why patients consent was not taken? The OP-4 replied the attending doctors explained that risk factor to the patient and the patient party. Specific Question was made in Q-64 that prior to CABG with whom they talked specifically about the risk of surgery? The answer is that the OP-4 talked with the patient and the patient party. In Q-67 the OPs were asked why blood and blood product was required to be purchased from out side blood bank, the OPs replied it was for the benefit of the patient. Connected question was made in Q-68 that why the patient was taken again to the OT on several occasions after CABG, they replied it is not the fact. The Complainants have asked in Q-70 that did they notice that there was no record of anesthetic assessment of a critical patient in the doctors treatment orders before CABG? The simple answer it is not a fact. In Q-71 and 72 the Complainants wanted to know whether the OP-4 and 5 are in a position to produce any document to prove tie up between the OP-1 and Cleveland Clinic, they replied that it is not a fact and they are not concerned with this. In Q-77 the OP-4 was asked whether any surgical note was prepared on 15/16 and 17.02.2007 when the patient was moved to the OT for certain operations for which re-exploration was required, the OP-4 replied that it is not a fact. It was suggested by the Complainants in Q-79 that due to hemorrhage and blood clots after CABG the renal shut down happened;
here it is said that it is not a fact. In Q-82 the OPs were asked that did they explain the risk factors of surgery to the patient, the answer is yes. The OPs were asked in Q-84 that why the anesthetic and he himself did not take consent for surgery and anesthesia from the patient before CABG, the OP-4 replied that proper consent was taken before surgery. In Q-86 and 87 the OPs were asked that where urine culture and urine analysis is a routine test as per surgical protocol and where UTI has been occurred before surgery, why the said tests were not done? The OPs replied that it is a wrong proposition and the patient was on antibiotics, opinion of urologist was taken before surgery. Very important question has been raised by the Complainants in Q-90 that why the method of operation was not mentioned in the consent form and why in the OT note there is over writing and pen through? The OP-4 replied that on pump beating surgery is a procedure for performing CABG. Very pertinent question has been raised in Q-91 that why the operating surgeon did not put his signature in the consent form as well in the operation note? The OP-4 replied that it is matter of usual practice. In Q-95 the Complainants wanted to know the actual incident happened in between 14.02.2007 to 17.02.2007, which required several re-explorations in the OT? The answer is that he has stated everything in his evidence. In Q-97 the Complainants suggested that the operation note is a pre-printed document where partly was in hand written and some facts were incorporated subsequently? The OPs answered that it is a matter of record.
40. DISCUSSION BASED ON THE EVIDENCES OF THE OP- 4 & 5 AND CROSS-EXAMINATION:
From the abovementioned cross examination of the OP-4 & 5 by the Complainants it is evident to us that the OP no 4 & 5 have stated that the medical reports and documents which has been filed by the Complainants are not authentic as the said papers are the photo copies of the doctors treatment order and progress note of the patient and OP no-4 & 5 have refused to pass any comment in respect of Q-7, that until and unless the originals are produced. In this respect we are of the opinion that it is an admitted fact that after the death of Sri Anjan Chowdhury entire medical papers and documents were seized and taken in the custody by the investigating officer of Alipore Police Station related with the case no. 44/2007 and the original records are still lying in their possession. The Complainants at the time of filing of this complaint have prayed before the said Investigating Officer to hand over the photo copies of the doctors treatment order and progress note of the patient and accordingly the said officer of Alipore Police Station handed over the said documents and treatment papers after making attestation. As the photocopies of medical records and documents being attested one therefore we have no hesitation to accept these treatment orders and medical documents as authentic. Therefore in our view to avoid the question of the Complainants the OP-4 and 5 took the plea that the records are not authentic. In reply the OP-4 and 5 have stated (question no-19) the ACT test was not required due to low modecular weight heparin. In this respect we are to say that based on what prescription or direction and who has directed to give low modecular weight heparin it is not mentioned in the doctors treatment order, though in the treatment sheet dated 13.02.2007 there was specific direction to give heparin and to continue ACT test accordingly. Though in the evidence the OP 4 & 5 has stated some names of doctors who were present in the OT during CABG operation and treated, monitored the patient continuously, but in the OT note or surgical note there is no mentioning of the names of the doctors as mentioned by OP no 4 & 5 in their evidence. Therefore, the name of the doctors which has been stated in the evidence either wrong or the names, which has been mentioned in the OT, note is a mis-statement one. The OP4 & 5 have stated (question no 39) in their evidence that as the patient was treated with antibiotics and was also seen by an Urologist before surgery, the infection was not so serious that had to be controlled before surgery. In this respect our considered view is that the surgery of the patient of CABG was a planned one, it was not done as emergency basis. As per the Complainants as such infection was detected before CABG operation the doctors were under compulsion to control the infection before surgery. In support of such contention the Complainants have cited authentic medical book ( Bailey & Loves Short Practice of Surgery, 24th edition, Edited by Russell, Williams, Bulstrode, chapter-3 page-32, wherein it is written the use of routine test normally performed on most patients coming to surgery (such as full blood count, basic biochemistry and chest radiography) needs careful and regular review..all results should be recorded clearly signed and dated. The use of a cumulative record is helpful to show trains only if it is kept with the notes and kept up to date ... special investigation should be organized in consultation with the specialist who will be advising on the results and with the Anesthetist, who will decide whether the patient is fit for surgery. In page 33 of the said book under heading Targeted Surgical Test it is mentioned that full blood count, Creatinine and electrolytes, Liver function test, Clotting screen, Electrocardiography, Chest radiography, Cardiac evaluation, Respiratory evaluation & Urinalysis which means that in case of any surgery the above mentioned tests should be done. It has also been mentioned in page 33 of the said book that Urinalysis is required to complete the clinical examinations; it allows the detection of a urinary track infection, biliuria, glucosuria and in appropriate osmolarity. Specific miscroscopic, bacteriological or biochemical analysis is indicated only for specific medical conditions. Nowhere in the evidence the OPs have denied that patient was not attacked by urinary track infection. As UTI has not been denied anywhere either in the written version or in the evidence by the OP-4 and there it is admitted that the patient was attacked by Urinary Track Infection before CABG and the urine examination report dated 08.02.2007 has also proved the existence of UTI in the patient. Though the OP-4 and 5 have stated that urine analysis was not done due to the opinion of the urologist and the patient was on antibiotic, but in the doctors treatment orders we do not find any opinion of the said urologist who opined that urine analysis was not necessary. We have noticed that the Complainants have relied on an authentic medical book, which has accepted by the OPs also, and the OPs did not file any such medical books or literature to contradict the abovementioned observations as mentioned in the above medical book. Therefore we have no hesitation to accept the said observations, which should be observed in case of any surgical patient and the doctors shall abide by the said directions specified in that book and shall prescribe for the aforementioned tests before any surgery. But in the instant case knowing very well that the patient was suffering from UTI, the OPs did not bother to prescribe for Urinalysis. Hence in our opinion The OP-4 and 5 has deviated from the standard medical practice and such deviation cannot be accepted either lawfully or medically. In our opinion such deviation is tantamount to deficiency in service on the part of the OP-4 and 5 and they are liable to pay compensation to the Complainants. We are inclined to direct the MCI to take appropriate step against theses doctors as they did not follow the standard medical protocol or practice in respect of the treatment of Sri. Anjan Chowdhury. In the reply in respect of their evidence on affidavit the OP-4 and 5 could not remember that when they first met the patient before CABG operation in person and while the Complainants suggested that the OP-4 and 5 never talked with the patient at the time of taking consent for CABG the contradictory answer of the OPs is it is not a fact. In respect of such reply we are of the opinion that the OPs took several steps only to conceal the actual truth, but whether fortunately or unfortunately the truth has come out. On careful perusal of the doctors treatment orders it is evident that from 01.02.2007 to 14.02.2007 prior to CABG the OP-4 and 5 did not attend the patient and even at the time of taking consent specially the OP-4 being surgeon and who performed CABG surgery upon the patient was not present. Regarding the consent form (though it cannot be termed as valid and legal consent form) The OP 4 & 5 have submitted that it is not a fact that no consent for surgery was taken from the patient. In this respect we have noticed a glaring deficiency in service on behalf of the OP-4 and 5 because no informed consent was taken from the patient himself as it is evident from the Annexure-G page 90 of the complaint petition, where from it is evident to us that the OP1 took consent of the daughter and son of the patient in the consent from on 11.02.2007, though at the bottom of the said consent form it is written that I, Dr. Chaya for Dr. A. Kaul have explained to the patient the nature and effect of the above operation/procedures and in my opinion he/she under stands this explanations. In this respect we are to say that it is a false statement as well as the format of this consent is a misguiding one because where there is no provision in the consent form for taking consent from the patient himself then how the OP-1 has printed that everything has been explained to the patient about the surgery on behalf of the doctor and how the OP-4 and claimed that consent for CABG was taken. Moreover, the said doctor put his signature along with the date i.e. 09.02.2007. We are not in a position to understand how the said doctor signed on the said alleged consent form before taking signature of the witness. Moreover, the West Bengal Medical Counsel has specifically given the specimen of informed consent (Appendix V), which has been earlier mentioned.
41. Therefore from such consent form it is proved that surgery was performed without taking any valid consent from the patient himself though he was conscious and prudent to take any decision and giving consent before entering in to the OT on 14.02.2007. In the written version the OPs have stated that as high risk involved in this surgery, taking consent from the patient himself would have further aggravated the patient condition and anxiety. Such contention also cannot be acceptable in the eye of law as we have noticed that the consent was taken from the patient on 14.02.2007 for blood and blood product transfusion and moreover the patient put his signature on 13th and 14th February 2007 in credit paying slip to make payment of hospital bill by sweeping credit card in the hospital and the OP-4 being a treating surgeon did not take ant step to control his anxiety and no medicine was prescribed for that. In our opinion though the OPs were ready to take money by taking signature of the patient before a day of surgery and on the date of surgery but they could not take consent from the patient on 9th or 11th February 2007. It is evident from the record that the patient was capable of taking prudent decision in between 9th to 14th February 2007. Since admission till surgery the patient was conscious and was in a position to give consent in the consent form for CABG surgery but the OPs specially the OP-4 did not bother to take his consent avoiding the medical rules and ethics. As per Halsburys Law, Medical Journal Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patients consent commits an assault. As per the R egulation 7.16 of The India Medical Counsel (Professional conduct, etiquette and ethics)before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in case of minor, or the patient himself as the case may be In the instant complaint no consent was taken from the wife of the patient while she was all along present in the hospital since admission of the patient. We have noticed that in page 85 of the complaint petition under the heading of Consent signature of the wife of the patient was taken as guardian on 01.02.2007 at 3.57 p.m. In the said consent it is written that the wife of the patient being agreed gave consent to the performance of any such operation on the patient that may be considered necessary, to administer of anesthesia and any type of investigation that may be advised by the doctor. As well as the wife of the patient also agreed to pay the requisite bill amount as issued by the OP-1. During hearing the Ld. Counsel for the OPs has submitted that having regard to the regulation of the Indian Medical Counsel consent was taken from the wife of the patient, but in this regard we are of the opinion that such consent format at page 85 of the Complaint petition is not a valid one as per MCI and we are unable to understand how the OP-1 presumed on 01.02.2007 that CABG operation will be necessary upon the patient and as precautionary measure the OP1 took prior consent from the wife of the patient. Therefore such contention and processes of taking consent from the wife of the patient is not a valid under the eye of law or medically. In this respect we may mention from Bailey & Loves Short Practice of Surgery 24th edition edited by Russell, Williams and Bulstrode (chapter3 page38) wherein it is stated that surgery is technically an assault unless the patient has given express permission for this to occur. This permission is valid only if the patient understands what is plan and then agrees with the proposed course of action. In itself a signed consent form may mean nothing in a court of law, it is the proper taking of informed consent and a record that this has taken place which is the true defense against a charge of assault and battery. It has also been stated in the said page that you should introduced yourself, check the patients name and explain what it is that you are proposing to do, and by what authority you are doing this. Currently it is considered that only the surgeon performing the surgery, or a deputy who is also capable of performing the surgery, should obtained consent. In this case firstly, no valid consent was taken from the patient himself and secondly, where the consent has been taken from the son and daughter of the patient in the said from one Dr. Chaya for Dr. Ajoy Kaul-OP-4 took the consent and put his signature. But we are not in a position to understand whether the said doctor who took consent on behalf of the Dr. Kaul was also capable of performing the surgery. Therefore, the doctors treatment orders are not neat and clean as well as the consent form is invalid and illegal under the eye of law. In this respect we may mention to the judgment passed by the Honble Supreme Court in a case between Samira Kohli vs. Dr. Prabha Manchanda & Another, wherein Their Lordships have held that a doctor has to seek and secure the consent of the patient before commencing a treatment including surgery and the consent so obtained should be real and valid, which means that the patient should have the capacity and competence to consent, his consent should be voluntary and on the basis of adequate information concerning the nature of the treatment procedure so that he/she knows what is consenting to. In the instant complaint the patient had capacity and competence to give consent as he was in conscious state. In the present case though valid consent was not taken from the patient, the OP-4 and 5 have made false statement in their evidence and moreover without taking any valid consent from the patient the how the OP-4, such an experienced surgeon performed CABG operation it is not clear to us. Moreover before operation the method of the procedure has not been explained before the patient. Above all the OP-4 did not bother to peruse any report of the anesthesiologist, as no consent for giving anesthesia was taken from the patient himself by an anesthetist and such non-obtaining of informed contest by the OP-4 is tantamount to deficiency in service. As non-taking consent from the patient himself is not permissible in the eye of law (as per Honble Supreme Courts decision), and no evidence has been put forward that consent was taken from the patient himself, in our opinion the Complainants have successfully established that no consent was taken from the patient himself for CABG operation. In this respect the Complainants have filed Medical Text (Wylie and Churchill-Davidsons A Practice of Anesthesia, Seventh edition, edited by Healy and Knight), wherein it is stated in Chapter-26, under the heading Implementation of Pre-operative Evaluation that there at least three methods for organizing preoperative evaluation efficiently. First, the surgeon, internist, family practitioner and anesthesiologist who see the patient before a scheduled procedure can obtain the history and perform the physical examination. Second, a clinic can be set up in an outpatient facility so that these two tasks are performed early enough to ensure that laboratory tests or consultations can be obtained without delaying schedules. Third, a questionnaire answered by the patient can be used to indicate likely disease process and appropriate laboratory tests. In the instant case the OPs did not bother to show any respect to the above-mentioned settled principles of medical science, which they are bound to oblige without raising any questions. Such action in our opinion is tantamount to deficiency in service on the part of the OP-4 as deviation from standard medical practice occurred on behalf of the OP-4 and for such deficiency the OP-4 is liable to pay compensation and damage to the Complainants and we are inclined to direct the OP-4 and 5 in a stringent manner that henceforth they should not provide medical treatment or perform any procedure in such a negligent manner.
42. As the OP-4 was a cardiac surgeon, who performed CABG upon the patient and the OP-5 being a assistant doctor of OP-4, it was their duty to write the surgical note or OT note properly and legibly. After perusal of the said note it is seen by us that there are several over writings, pen through, incorporations and unreadable handwriting. There is no mentioning when the operation started and it ended; it was only written that the procedure was for 411 minutes. The Complainants in this respect has relied on the medical text- Bailey and Loves Short practice of Surgery, 24 edition, wherein under the heading of Operating Note (page-40, chapter-3) it is stated that operating note is an important document. It should be legible, comprehensive and signedIt is a contemporaneous record and therefore carries great weight in any subsequent inquiry into complications or an adverse outcome But in the instant case though signature of the surgeon is there, but it is illegible and the handwriting is also not legible, moreover 411 minutes is written without ant signature inspite of pen through. Henceforth the OP-4 shall follow the proper method as per medical guideline at the time of writing surgical note. As the OP-4 has stated that he is used to write and put his signature in this way, in our opinion the surgical note is being a very vital document of the patient, it is not a place to display his style of writing, he is under obligation to abide by the medical norms and guideline in this respect. The OP-4 and 5 have denied in a straightway that after CABG re-explorations were done on several occasions. We have noticed from the doctors treatment orders and the blood balance sheet that after CABG the patient was taken to the OT on several occasions due to severe bleeding episode and his chest was re-opened and blood clots sucked out. Obviously this performance was done by the OP-4 as he is the only cardiac surgeon in this case who performed operation. As per medical books after surgery re-explorations may occur and patient may be taken in the OT, but there should be surgical note regarding re-explorations and such incident should be informed to the patient party. Regarding re-explorations there is no grievance of the complainants; moreover the Complainants never raised their protest and allegation in respect of procedure of CABG and re-explorations after CABG. The Complainants have alleged that why the incident of re-exploration has not been disclosed to them and where the patient was taken on several occasions after CABG, why there is no operation or surgical note. In this respect we are of the opinion that it was the duty of the OP-4 to make OT notes for such occasions, when the patient was taken into the OT and as the OP-5 claimed that he assisted the OP-4 in the OT, it was also his duty to prepare the OT note and the OP-5 also failed to discharge his duty in this respect. We have mentioned earlier that the surgeon should prepare surgical note in a specified manner. Moreover where actually the patient was taken in the OT on several occasions after CABG, concealment of such facts in the reply by the OP-4 and 5 cannot be entertained and on affidavit the OP-4 and 5 have made false evidence and reply. Such concealment is an example of negligent attitude in their performance, which caused mental pain and agony among the Complainants. Though the OP-4 and 5 claimed that risk factor involved in the CABG, they have failed to show us any documentary evidence in support of their claim. The OP-4 and 5 in their replies have tactfully avoided the questions by saying not a fact and in most cases they made false replies knowing fully well the actual truth. Those answers, which have been made in a positive way, in that respect also they have miserably failed to adduce any cogent evidence in support of their contention.
43. The Complainants as well as the OPs have filed Experts Opinions from the respected doctors. Let us first analyze the expert opinions of the doctors who gave their valuable opinions in favour of the OPs. We have noticed that Professor Bhabatosh Biswas and Dr. Alfred C Woodward have adduced their expert opinions and accordingly they were cross-examined by the Complainants through questions and they made replies accordingly.
44. Professor Bhabatosh Biswas being the Head of the Department, Cardio Thorasic Surgery, R. G. Kar Medical College Hospital has opined that the doctors and the surgeons who were involved in the matter of treatment and operation (CABG) made proper diagnosis, advised necessary tests and investigations and adopted the right course of treatment for the said patient. He has also mentioned that proper consent was obtained prior to surgery and administering of anesthesia and treatment was provided as per standard procedure. But we have noticed the said Expert has avoided most of the questions placed before him by the Complainants. He replied in this way i.e. it is a matter of fact, it is not a fact, I do not know, I cannot remember, matter of records, I cannot say etc. Where the Complainants wanted to know his valuable opinion regarding consent of the patient for CABG, the Expert opined that the question is meaningless and it is not a fact (Q-5 & 9), where his opinion was sought for regarding non-applying heparin on 13.02.2007 and non-performing ACT inspite of specific direction by a doctor, the answer of this Expert is it is not a fact (Q-8). The Expert was asked that wherefrom he found that proper consent was obtained for surgery and anesthesia, the Expert has replied that he stated in his evidence on the basis of the documents (Q-11), but nowhere in his evidence has mentioned the source of information regarding taking proper consent from the patient himself. In our view the actual truth is that there are no such papers wherefrom it can be evident that proper consent for CABG as well as anesthesia was taken from the patient himself. In Q-17 the Complainants wanted to know his valuable opinion in the context that why no surgical note was prepared on 15/16/17.02.2007 when the patient was moved to the OT for certain operations for which chest was also required to be re-opened, the answer of the Expert is that surgical note is prepared only when an operation is done, but in this respect we have noticed from the blood balance sheet as well as from the doctors treatment orders that the patient was moved to the OT on two occasions and his chest were re-opened and blood clots were sucked out, so where the patient was taken to the OT for several times after the CABG there should be OT note for every occasion as per medical ethics, where there is clear direction that surgical note should be written and properly signed by the operating surgeon clearly and legibly. Therefore in our view the Expert has failed to give his opinion in this respect. On perusal of the evidence of the Expert we have noticed that though he opined that treatment was provided as per medical standard and treatment and diagnosis were perfect, but he has failed to explain clearly how far the treatment was as per medical standard. In our opinion that the Expert has given a biased opinion, which cannot be accepted either legally or medically. As Professor Bhabotosh Biswas has adduced his evidence and replied the questions going beyond the medical documents and records as well as medical books and literatures, we are not in a position to accept his opinion as an impartial opinion. We are of the view that Expert opinion should be an impartial one, based on standard and settled medical practice as well as supported by medical books, moreover the opinion cannot go beyond the medical documents and papers filed by the patient party.
45. Dr. Alfred C Woodward, being a doctor and Associate Professor in the department of Cardio Thorasic Surgery in Ramkrishna Mission Seva Pratisthan, has given expert evidence. After careful perusal of his affidavit it is seen by us that the affidavit is the verbatim reproduction of the affidavit of professor Bhabatosh Biswas. However considering the fact that in both the affidavits there is no variations and they are verbatim reproductions, which gives room for arriving at a conclusion that these might have been drafted by the Advocate or by some interested person and the doctors might have blindly appended their signatures without any application of their mind. Hence they lose much of their evidentiary value (IV (2007) CPJ 239 NC, in a case of Bassi Hospital Private Limited vs. Pankaj Gupta and Another) as his evidence is completely similar in description with the evidence of Professor Bhabatosh Biswas. The difference between the two evidences is only from the point their qualifications names and their place of service. We have noticed that the Complainants put the same questions to Dr.Woodward as was put before Professor Bhabatosh Biswas. It is curious to us that the answers of the two Experts are also almost similar and in most cases the language is also same. Therefore the Expert opinion of Dr. Woodward cannot be accepted either legally or medically as one of them did not applied his mind at the time of writing his Expert opinion and copied from the evidence of other Expert blindly. Therefore we cannot give any cognizance and importance to the opinions of these Experts at the time of adjudication of this complaint.
46. SIX EXPERTS OPINIONS OF THE PARTIES :
The Complainants have filed expert opinions from four doctors i.e. Dr.Swapan Kumar Jana, Dr. Ajay Kumar Gupta, Dr. Tushar Kanti Ghosh and Dr. Madhusudhan Pal.
47. DISCUSSION OF THE OPINIONS OF THE EXPERTS OF THE OPS :
Let us discuss the opinions of the Experts for the Complainants one by one. First we are to incline to narrate the expert opinion of Dr.Swapan Kumar Jana. He being a pharmacologist has adduced expert evidence in this complaint case, wherein the case is related alleging medical negligence on behalf of the Complainants in case of the patient who was suffering from Cardiac problem and CABG surgery was performed. There are several decisions of the higher Courts that the doctor who does not posses vast knowledge in the said filed in which the patient is/was suffering from, the opinion of the said expert cannot be termed as Expert Opinion. Dr. Jana in his evidence has mentioned that the treating doctors of Sri Anjan Chowdhury have failed to provide proper medical service as per standard medical practice. But in our view it is difficult to accept such opinion from Dr. Jana as an Expert Opinion as Dr. Jana is not a Cardiologist or Cardio Vascular Surgeon; moreover he has no specialization in this field and no clinical experience. We cannot accept Dr. Janas opinion as an expert opinion due to the reason that Dr. Jana was not associated with the regular treatment of the patient. Dr. Jana did not buttress his evidence by reliable medical literature and hence the opinion given by him might be exclusively his personal. We have noticed that in a judgment the Honble National Commission had strongly observed against Dr. Jana who gave his evidence in a case relating to pediatric treatment. In other words he has been found to offer his expert evidence in almost all types of cases involving medical negligence, which is very unusual for any specialist or expert. Therefore his purported opinion has no value and cannot be treated as Expert Opinion because being a Pharmacologist he opined in the filed of Cardiology. In the case of Mrs. Sadhya Dutta Banik passed by this State Commission, Dr. Jana adduced evidence in support of the Complainants case; the Commission also frowned upon his opinion in the said case.
48. Dr. Ajay Kumar Gupta has mentioned in his evidence that the doctors who attended Sri Anjan Chowdhury during the period from 01.02.2007 to 21.02.2007 and performed CABG operation upon him did not apply their brain and mind because the patient was suffering from diabetes mellitus and the doctors did not follow the accepted protocol for controlling his blood sugar level by way of giving proper insulin doze. He has further mentioned that the doctors have violated the medical ethics due to non-obtaining informed consent for CABG from the patient himself and due to rash and negligent act on behalf of the doctors who attended him, Sri Chowdhury died. Regarding such expert opinion we are of the view that Dr. Ajay Kumar Gupta got M.D. in Forensic Medicines and does not have any Post Graduate Degree in Medicine or Surgery or does not possess any specialization in cardiology or cardio-thorasic surgery. Moreover, he never treated any Cardiac patient because he never treated any living person and always provides his service to the dead body of a human being. So the doctor who had no opportunity to provide service to the living human being his opinion cannot be granted either lawfully or medically in case of a patient who was suffering from Cardiac problem and CABG was performed upon him.
49. Dr. Tushar Kanti Ghosh has adduced expert evidence in favour of the Complainants case wherein it is stated that CABG, HIV consent was not taken from the patient himself, ACT monitoring seems to be very unsatisfactory and lack of transparency and proper explanation was not given to the patient and the patient party which was utmost important in medical ethics. In the reply Dr. Ghosh has mentioned that he has no Post Graduate Degree in any field of Medical Study or Surgery and no specialization in Cardiology. It is also mentioned by him that he worked in the Department of Intensive Care Unit of SSKM Hospital for 15 years and most of the time he was as In-Charge of the said unit. From the said replies we are not in a position to understand what he is using to do in the ICU of SSKM Hospital for 15 years and what was his specific job, the same has not been mentioned by him. Moreover, he has stated that he has no specialization in Cardiology and does not have any Post Graduate Degree in any field of Medical Study or Surgery. Therefore the opinion of Dr. Ghosh cannot be termed as an expert opinion in case of a serious patient like Sri Chowdhury who was suffering from severe Cardiac problem and ultimately CABG was done.
50. Lastly, we are discussing the expert evidence adduced by Dr. Madhusudhan Pal in support of the Complainants case wherein it has been stated by him that the death of Sri. Chowdhury was directly related to rash and negligent act on the part of the doctors under whom the patient was admitted and the doctor who conducted the operation and administered anesthesia upon Mr. Chowdhury and also the other doctors who time to time attended the said patient at B.M. Birla Heart Research Center from the date of admission (01.02.2007) till his death (21.02.2007). In support of such contentions Dr. Pal has stated that during CABG operation on 14.02.2007 the treating doctors did not apply proper professional skill and ability and deviated from the standard accepted principal of optimal patient care by not taking proper informed consent from the patient himself from a high risk surgery, by not arranging anesthetic assessment and proper consent for administering anesthesia before surgery, by not monitoring heparin action upon the patient by way of ACT test though advised, by not doing urine culture and urine analysis of the patient in spite of getting report long time before the CABG in hand. Therefore, not following the normally accepted medical practice of treatment and surgery the doctors definitely committed dereliction of duty to exercise reasonable degree of skill and care and this dereliction of duty was directly responsible for the damage in the form of different sorts of post operative complication including repetitions of surgical procedure and worsening of clinical condition which were directly reasonable for the death of Mr. Anjan Chowdhury. We have perused the evidence given by Dr. Pal and it is seen by us that he possess specialized knowledge in Cardiology and he is M. Ch (Cardio Thorasic Surgery) and he got M.S. in Cardio Thoracic Surgery. He was attached with N.R.S. Hospital, Kolkata from 1986-1989, at R.G. Kar Hospital from 1989-1992, at SSKM Hospital from 1992-1994 and again at R.G. Kar Hospital from 1994-2002 and since 2003 he is attached with Medical College, Kolkata. Dr. Pal was cross-examined by the OPs against Q-13 made by the OPs wherein the OPs claimed that the report of the Trop-T test of the patient was positive, in this respect Dr. Pal wanted to know from which medical record the OPs made such comment as there is no reflection in the doctors treatment orders that the result was positive though the test was suggested on 01.02.2007. Dr. Pal has replied in respect of the Q-17 of the OPs that proper informed consent for surgery and anesthesia before a planned CABG had not been taken from the patient himself while he was absolutely in a position to give consent physically and mentally. From the signature in the blood transfusion consent by his own hand writing on 14.02.2007 indicates that the patient was quite in a position to take a prudent decision in respect of an informed consent for surgery and anesthesia. Dr. Pal has in this respect mentioned that the patients autonomy was not honored in this particular case, which is a complete deviation from the standard medical practice and also an act of negligence. In case of urinary track infection (Q-19) Dr. Pal has replied it is a standard practice to conduct urine analysis and culture/test before a surgery specially when it is a planned surgery and more over there is evidence of UTI, therefore there was ample time in the hands of the doctors before the said surgery to prescribe for conducting urine analysis and culture. This expert has also thrown some light that UTI can leads renal dysfunction and renal shut down and in this particular case the final report of death reveals that one of the cause of the patients death is the deceased condition of Kidney and all the medical report suggested that there was renal shutdown during post-operative period. In this respect the Dr. Pal has further stated (Q-no 21) that UTI was detected before six days of the CABG operation so, without administering antibiotic blindly to arrest the infection it was the duty of the treating doctors to go for appropriate tests as per standard medical practice and protocol considering the patients safety and care but unfortunately it was not done.
51. On careful perusal of the evidence and replies given by Dr. Madhusudhan Pal we are of the opinion that his opinion is the only opinion which can be accepted as Expert Opinion legally and medically because he gave his evidence and replied all the questions put to him by the OPs based on medical ethics, standard practice, medical books and literatures not hypothetically. He has not given his valuable opinion blindly and in a routine manner in favour of the Complainants, on the contrary he has proved the doctors negligence by citing medical ethics and standard medical practice.
52. Therefore in view of the abovementioned six Experts Opinions two were given by the OPs Experts and four given by the Complainants Experts, perusing all the opinions we are inclined to accept `the opinion of Dr. Madusudhan Pal as an Expert Opinion as Dr. Pal has opined after applying his mind to the medical documents and records of the patient concerned and his opinion supports the standard medical practice and norms.
53. GENERAL DISCUSSIONS :
The Complainants have made allegations on several points:
A) Informed consent for CABG not taken from the patient.
B) Risk factor of the surgery for CABG not explained.
C) Anesthetic consent not taken before CABG operation.
D) No pre-operative Anesthetic assessment of the patient done.
E) No proper pre-operative care taken in case of a.
surgery was done with infection, b.
Heparin a major anticoagulation not monitored, c.
No effective steps taken to control blood glucose before surgery and angiography site bleeding harm.
F) Incident of post operative re-explorations not documented.
G) No surgical note is available for re-explorations.
H) No medical board formed in right time.
I) Consent for HIV test and blood transfusion is illegal.
J) Critical patient was treated with other patients test sample.
K) Final bill not provided inspite of written demand.
L) Improper recording of case history.
M) Improper recording of operation note and bed-head ticket.
N) OP doctors did not write registration number.
O) False claim of attachment with Cleveland Clinic Foundation.
P) False advertisement using the name of Ministry of Health.
54. After careful perusal of the entire records, documents, evidences of the parties, questions and replies given by the parties, experts opinions we are inclined to discuss some relevant points-
54.(A) Regarding the allegation of the informed consent from the patient himself for CABG operation we have noticed that no valid consent was taken from the patient himself, consent for the CABG operation was taken from the son and the daughter of the patient though in the printed consent form it was written that everything has been explained to the patient in respect of nature and effect of the operation and the patient understood the said explanation. In respect of this allegation we have explained in detail in the body of this judgment and in this respect in our opinion that there was deficiency in service on the part of the OPs including the OP-1 and 3 as the format of the consent form is not valid as per specified format of the West Bengal Medical Council.
54.(B) The risk factor of the CABG operation was not at all explained to the patient, as the OPs did not bother to take any consent for such operation from the patient. As per the opinion of the OPs as the patient was suffering from anxiety the high risk involved in the operation could not be explained. But we have noticed that High risk surgery was disclosed to the Complainant-2 and 3 and they put their signatures on the High Risk Surgery consent form on 11.02.2007. The Complainants could not show us any medical literature and books that the surgery involved high risk should be explained to the patient himself. Therefore the Complainants have failed to prove this allegation.
54.(C&D) It is true that anesthetic consent was not taken from the patient himself, though it was very necessary moreover the patient was a diabetic one. We have discussed on this point mentioning the medical books that what should be done by an anesthetist.
Therefore on this point there was deficiency in service as well as medical negligence on the parts of the OP-2 and 4 because under the OP-2 the patient was admitted and the OP-4 was a conducting surgeon, who without perusing any anesthetic consent performed surgery. The OP-2 and 4 did not bother to show any respect to the standard medical norms and practice.
54.(E) It is true while surgery was done the patient was suffering from Urinary Track Infection and the doctors did not bother to control the said infection though it was a planned surgery. We have discussed on this allegation mentioning medical books and as per the said authentic book in case of any surgery infection should be controlled specially where in case of planned surgery the surgeon has the authority to defer the date of surgery in case of infection. In this respect the OP-4 being a surgeon did not care to follow the standard and accepted medical practice. As per medical guideline pre-operative measures should be followed cautiously and very carefully, but in the instant case the said measures were not followed by the OP-4. In respect of not monitoring of Heparin, a major anticoagulation we have noticed from the doctors treatment orders that on 05.02.2007 low modecular weight hepain (Clexane) was given by injection, so it proves that the patient was on LMWH-Clexane and which was admitted by the OP-2. But a day before surgery Heparin was prescribed along with ACT checking and after four hours then continues Heparin according to the ACT. But whether ACT was done or not there is no reflection in the doctors treatment record. All the OPs have stated that instead of heparin low modecular weight Heparin was given and due to that reason ACT was not done. But it is curious to us that why the advice dated 13.02.2007 at 6.00 p.m. was not followed, there is no explanation and why low modecular weight heparin was given there is no also explanation, moreover whether actually the low modecular heparin was given to the patient or not, there is no document before us. The OPs have failed to show us that who prescribed low modecular heparin to the patient and on what reason on 13.02.2007. But we have noticed from the surgical note (Page-95 of the complaint) that Heparin was neutralized with Protamine. In this respect we are to say where Heparin was not given as per replies of the OP-Doctors, why it was written that Heparin was Neutralised, in this respect the OPs-Doctors and their Experts also have failed to give any satisfactory answers in accordance with the medical guideline. From the medical literature it is evident that in case of CABG operation recommendation of Heparin is the standard practice along with ACT, where ACT not done overdose of heparin is considered fatal. As per medical literature Unfractioned Heparin or any Anticoagulation drug always needs close monitoring, no contra view can be cited anywhere but LMWH may not always required monitoring. We have noticed that Dr. Bhabatosh Biswas, Expert of the OPs has also answered against the question no-33 that Heparin is required to be monitored. Dr. Subho Dutta in his evidence (para-6 page-4) has stated that the patient was on low modecular heparin. From the medical literature it is evident that ACT is not required for monitoring low modecular weight heparin, it is only required while the patients get Unfractioned Heparin. From such settled principle it can be easily said the advice of ACT test itself transpires that it was not low moducular weight heparin. From the medical literature Lab Test Online it is evident to us that ACT is required or ordered when a patient is receiving high dose of Heparin to prevent clotting during surgical procedures such as a cardiopulmonary bypass; when heparin levels are too high to allow monitoring with a PTT test and or when a rapid result is necessary to monitor treatment. After a standard dose of unfractioned heparin, coagulation parameters must be monitored very closely to prevent over or under anticoagulation. Now let us see what Heparin is. As per medical text Heparin is a type of blood thinner used by physicians to thin the blood. This thinning prevents new blood clots from forming and prevents the enlargement of existing ones. Now we are to see why Heparin is used- As per medical text Heparin is an anticoagulant (blood thinner) that prevents the formation of blood clots. It works by blocking reactions in the body that lead to blood clots. Heparin is used to treat and prevent blood clots in the veins, arteries or lungs. It is also used before surgery to reduce the risk of blood clots.` No contrary medical literature/book has been filed by the OPs. From the abovementioned discussion we are of the opinion that the patient was prescribed for heparin and ACT accordingly with particular intervals on 13.02.2007 and the OT note reveals that the patient was Heparanised. These two documents are tallied but the replies, arguments and affidavits of the doctors even their experts opinions have stated that as the patient was on low modecular weight heparin, ACT was not monitored and the same was not necessary. We are to say how the OPs-doctors and their experts can go beyond their own OT note and doctors treatment orders. As per medical ethics every advice of the doctors should be written clearly and legibly in the bed head ticket/doctors treatment orders, but in the instant case there is no reflection that a day before surgery low modecular weight heparin was prescribed for the patient, how the OPs-doctors has given such false and fabricated statement on affidavit, it is beyond our knowledge and it is more curious to us that the two doctors Dr. Bhabatosh Biswas and Dr. Woodward who gave their expert opinions in favour of the doctors, they are also negligently, callously and arbitrarily have adduced their opinion not based on any medical books, literature, medical ethic, guideline and standard medical literature. It is admitted fact the said two doctors being experts in the said field have adduced their opinions. In our view the said Experts of the OPs adduced their evidence blindly only to hide the negligence of the Ops-Doctors and the Experts gave opinions like a businessman only to grab money from the OPs. It is very unfortunate to say such specialized doctors without providing proper treatment towards their patient, giving false and non-medical opinions only with a view to earn money through an illegal way. In our opinion the OPs-Doctors as well as the two experts of the OPs should be punished in the eye of law and by the Medical Council of India because they have failed to corroborate their opinion by any medical ethics and standard medical practice. In the context of Heparin and ACT test the Complainants expert Dr. Madhusudan Pal has opined that when a doctor in the doctors treatment orders specifically recommended ACT test during administering Heparin on 13.02.2007, but such test was not done or carried out, it is act of definite negligence on the part of the treating doctors. Therefore nowhere the expert has stated that due to non-monitoring of the ACT the patient died, so we cannot say that due to non-monitoring of the ACT test Sri. Chowdhury died, but it can safely be said there was medical negligence on the part of the treating doctors in not following the standard medical practice which they were bound being doctors. No where they have stated that they accepted more developed technique of treatment and in spite of their honest effort the life of the patient could not be saved. In respect of taking effective steps to control blood sugar of the patient before surgery and angiography, we have noticed that the OPs have maintained blood sugar chart, from where it is evident that insulin was given to the patient as per his sugar level and in routine manner the OPs checked his sugar level. In respect of bleeding episode from the angiography site as well as after the CABG operation, the Complainants could not prove that due to non-checking of blood sugar bleeding could not be controlled by the OPs. Bleeding episode is an admitted fact, but whether there was any relation with blood sugar, the Complainants failed to prove the same by adducing any cogent evidence.
54.(F&G) From the blood balance sheet it is evident that after the CABG operation on 14.02.2007 the patient was transferred in ITU at
6.p.m. on 14.02.2007.He was taken to the OT again on 16.02.2007 at 3.00 a.m. and his chest was opened, again on 17.02.2007 at 1.00 a.m. the patient was taken to the OT again and this time also his chest was opened. It is pertinent to mention that after the CABG operation on 14.02.2007 ACT was started on 15.02.2007 at about 3.00 a.m., but this time why ACT became necessary in that respect nothing has been mentioned in the doctors records and where the patient were taken to the OT on two occasions after CABG and admittedly his chest was opened, in that respect the OP-4 and 5 did not bother to write any surgical note for those occasions, which is mandatory as per standard medical ethics where the surgeon is under obligation to prepare a surgical note along with his signature and the said doctor should write the OT note clearly and legibly. The OP-5 is liable in this respect as he has stated that he assisted the OP-4 in the OT and where the matter is related with the OT the OP-4 and 5 shall be jointly liable. Such violation of the medical ethics cannot be supported either legally or medically and we are inclined to direct the WBMC to take proper steps against such doctor who does not bother to abide by the standard medical practice and norms and performs casually and carelessly and they are more interested to get a hefty pay package than to provide proper and standard treatment to their patient. Such violation of medical ethics is tantamount to medical negligence on the part of the OP-4, which caused mental pain and agony to the patient party. Moreover the OPs denied such re-explorations even their experts have also made false statement in this respect. It is curious to us that such incident re-explorations were not informed to the patient party. After careful perusal of the doctors treatment orders we have noticed that though on 16.02.2007 at 3.00 a.m. the chest of the patient was re-opened, but the patient party did not get any information about such re-explorations till 18.02.2007 and on that date at about 11.00 a.m. the doctor for the first time directed to inform the patient party about the condition of the patient. From the date of CABG operation the OP-4 claimed that successful operation is done, but we have noticed the patient did not get his sense till his death and moreover in the meantime on two occasions the patient was taken to the OT due to severe bleeding episode and re-explorations were done by Dr.-OP-4, but he suppressed such critical condition of the patient to the patient party. Such suppression of the actual truth to the patient party in respect to their patients condition cannot be encouraged in the eye of law and due to such inhuman mentality and attitude of a doctor he/she should be punished legally and medically and in this respect we are directing the West Bengal Medical Council to take very stringent action against such doctor (OP-4) and in our opinion such doctor should not have any authority to carry on medical practice in this way and which should be stopped immediately. As the OP-4 is an employee of the OP-1, in this respect we are of the opinion that the OP-1 has vicarious liability. Due to such deficiency, negligence, callousness the OP-1 and 4 shall pay compensation to the Complainants.
54.(H) In respect of formation of medical board we have noticed that it was formed on 17.02.2007 in the evening when the patient went out of the control of the OP-4. It is evident from the documents that after operation the condition of the patient was deteriorating and he never gained his sense till death, moreover there was severe bleeding episode of the patient and for this reason he was taken to the OT for two occasions and his chest was opened, but at that time the OP-4 did not bother to form a medical board and to take second opinion from the Expert. Therefore the allegation of the Complainants that the OPs have failed to form medical board in right time is proved from the doctors treatment orders. It is seen by us that since 01.02.2007 till 21.02.2007 the OPs were negligent almost in every steps in case of providing proper treatment to the patient following medical guideline.
54.(I) Regarding HIV consent we are of the opinion such consent form is an example of casual attitude and callous procedure taken by the OPs towards the patient because in the said alleged consent form Sri. Chowdhury gave permission to Chumki Chowdhury to perform HIV test of his blood. Moreover in this context the OPs did not maintain any confidentiality as per NACCO guideline. But in our opinion the blood transfusion consent is not an invalid consent because the patients condition may be critical on such presumption the Consent was taken before hand from the patient though it is admitted fact that before operation blood and blood product transfusion was not done.
54.(J) From an investigation report it is evident that while the patient was in ITU, the said investigation report shows that the patient was in CCU, such callousness cannot be expected from B.M. Birla heart Research Centre. Whether any wrong treatment was provided to the patient based on the report of the CCU patient, the Complainants could not prove the same. Such action cannot be termed as deficiency in service; it can be termed as callous and casual attitude of the OP-1.
54.(K) It is true final bill was not given to the patient party in spite of their demand in writing, therefore the OPs is not in a position that the Complainants did not pay the Hospital bill though they provided service to the patient. In such non-payment of bill there is no role of the Complainant because until and unless the bill is produced, the Complainants are not in a position to pay the same. We have noticed that the recorded Advocate for the Complainants Sri. Ashok Nath Mukherjee also prayed for the bill in writing, but to no effect.
54.(L) Regarding the allegation of improper recording of the case history, we do not find anything improper recording in the case history of the patient except the age of the patient, but in our opinion either mis-statement from the patient party or due to slip of the pen such error has been created. Such fact does not prove any deficiency on the part of the OP-1.
54.(M) Undoubtedly the operation note and bed-head ticket were not written properly because in case of operation note there are several incorporations, over writings and in the pro-formatted OT note several hand writings were made, it is not understood when the CABG operation started and when it ended, one hand written paragraph is in the OT note, but who wrote the said paragraph there is no signature. In respect of bed-head ticket though the OPs claimed that as per direction given by the OP-2 on 01.02.2007 Trop-T test was done and the report was positive and based on the said report CABG was performed and became necessary, but we are not in a position to find out that when and by whom the patient was prescribed for Trop-T test and what was its result, there is no reflection in the doctors treatment orders, the OPs though claimed that on 13.02.2007 low modecular weight Heparin was given and due to this reason ACT was not done as it was not necessary, but in the doctors treatment orders nowhere low modecular weight heparin was prescribed and who prescribed the same for the patient it is also unknown to us. Similarly in the doctors treatment orders it was not written by the doctors that the patient was suffering from severe bleeding episode after his CABG operation, though the OPs claimed that the critical condition was informed to the patient party, but there is no reflection in the order sheets till 18.02.2007, but in the meantime re-explorations were done on two occasions and for this reason the patient was taken into the OT. We have mentioned earlier that regarding the two re-explorations there is no OT note and the doctors treatment orders were not written perfectly in the context that when re-explorations were done and the reasons behind it. Therefore, in our opinion the Complainants have successfully proved their allegation in this regard.
54.(N) In respect of writing registration number by the doctors in their prescriptions, we are of the opinion that the Complainants could not prove that prescription and doctors treatment orders are similar in description and meaning. It is an admitted fact that as per WBMC Act doctors should write their registration number provided to them in prescription and certificate etc, but it is not mentioned there that the doctors should write their registration number in the doctors treatment orders/bed-head ticket. As the Complainants have failed to prove this allegation by adducing cogent evidence and documents, this adjudication cannot go in favour of the Complainants.
54.(O) There is no doubt that the patient went to the OP-1 on 01.02.2007 due to his anginal pain from which he was suffering for a week. The first allegation of the Complainants is that the OP-1 though is displaying their assistance with the Cleveland Clinic Foundation, but actually it has no assistance or affiliation from the said Clinic Foundation and as per the Complainants displaying such advertisement the OP-1 is trying to allure the patient and patient party, which is an unfair trade practice. In this respect we have elaborately discussed on this issue earlier in the body of this judgment and the same need not to be mentioned again. But which we have not discussed earlier that is in our opinion that the patient and the patient party did not go to the OP-1 being allured with the advertisement displaying in every medical documents of the OP-1. As per records the patient was in touch with the OP-1 since 1995 when PTCA was done at the same Hospital (OP-1) and since the said operation the patient went there on several occasions for check up and admittedly he was under the treatment of the OP-2 since then. In our view undoubtedly the OP-1 adopted unfair trade practice by displaying misleading advertisement, but the Complainants have failed to prove that due to such adoption of unfair trade practice the patient died. Therefore for such unfair trade practice on behalf of the OP-1, the Complainants are not entitled to get any relief in their favour.
54.(P) Regarding false advertisement using the name of Ministry of Health the allegation of the Complainants is that for attracting and inducing the patient party the OP-1 and 3 used false claim by way of false and misleading advertisement published in widely circulated news paper and periodicals claiming that Ministry of Health, Government of India had established a body namely Quality Council of India and such council had accredited the OP-1 as Indias first NABH Accredited Hospital. It has been further stated by the Complainants that the QCI (Quality Council of India) had been set up by Ministry of Commerce and Industry under its sub-department i.e. Department of Industry and Policy and Promotion and QCI set up a board namely National Accreditation Board for Hospitals and Health Service providers (NABH) who accredited OP-1 as Indias first NABH Hospital. Further allegation is that as the name of Commerce mismatch with the term Hospital, so purposely to mislead the consumers/patients the false advertisement is being made using the name of Ministry of Health which helps them to carry on unfair trade practice in full swing. In this respect we have notice that in Anandabazar Patrika, 2007 and in Dainik Statesman (Bengali Version), dated 01.03.2007 advertisement were given that at the instance of QCI NABH was given which is under the Ministry of Health, Government of India. In this context the Ld. Counsel for the Complainants came to know from the Ministry of Commerce and Industry, Government of India through a letter dated 05.09.2008 issued by the Ministry of Commerce and Industry, Department of Industrial Policy and Promotion (L.R. Section) that the Quality Counsel of India is an autonomous organization under the administrative control of Ministry of Commerce and Industry, Department of Industrial Policy and Promotion. On behalf of the said Department Deputy Secretary to the Government of India intimated the Ld. Advocate for the Complainants that QCI had already sent an e-mail and terms and conditions for maintaining NABH accreditation furnished by QCI was also sent by this Department. The Ld. Counsel for the Complainants wanted to know from the said Department i.e. Ministry of Commerce and Industry (Department of Commerce) how and under which Department/Ministry of the Government of India, QCI had been established. In the said letter the Ld. Counsel has stated that if the claim of QCI as an autonomous body established under this Ministry is found to be false, he wanted to get justice before the court of law in the medical negligence case. We have noticed that the Ld. Counsel for the Complainant Mr. Ashoke Nath Mukherjee sent a letter to the Honble President of India, Honble Minister of Health in respect of such query of the Complainants the Ministry of Commerce and Industry intimated the above mentioned information by issuing letter.
From the content of the said letter now it is proved that the OP-1 furnished their advertisement in the newspaper by adopting unfair means stating that the NABH Accreditation was given by the Department which is under the Ministry of Health, but actually it reveals that the organization which has given the OP-1 NABH accreditation, the said organization (QCI) is under the Ministry of Commerce and Industry, Government of India. Therefore, in our opinion through publication of such misleading advertisement in the newspaper the OP-1 adopted unfair trade practice which cannot be entertained and accepted in the eye of law, specially as per Consumer Protection Act, 1986. In this way the Complainants have proved the allegation in this regard successfully by producing cogent evidence.
55. DISCUSSION ON THE EXPERT OPINION GIVEN BY DR.
MADHUSUDHAN PAL.
We have carefully perused the expert opinion given by Dr. Madhusudhan Pal. In the said opinion the Dr. Pal has stated that on the admission date (01.02.2007) though the patient Sri Anjan Chowdhury was prescribed for Trop-T Test (Troponin Test) and it was said by the doctors that the report of the said test was positive, but the expert has said that perhaps such tests was not done because no records is evident either in bills, investigation reports or doctors treatment orders which would suggest that Trop-T Test was done and it was found to be positive. Dr. Pal has opined that no pre-operative anesthetic assessment as per standard medical norms was done because no record has been produced before him in this regard. He opined that anesthetic assessment is very necessary and mandatory and moreover it is ought to be recorded in writing and due consent for administering of anesthesia ought to have been taken from the patient himself prior to surgery specially when the patient himself was capable in giving consent himself. It is stated by Dr. Pal that in the high risk surgery/anesthesia consent form one doctor on behalf of Dr. KaulCardiac Surgeon had signed using the word For moreover the name of the doctor to whom the so-called consent for administering general anesthesia was given is absent, moreover the patient had himself not signed such consent though the patient was capable to do the same. It is stated by Dr. Pal that proper informed consent for surgery and anesthesia in this case before a planned CABG surgery had not been taken from the patient himself while he was absolutely in a position to both physically and mentally to give consent himself. The patient signed in the blood transfusion consent by his own hand on 14.02.2007 which indicates that the patient was quite in a position to take a prudent decisions in respect of an informed consent for surgery and anesthesia but such important consents was not taken and patient autonomy was not honored in this particular case which is a complete deviation from the standard medical practice and also an act of negligence . The consent which was taken from the patients son and daughter also did not specify the name of the doctor whom the consenter is giving consent to administer anesthesia. Therefore, in no way medically or legally the consent for high-risk surgery and anesthesia can be said to be a proper informed consent. In the cross-examination Dr. Pal has said that it is a standard practice to conduct urine analysis and urine culture test before a surgery, specially when there is evidence of UTI (Urinary Track Infection) and it is a planned/elective surgery and there was ample time in hand before the said planned surgery. A doctor should try to know the exact type of infection and cite of infection prior to surgery for the patients safety because UTI can leads. Renal dysfunction and renal shut down, and in this particular case the final report of death reveals that one of the cause of death of the patient is deceased condition of the Kidney and all the medical report of Sri. Anjan Chowdhury suggested clearly that there was a Renal Shut Down in the post operative period. Dr. Pal has further stated that the Patient Autonomy is a world wide accepted medical practice which should be respected because it is the patient only who would take final decision and will give consent for the treatment and surgery, therefore, patients consent is mandatory but where there is an emergency or the patient is incapable of giving consent, in that context consent from the patient is not mandatory, necessary. But in this case the surgery was a planned one and the patient was fully conscious. Though the OPs-doctors have stated that due to anxiety consent was not taken from the patient but while the patient was in a stable conditions then without taking consent from the patient the OPs-doctors have violated medical ethics, norms and standard internationally accepted medical practice which tantamount to gross medical negligence. At least Dr. Pal being an expert and Cardiac Surgeon based on standard medical literature, ethics, books and medical guideline has given the above-mentioned opinion. In this respective Dr. Pal has opined that Gross Medical Negligence has been committed by the doctors-OPs in the instant case centered round the fundamental principals and ethics of standard accepted medical practice.
56. JUDGMENTS PASSED BY THE HONBLE SUPREME COURT & HONBLE NATIONAL COMMISSION :
We may referred to the judgment passed by the Honble Supreme Court of India, reported in IV (2004) CPJ 40 (SC), in the case between Savita Garg vs.The Director, National Heart Institute, wherein Their Lordships have held that It is the duty of the hospital/doctor to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibility.
In the case in hand the OPs have failed to adduce any material in support of their contentions to prove that they provided medical treatment to the Complainant acceptable to medical profession. Moreover it has been mentioned that the OPs have deviated from the standard medical ethics and practice in case of taking proper steps in respect of taking consent of HIV, CABG, anesthesia, control of UTI, improper writing doctors treatment orders, taking pre-operative measures, improper writing of OT note improper writing of re-explorations and failed to the hand over the final bill to the Complainants in spite of written demand, suppression of the actual state of health and condition of the patient to the patient party, displaying misleading advertisement adopted unfair trade practice etc. It is now well settled by various judgments specially in Jacob Mathews case it has been held that merely because the desired result could not be achieved the same is not negligence, if the doctor in treatment has followed standard medical norms. But in the instant case we have noticed that the OPs have failed to follow standard medical norms. Several instances have already been mentioned earlier, now we are inclined to mention another example of deficiency in service and violation of standard medical practice on behalf of the OP nos-2 and 4. In the four corners of the medical records and documents we do not find that consent for anesthesia was taken from the patient himself. Admittedly the patient was admitted under the OP-2, who is a cardiologist and CABG was done by the OP-4. Both the doctors did not bother to search whether there is anesthesia consent from the patient or not before CABG and without the said consent form the OP-4 performed the surgery and where the OP-2 claimed that he was in the OT on 14.02.2007, he also did not apply his mind in this context. Such attitude proves the callousness and casual treatment towards the patient and which is also an example of violation of medical ethics. In this context the Ld. Counsel for the Complainants have relied upon the medical literature, in the chapter-4 of the said literature it is mentioned that the duty of the anesthetist is to ensure patient safety, to safeguard patient welfare, to optimize operating conditions, to prevent injury, to act as the pre-operative physician. Under the heading of Preparation For Anesthesia it is written that In any case, the anesthetist who is to administer the anesthesia during operation should assess the patient pre-operatively and participate in the preparation for surgery. In the said literature under the heading of Consent for surgery and anesthesia it is written that informed consent should be obtained by the surgical team, preferably the operating surgeon, before any sedation is given, but the anesthetist should still explain anesthetic procedures, especially regional and spinal techniques, and discuss potential sequelae. Where added risks pertain, the patient should be informed. In the instant case though the patient was declared as High Risk patient, the OP-2 and 4 did not get any time to find out before the CABG whether any informed anesthesia consent was there or not from the patient himself. Actually we do not find out any anesthesia consent form signed by the anesthetist as well as the patient himself within the four corners of the doctors treatment orders. We may mention to a judgment passed by the Hon'ble National Commission, reported in 2004 CTJ, 175, (CP) (NCDRC), where their Lordships have held that 'As per settled law on medical negligence, it has to be alleged as to which action of the doctor was not as per accepted medical practice and what was done should not have been done or what was not done should have been done, this has to be supported by expert evidence or available medical literature on the subject. In the instant case several examples have been mentioned where the doctors and the hospital authority have violated standard medical norms and practice, moreover Dr. Madhusudan Pal, the Expert has adduced his affidavit based on the standard medical practice and literature, where the Expert has opined that the OPs have failed to provide medical service as per standard medical practice and we have also discussed from the authentic medical text and literature, which proves that the OPs have acted not as per accepted medical practice, in the said text and literature it has been clearly mentioned what procedure should be accepted in case of treating a patient upon whom CABG was done.
57. There are several judgments passed by the Honble Supreme Court and the Honble National Commission where it has been held that in spite of treating patient following standard medical norms the patient dies, the same cannot be termed as negligence on the part of the treating doctor. But in the instant case as per medical text and literature as well as WBMC Act and Experts opinion (Dr. Madhusudan Pal) the OPs have miserably failed to provide medical treatment towards the patient following standard medical norms and as per the opinion of the Expert due to negligence of the OPs the patient died.
58. In the case of Achutrao Haribahu Khodwa and Others vs. State Of Maharashtra and Others (AIR 1996 Supreme Court 2377), the Honble Supreme Court have held that the claim of the Appellants cannot be defeated merely because it may not have been conclusively proved as to which doctors employed by the State in the Hospital or other staff acted negligently which caused the death of the patient. Once death by negligence in the Hospital is established, as in the case here, the State would be liable to pay the damages, (Para-18 of the said judgment).In the instant case as per of the expert opinion due to the negligence of the doctors the patient died, it is an admitted fact that those doctors are the employees of the OP-1, therefore due to their negligent act the OP-1 is liable to the damages to the Complainants on the ground of vicarious liability.
59. Before considering whether the OPs in the present case could be held to be negligent, it will be useful to see as to what can be regarded as negligence on the part of a doctor. The test with regard to the negligence of a doctor was laid down in Bolam Vs. Friern Hospital Management Committee (1957, I WLR 582), it was to the effect that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. This principle in Bolams case has been accepted by the House of Lords in England as applicable to diagnosis and treatment. In the case of case of Achutrao Haribahu Khodwa and Others vs. State Of Maharashtra and Others (AIR 1996 Supreme Court 2377), the Honble Court have held that the duties which a doctor to his patient are clear. A person who holds himself out ready to medical advice and treatment impliedly undertakes that he possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes his certain duties, viz., a duty of care in deciding whether to undertake the case or a duty of care in deciding whether treatment to give or a duty of care in administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. In the instant case no consultation was made with the patient regarding method of the procedure, no consent was taken for high risk surgery, anesthesia, CABG operation, HIV test by the medical practitioners. Therefore in view of the said settled proposition the doctors herein have breached the abovementioned duties and in such way their negligence to the patient is proved. In another case between A.S. Mittal Vs. State of U.P. (AIR1989 SC 1570) the Honble Supreme Court have held that a mistake by a medical practitioner which no reasonably competent and careful practitioner would have committed is a negligent one. The court also took note that the law recognizes the dangers which are inherent in surgical operations and that mistakes will occur, on occasions, despite the exercise of reasonable skill and care. The Court further quoted Street on Torts (1983, 7th edition) wherein it was stated that the doctrine of res ipsa loquitur was attractedwhere an unexplained accident occurs from a thing under the control of the defendant, and medical or other expert evidence shows that such accidents would not happen if proper care were used, there is at least evidence of negligence for a jury. In the case of Indian Medical Association vs. V.P. Santha (1995, 6,SCC,651) the Honble Supreme Court approved a passage from Jackson And Powell on Professional Negligence and held that the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general as professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing service. In Achutraos case the Honble Supreme Court held that .but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended the patient with due care, skill and diligence and if the patient still 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 doctors have failed to prove that they have provided accepted medical treatment and service to the patient or took due care and diligence. From the medical documents and records it is evident that though heparin was prescribed along with ACT test on 13.02.2007, but the doctors have failed to state that whether heparin was given or not, ACT was done or not, on the contrary they have stated that though the patient was given low modecular weight Heparin, ACT test was not required, but within the four corners of the treatment sheets we do not find out any paper where the patient was prescribe for low modecular weight heparin on 13.02.2007. Next in spite of UTI infection the treating doctor did not take any step to control the said infection nor advised for urine analysis or culture as per standard medical practice. There are so many instances mentioned above where the OPs did not bother to follow the settled protocol of medical practice. In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable. As held in Laxmans case (AIR 1969 SC 128) (supra) the Honble Supreme Court held that a medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. In the present case the doctors mainly the OP-2 and 4 did not bother to find whether there was any consent form from the patient himself or whether any anesthetic preparation was made or not as per standard medical guideline. Though after the CABG operation the patient was taken to the OT on several occasions, but the OP-4 did not bother to write any OT note stating why re-explorations were necessary and what step he has take to control the severe bleeding episode and even there is no mentioning of the severe bleeding episode in the doctors treatment orders and what was the reason behind such bleeding, the doctors treatment orders is silent about that.
60. JUDGMENTS FILED BY THE OPS :
The Ld. Counsel for the OPs has filed some judgments in support of their contentions-
a.
(2009) 3 WBLR (SC) 538.
b.
(2010) 1 WBLR (CPNC) 777.
c.
(2009) 3 WBLR (CPSC) 1068.
d.
(2007) 1 WBLR (CPSC) 467.
60.(a) In the first ruling (2009) 3 WBLR (SC)538, we have noticed that the Appellant was faced with a situation where not only was there kidney failure of the patient, but also urinary tract infection and blood infection. An expert of All India Institue of Medical Sciences has opined that in this grave situation threatening the life of the patient the appellant had to take drastic steps. Even if the prescribed Amikacin for a longer period than is normally done, he obviously did it to save the life of the Respondent. In the said judgment in para-39 it has been mentioned that in Halsburys Laws of England the degree of skill and care required a medical practitioner is stated as follows- The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor he is guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown that there is a usual and normal practice, the defendant has not adopted it and that the course in fact adopted is one of no professional man of ordinary skill would have taken had he been acting with ordinary care. The fact and allegations of the instant case are not similar with the aforementioned judgment because in the present case the patient suffering from diabetes and anginal pain. The Complainants nowhere in the complaint petition have alleged that the way of operation or method of operation was wrong, their allegations are that the doctors have suppressed the critical condition of the patient and the OPs have deviated from the standard medical practice and in this regard the Complainants filed authentic medical books and literature in support of their contention, but the OPs have failed to contradict the same by filing any evidence. For this reason the aforementioned judgment is not applicable in the instant case.
60.(b) In the next ruling i.e. (2010) 1 WBLR (CPNC) 777, the Ld. Counsel for the OPs mentioning that regular and proper follow up with doctor who performed the operation is absolutely necessary so that proper remedial measures are taken but the Complainant did not follow up the treatment with the doctor has submitted that after his PTCA the patient did not turn up and failed to follow up the treatment of the doctor. But we have noticed that since 1995 the patient was in continuous touch with the OP-1 and 2 and several tests and examinations were done at the instance of the OP-2, which is evident from the annexure of the supplementary evidence filed by the Complainants. Therefore this judgment is not applicable in the instant case.
60.(c) In the ruling i.e. (2009) 3 WBLR (CPSC) 1068, proper consent for Angiogram and PTCA was taken from the patient himself as well as from his relative and the treating surgeon discussed in detail with the patient before proceeding, moreover the patient was alive for more than eight months since discharge from the concerned hospital. But in the present case no valid consent was taken from the patient himself and the treating doctor never discussed with the patient about the surgery and its outcome. On the whole the Doctors did not bother to abide by the standard medical practice prescribed in the standard medical books and literatures. For this ruling is also not applicable in the instant case.
60.(d) In another judgment i.e. (2007) 1 WBLR (CPSC) 467, the patient is not a consumer in terms of section (2) (i) (d) of the Consumer Protection Act, 1986 as he did not pay any fees for operation as he did not produce any receipts and the patient party could not prove that there was medical negligence in respect of providing proper treatment towards the patient. In the present case it is not the case of the OPs that the Complainants did not pay the bills as raised upon them, but it is an admitted fact that the Complainants could not pay the final bill because after the death of the patient though the Complainants prayed for the final bill in writing, but till the date of filling of the complaint the OPs have failed to provide the same to the Complainants. In the present case the Complainants tried to prove their case adducing expert opinion, citation from medical books and journal, judgments etc. So the abovementioned ruling is not matching with the instant case.
61. RES IPSA LOQUITUR:
The Latin maxim Res Ipsa Loquitur means that the thing speaks for itself. Street on Torts (1983, 7th Edition) mentions where an unexplained accident occurs from a thing under the control of the defendant and medical or other expert evidence shows the such accident would not have happened if proper care were used there is at least evidence of negligence, the doctrine res ipsa loquitur applies. In the judgment passed by the Honble Supreme Court in a case of V.Kishan Rao vs. Nikhil Super Speciality Hospital and Another, (2010 SCCL.COM 288), where Their Lordships have held that in a case where negligence is evident, the principle of res ipsa loquitur operates and the Complainant does not have prove anything (res) proves itself. In such a case it is for the Respondent to prove that he has taken care and done his duty to repel the charge of negligence. In the Spring Meadows Hospitals case the Honble Supreme Court applying the doctrine of res ipsa loquitur have held that even delegation of responsibility to another may amount to negligence in circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing his duties. In Achut Raos case the Honble Supreme Court has applied this doctrine. In the present case the facts speak for themselves. Negligence is writ large. The facts as found by this Commission, in a nutshell, are that Sri Anjan Chowdhury went to the OP-1 due to his anginal (Chest) pain on 01.02.2007 from which he was suffering since seven days. After checking he was admitted under the OP-2 on the said date in CCU, on 14.02.2007 CABG operation was done and after the operation he was transferred in ITU, since operation till his death he was unconscious and at last on 21.02.2007 he died. It is pertinent to mention that he became anuric i.e. urine output was gradually decreasing and after CABG he was suffering from severe bleeding episode, on several occasions he was taken to the OT after CABG where blood clots sucked out and chest was opened, IABP was inserted, dialysis started, renal shut down happen and as per post mortem report one of the cause of Sri Chowdhurys death was deceased condition of Heart, Liver and Kidney. We have noticed from the medical documents and papers related with the treatment of the deceased that no valid consent for CABG and anesthesia were taken from the patient himself though he was very much conscious since admission till 14.02.2007, before CABG operation. The doctor was never consulted with the patient about the High Risk involved in the surgery. The doctor who obtained CABG consent from the daughter and son of the patient on behalf of the OP-4 or the doctor to whom the OP-4 delegated authority for taking consent, we are not in a position that he was capable to perform the surgery. On 13.02.2007 the patient was prescribed for infusion of Heparin @.8ml/hour from 7.00 p.m. till next morning 7.00 a.m. and check ACT after four hours then continue Heparin according to ACT. The above-mentioned advice was given by the doctor (Name of the doctor is illegible) for the OP-4. In the conjoint version, evidence and cross examination the OPs have stated that ACT was not required as low modecular weight heparin was given. But within the four corners of the doctors treatment orders we do not find that when and who has prescribed for low modecular weight heparin to the patient a day before surgery. In this respect as no cogent evidence is not before us and the OPs have miserably failed to produce anything in support of their claim, we can apply the doctrine of res ipsa loquitur in this regard. We are of the opinion that Heparin was given as per dose as prescribed by the doctor on behalf of the OP-4, but negligently ACT monitoring was not done in spite of specific direction. The later incident also supports such contention that after CABG the patient was suffering from severe bleeding episode for which his chest was re-opened on several occasions, IABP was inserted, due to severe bleeding several organs of the patient stopped proper functioning and at last due to deceased condition of multiple organ failure the patient breathed his last. Moreover it is evident from the OT note that Heparin was neutralized with Protamine, which proves that before operation Heparin was given to the patient and as per OPs version ACT monitoring was not done and required before CABG because as per their opinions the patient was given low modecular weight heparin. As per medical literature overdoses of heparin can be fatal, hence it is required to be monitored. The advice of ACT test itself transpires that it was not low modecular weight heparin as in case of LMWH as per medical text ACT is not required. From the Lab Tests Online we have noticed that ACT is a clotting test that is used primarily to monitor high doses of heparin anticoagulant therapy. Heparin is a blood clot inhibitor that is usually given either intravenously (IV) or by injection. In moderate doses it is used to help prevent and trea thromboemboli. At concentrations achieved with moderate doses, heparin is monitored using the partial thromboplastin time test or the heparin anti factor Xa test. Monitoring is a vital part of the anticoagulation therapy because a particular quantity of heparin will affect each person a little bit differently. If the amount of heparin administered is insufficient to inhibit the body/s clotting system, blood clots may form in blood vessels throughout the body. If there is too much heparin, the patient may experience excessive, even life-threatening, bleeding. In the instant case heparin was given continuously for 12 hours @.8 ml, but no ACT monitoring was done before CABG, which was mandatory and due to such negligence the patient had to suffer severe bleeding episode just after the CABG, which became fatal and ultimately the patient died due to such hemorrhage and multi organ became ineffective. Next we have noticed that it is a standard practice to conduct urine analysis and urine culture before a surgery, specially when there is evidence of UTI (Urinary Track Infection) and it is a planned/elective surgery and there was ample time in hand before the said planned surgery. A doctor should try to know the exact type of infection and cite of infection prior to surgery for the patients safety because UTI can leads Renal Dysfunction and renal shut down. The Expert opinion of Dr. Madhusudan Pal has also opined that urinary track infection may be one of causes of renal shut down. In this particular case the final report of death reveals that one of the causes of death of the patient was deceased condition of the Kidney and all the medical report of Sri. Anjan Chowdhury suggested clearly that there was a Renal Shut Down in the post operative period. Therefore adopting the doctrine of res ipsa loquitur we are of the opinion Gross Medical Negligence has been committed by the doctors-OPs in the instant case centered round the fundamental principals and ethics of standard accepted medical practice.
The OPs have failed to prove that standard medical treatment was provided and due care was taken towards the patient and they have also failed to show us any medical texts, literature in favour of their contentions. Though they claimed that proper treatment was provided and due care was taken, but they could not substantiate their contention by producing any cogent evidence in support of their claim. Thus it is proved that the OPs have miserably failed to discharge their duties and service to the patient as per standard protocol and medical guideline.
62. From the above-mentioned elaborate discussion now we may mention to the judgment passed by the Honble National Commission, reported in II (2006) CPJ 348 (NC), where Their Lordships have held that As per law laid down by the Honble Supreme Court in catena of judgments that the cases of medical negligence fall in a category of its own and they need to be proved with the help of expert opinion. specially in Jacob Mathews case it has been held that merely because the desired result could not be achieved the same is not negligence, if the doctor in treatment has followed standard medical norms. In the instant case the Complainants have proved successfully that standard medical norms and practice were not followed by the OPs and specially the Expert Dr. Madhusudan Pal has also opined that the OPs have committed medical negligence. Having regarding to the said judgments we are to say that in the instant case though both parties have adduced medical experts opinions, but in our view only the opinion gave by Dr. Madhusudan Pal is an authentic one because the other experts opinions are not based on medical documents, papers and moreover those opinions do not support the standard medical practice and guideline. As without medical experts opinion medical negligence case cannot be proved, the present case can be proved based on the experts opinion of Dr. Madhusudan Pal.
63. Regarding medical negligence we may mention to the judgment passed by the Honble Supreme Court, reported in 2006, CTJ, 662 in the case of Sikha Nayek vs. Dr. Manabesh Pramanik, where Their Lorships have held that 'a case of medical negligence has to be proved by proper medical expert's evidence; it cannot be based on mere statements of a patient and we may mention to a judgment passed by the Hon'ble National Commission, reported in 2004 CTJ, 175, (CP) (NCDRC), where their Lordships have held that 'as per settled law on medical negligence, it has to be alleged as to which action of the doctor was not as per accepted medical practice and what was done should not have been done or what was not done should have been done, this has to be supported by expert evidence or available medical literature on the subject. In a very recent judgment passed by the Hon'ble National Commission, in a case between Upasana Hospital and Another vs. S. Farook, reported in II (2007) CPJ 235 (NC), where the said Commission have held that without any expert evidence produced by the Complainant for alleged negligence, onus lies on the Complainant to prove the same.'
64. Having regard to the above-mentioned land mark judgments we are to say in the instant case Dr. Madhusudan Pal has adduced his expert opinion in favour of the Complainants and he was cross-examined by the OPs and replied all the questions put forward by the OPs in detail based on standard medical ethics, books, literatures. On the other hand the expert opinions given by the Experts in favour of the OPs, are not matching with the standard settled medical practice and norms. The other experts of the Complainants who gave their opinion cannot be accepted as they do not possess any specialization in the particular filed of the medical science from which the patient was suffering from i.e. the patient was suffering from cardiac problem, the said experts are not specialist and do not have any vast experience in the said field. Therefore after consideration of all the experts opinions in our view that the expert opinion of Dr. Madhusudan Pal can only be accepted in the eye of law and medical point of view. In the said opinion the expert has explained that proper CABG, HIV consent was not accepted from the patient, pre-operative measures were not taken, Administering of Heparin and ACT test was not done as per prescription dated 13.02.2007, documentation in the bed head ticket regarding re-explorations has not been done, re-explorations and bleeding episode were not disclosed to the patient party, doctors did not take proper step for controlling urinary track infection, no anesthetic consent was taken and no anesthetics report is there etc. Moreover as per the doctrine of res ipsa loquitur we are of the opinion the due to gross negligence on the parts of the OPs the patient died.
65. Compensation Assessment:
In the prayer portion the Complainants claimed a sum of Rs.50,00,000/- along with interest @12% p.a. from the date of receipt of the notice till the entire amount is paid due to death of the patient. The Complainants further prayed for Rs.30,00,000/- on account for suffering mental pain, agony and loss of company along with interest @12% p.a. from the date of receipt of notice till entire payment. The Complainants prayed for refund of the amount paid to the OP-1 for treatment of the patient along with 12% interest and in total they have prayed for a sum of Rs.84,65,000/- from the OPs as compensation. Apart from the said compensation they have prayed for direction upon the OP-1 to stop using false advertisement regarding Cleveland Clinic and QCI is a body set up under the Ministry of Commerce, Government of India.
66. It is an admitted fact that Sri. Anjan Chowdhury was famous name in the Bengali Film Industry and he was a renowned story/script/screen play writer cum director and producer of several Bengali movies. The OPs have never denied such facts in anywhere in their written version, on the contrary they admitted the same. Sri. Chowdhury died at the age 63 due to gross medical negligence of the OPs at the B.M. Birla Heart Research Centre. The Complainants have claimed compensation on two occasions, first due to death of the patient and second due to mental agony, harassment and mental pain. It is true one life cannot be quantified with the amount of compensation. At the time of assessment of compensation some facts are to be determined i.e. the income of the said person, whether he was the sole earner of his family, at what age he died, his professional status etc. In the instant case the complainants have stated in their complaint that the monthly income of Sri Anjan Chowdhury was of Rs.1,00,000/- and before his sudden death he was entrusted by Zee TV Bangla to make Mega Tele Serial and the producer agreed to pay him a sum of Rs.3,50,000/- per month for his story/screenplay and direction and in average the tenure of the said serial is calculated as 5 years, he could have easily earn Rs.3.50 x 60 months=Rs.two core and ten lakhs only. Apart from the patient had options to produce and direct new films to increase his income, but his sudden death shattered all the possibilities and pull down a black curtain on the future earning of the family of the deceased.
67. In respect of such prayer and contention we are of the view that though the Complainants claimed that the monthly income of the patient was of Rs.1,00,000/-, but in this respect they did not produce any document, of course this income has not been challenged by the OPs also, but the Complainants have failed to state what was his returnable income and what amount he used to pay as income tax and how much he had to incur towards his medical treatment. From the previous treatment papers it is evident that he was continuously under the treatment of the doctors and occassionally several tests were done as per the advice of the treating doctors. Admittedly Sri. Chowdhury was a patient of diabetes mellitus, hypertension and ischemic heart disease before CABG operation and in 1995 his PTCA was done. Regarding contract for a mega serial we are of the view that admittedly the said contract has been placed before us, but if we award the said sum, it will go beyond the jurisdiction of this Commission and moreover the Complainants did not claim the said amount in their prayer. But admittedly due to sudden demise of the Sri Chowdhury the said producer faced some trouble, but there is no pleading that due to death of the patient the producer had to stop the said mega serial. It is beyond question that due to the death of such personality Bengali Film Industry got severe damage and in social perspective also he had great contribution and his death is also tantamount to social loss. But at the time of assessment of amount of compensation we should be careful to the actual loss of the patients family.
From the aforementioned discussion it is clear that before CABG operation he was not a complete healthy person and free from disease, so whether his health will permit him to carry on such works for another 10 years smoothly or not we are not sure about such proposition of the Complainants. Therefore based on his monthly income, contract and future works compensation cannot be awarded. Considering his status while alive we consider it reasonable to fix his monthly income over expenditure at Rs.20,000/- per month and his further life span for a further period of 10 years from the date of his death it will be of Rs.24,00,000/- as compensation for his untimely demise due to gross negligence of the OPs. The Complainants claimed for refund of Rs.4,65,000/- from the OP-1 as paid by them, but we can not agree with such prayer because the Complainants are not entitled to get any amount towards refund as their patient got treatment either wrong or right from the OPs. Regarding other prayers our observation are as follows-
ORDERING PORTION i.
The OP-1 shall pay a sum of Rs.5,00,000/- to the consumer welfare fund due to display of misleading advertisement in their medical papers and displaying in several leading newspapers that the OP-1 got NABH by the QCI which is under the Ministry of Health, Government of India. The actual truth has been elaborately discussed in the body of the judgment. The amount should be credited to SCWF; Government of West Bengal for promotion and protection of rights of the Consumers guaranteed u/s 6 of the Consumer Protection Act, 1986. Not only that as the OP-1 used the logo of a renowned Clinic, which is situated in USA and the name of the said Clinic has been displayed in their medical documents, the advertisement is vitally required not only within India but also world wide so that all patients who are interested to be treated at the OP-1 may know first that it has no assistance with the Cleveland Clinic Foundation, Cleveland, Ohio, USA. The Department of Consumer Affairs and Fair business Practice, Government of West Bengal is requested to take appropriate steps for appraising consumer in general about the clear position, views and obligation with regard to logo as it is done by the OP-1 in this case.
ii.
The OP-1 shall pay a sum of Rs.2,00,000/- to the Complainants on the ground that it raised an arbitrary hospital bill on 17.02.2007 in spite of deposit of excess amount. Such bill caused mental agony and damaged of the Complainants. We also request The State Government about the feasibility of initiating an appropriate proceeding u/s 12 (1) (d) of Consumer Protection Act 1986 against the OP-1 in order to protect the interests of consumers in general against adoption of unfair trade practice as it is done by the OP-1.
iii.
The OP-1 shall pay a sum of Rs.1,00,000/- to the Complainants as no HIV consent was taken from the patient himself and in this way the OP-1 violated the NACCO guideline. As the Doctors are the employees of the OP-1, due to their negligence it is the vicarious liability of the OP-1 to pay compensation on their behalf.
iv.
The OPs shall pay either jointly or severally a sum of Rs.24,00,000/- to the Complainants towards compensation because due to gross negligence in providing proper treatment towards the patient by the OPs the patient died at the age of 63 years and due to such negligence the Complainant-1 has lost her husband and the other Complainants lost their father. As due to death of the patient the monthly income has been totally stopped and the family of the Complainant-1 faced with serious hardship.
v.
The OPs shall pay litigation cost of Rs.5,00,000/- to the Complainants either jointly or severally.
vi.
The OPs are further directed to pay the abovementioned amounts to the Complainants and Consumer Welfare Fund as per direction given above within a period of 45 days from the date of passing of this judgment, failing which the abovementioned total amounts shall carry penal interest @9% p.a. for the default period. Therefore, it is ordered that the complaint is allowed in part on contest with cost.
With the abovementioned observations the complaint petition is disposed of accordingly.
(Sri. Shankar Coari) (Smt. Silpi Majumder) MEMBER MEMBER