State Consumer Disputes Redressal Commission
Sri Bijoykrishna Pattanayak & Others vs Dr. Kalyan Kar & Another on 31 March, 2009
D R A F T State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/08/377 DATE OF FILING : 23.09.2008 DATE OF FINAL ORDER: 31.03.2009 APPELLANTS 1. Sri Bijoykrishna Pattanayak S/o Late Surendra Nath Pattanayak 2. Smt. Aloka Rani Pattanayak Wife of Bijoykrishna Pattanayak Both of Village Madhusudanbar P.O. Panskura R.S., P.S. Station Panskura Dist. Purba Midnapore. 3. Minor Sunanda Maity Daughter of Kanak Kanti Maity 4. Minor Sonali Maity Daughter of Kanak Kanti Maity Both minors are represented by the Complainant No. 1 Maternal grandfather and are residing at Contai School Bazar, P.O. and P.S. Station Contai Dist. Purba Midnapore. RESPONDENTS 1. Dr. Kalyan Kar, MS, FRCS (Edin) General GI and Laproscopic Surgeon CF 112, Salt Lake, Kolkata-64 and works for gain at Rubi General Hospital, Kosba Golpark, E.M.Bypass, Kolkata-700 107. 2. Rubi General Hospital represented by its Director (Administration/Management) Kasba Golpark, E.M.Bypass, Kolkata-700 107. BEFORE : HONBLE JUSTICE MR. A.CHAKRABARTI, PRESIDENT MEMBER : MR. A.K.RAY MEMBER : MRS. S.MAJUMDER FOR THE PETITIONER / APPELLANT : Mr. R.K.Roy, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. R.K.Mukherjee, Ld. Advocate(Res.1) Mr. A.Majumder, Ld. Advocate (Res.2) : O R D E R :
MR. A.K.RAY, HONBLE MEMBER A petition U/S 12 of the Consumer Protection Act was filed by the Appellants herein before the Ld. District Forum, South 24 Parganas alleging negligence and wrong treatment by the two Respondents, as a result of which Anjana Maity died. The Forum below by its order dt. 29.8.08 in C.C.No. 189 of 2006 dismissed the complaint without cost. Being aggrieved by this order the Appellants have preferred the instant Appeal.
2. The case of the complainants, in short, is that the patient Anjana Maity, aged about 38 years was admitted to Rubi General Hospital, the OP No. 2, on 7.5.06 with complaint of Chronic Calcific Pancreatitis. Necessary charges towards medical treatment and surgical operation were paid at the time of admission to the hospital by the patient party. Necessary clinical tests were also done at the instance of Dr. Kalyan Kar, the OP No. 1, and the test reports were normal for surgical operation. Total cost of operation was assessed at Rs. 80,000/- and after the operation the patient would remain under the care and treatment for 5 to 6 days in the nursing home. Operation was done by Dr. Kalyan Kar on 10.5.06 at Ruby General Hospital (OP No. 2). All sorts of pathological reports were done at pre-operation and post-operation stages.
67 bottles of blood were supplied.
The patient was shifted from O.T. to ITU after the operation was over. She was seen suffering from breathing problem due to some defect of oxygen cylinder. The staff of the hospital noticed it and started manual respiration by pumping the chest and attempted to revive the heart beat of the patient, who was shifted to ITU/ICU equipped with auto-respirator. But the patient was under coma at that stage. USG of whole abdomen of the patient was done at the instance of Dr. Kalyan Kar on 23.5.06 and the second operation was done by this doctor on 25.5.06.
Consent Form was signed by the maternal uncle of the patient. O.T. charges and cost of blood were paid by the patient party. Bleeding could not be stopped from the operated part of the patient who showed no improvement. She subsequently expired on 21.6.06 at Ruby General Hospital in course of medical treatment at the post-operative stage. Death Certificate revealed that the patient was suffering from cardiac respiratory failure due to shock and the shock was due to septicaemia for 22 days during the post-operative period. A total expenditure to the tune of Rs. 8,00,000/- including Rs. 3,60,000/- towards medicine and bed charges was incurred by the petitioners.
3. The allegation of the petitioners/Appellants were that the patient was operated on 10.5.06 at Ruby General Hospital, but the surgeon, Dr. Kalyan Kar (Respondent No. 1) failed and neglected to put a tube for draining out bile liquid after pancreatectomy. Due to non-availability of draining out the path of liquid bile, infection took place and as a result, the condition of the patient deteriorated and ultimately even after the second operation by the same surgeon the patient breathed her last. It was the allegation against the Respondent No. 1 that he did not follow the standard surgical medical practice in carrying out the operation and treatment.
He could refer the patient to a better equipped hospital for her urgent better treatment. But he did not do so. The second operation was required to rectify the defects which had occurred during the first operation. After the operation the patient suffered from septicaemia for 22 days.
Antibiotics were prescribed by the operating surgeon in a very casual manner. But they did not improve the condition of the patient. In view of gross negligence on the part of both the Respondents, the patient developed infection during the post-operative stage at the hospital. The treatment rendered to the patient was very much deficient. Hence, the case before the Forum below praying for compensation and cost.
4. The case was contested by filing written version by both the Ops/Respondents. The OP No. 1/Doctor stated that the case was not maintainable as the petitioner nos. 1 & 2 were the guardians/beneficiaries of the patient, Anjana Maity as they were merely the parents and the other two Ops were minor daughters, who were not represented by their father, the legal guardian. It was further stated by the Ops that the patient party was informed of the risks involved and the complications that might arise after the operation. Anjana Maity was suffering from chronic pancreatitis from 1999.
She also suffered from Tuberculosis in Pituitary Gland (in brain) for which she was operated in 2002 when the Pituitary Gland was removed. She was also diabetic and was on insulin since May, 2003. She had been admitted on different occasions at Christian Medical College, Vellore, and Kothari Hospital in Kolkata for acute exacerbation of chronic pancreatitis. The OP/Doctor, however, denied that the patient was suffering from breathing trouble due to some defects of oxygen cylinder. The patient was shifted to ITU on 10.5.06 for active ventilation after major surgery on the advice of the anaesthesist. In the ITU the patient developed surgical emphysema with Pneumothorax, a known complication of post-operative patient on ventilation.
A team of doctors treated her and she gradually recovered completely. She started taking liquid food and solid food after the first operation.
She was on steroid supplementation during the post-operative period as she did not have Pituitary gland.
Insulin was also administered.
On 23.5.06 after 13 days from the first operation the patient complained of abdominal discomfort. After USG of the whole abdomen it was seen that features of acute necrotizing pancreatitis and fluid collection inside the abdomen had developed. The fluid was sent to the laboratory for analysis which confirmed the diagnosis of Acute Necrotizing Pancreatitis. There was no bleeding from the operated part. The doctor further stated that he had followed the standard medical practice in carrying out the operation and treatment.
5. The OP No. 2/Respondent No. 2 (Ruby General Hospital) in its written version contended inter alia that there was no such instance of patients suffering from breathing problem due to defect in the oxygen cylinder in the hospital. The patient developed surgical emphysema with Pneumothorax which was duly treated and controlled. But the OP/Hospital categorically denied that the patient suffered from septicaemia at ITU/ICU of the hospital. Septicaemia is just one of the complications resulting from post-operative pancreatic surgery which has no connection with the hospital. There was no infection in respect of other patients who also underwent operation in the same ICU. The patient suffered from chronic pancreatitis in post-operative stage.
The infection which developed subsequently was the secondary infection at the Narcotic areas of the pancreas on its own. She was diabetic; she had her pituitary gland removed in 2002 and since then she was on steroids as well as on thyroid replacement therapy. Cause of infection was from within the patients own body. It happened after the operation. There was no deficiency in service on the part of the OP No. 2, rather they released the body of the patient without taking full payment on humanitarian ground.
6. Regarding maintainability of the case as brought out by the Respondent/Surgeon, it was observed by the Forum below that on the basis of available evidences on record the Complainant/Appellant nos. 1 & 2 incurred expenditure and made payments of a considerable amount towards the treatment of the patient and as such, they are also entitled to file the case before the Forum below in terms of the Consumer Protection Act, 1986.
7. With regard to the allegation of the Appellants that the OP No. 1 did not render proper medical treatment and care to the deceased patient, we have to look into the evidences led by the concerned parties. The specific allegation against the surgeon/Dr. Kar was that he failed and neglected to put the tube for draining out bile liquid after pancreatectomy and as a result, infection developed which caused deterioration of the condition of the patient and ultimately even after the second operation done by the same surgeon, the patient could not survive.
8. In his examination-in-chief the Complainant No. 1, Bijoykrishna Pattanayak, father of the deceased patient stated that his daughter was admitted to Ruby General Hospital as per advice of Dr. Kar on 7.5.06 for operation of chronic Pancreatitis.
Necessary clinical tests were done as per advice of Dr. Kar. All the test reports were normal before operation. He was advised by Dr. Kar that there would be no risk of life of the patient and the patient would be discharged from the hospital within 10/12 days. 12 bottles of blood were provided on the date of the operation. From time to time 67 bottles of blood were purchased by them and supplied to the hospital. While transferring the patient from O.T. to ITU she was seen suffering from breathing problems due to some defect in the oxygen gas cylinder. She was shifted to ITU with auto-respiration. But since then the patient was under coma stage.
USG of the whole abdomen of the patient was done as per advice of Dr. Kar on 23.5.06. But bleeding could not be stopped from the operated part of the patient and the patient did not improve. She ultimately died on 21.6.06 at Ruby General Hospital. Due to negligence and carelessness of the OP No. 1 the tube for draining out the bile liquid after pancreatectomy was not done by Dr. Kar. As a result, the patient developed infection and septicaemia. A second operation was conducted by the same doctor, but no explanation was given to the patient party as to why the second operation was needed.
The OP No. 1 had not followed the standard surgical medical practice in carrying out the operation and treatment.
The patient died due to negligence in conducting the surgical operation. The doctor did not inform the patient party about the risk of the operation and about the complications of the operation in broad terms. The patient was not referred to a better equipped hospital for urgent better treatment. The bleeding could not be stopped from the operated part of the body till death of the patient. The doctor did not observe the patient during the post-operative stage to check the abnormalities in pulse rate, blood pressure, respiration, urine tube, temperature monitor, fluid balance, etc. of the patient. The second operation was required for negligence of the doctor in conducting the first operation. During the pre-operative stage the patient had not suffered from infection, but in the post-operative stage the patient suffered serious infection for 22 days in the hospital. Prompt treatment in post-operative infection was not done by the surgical doctor and the hospital authority through their nurses and attending staff. The patient was continuously bleeding from the operated wounds and as such, excessive bottles of blood were required.
Anti-biotics were prescribed by the doctor in a very casual manner. The second operation was done on the patient on the self-same part on 25.5.06 by the OP No. 1/Doctor. It was the gross negligence on the part of the Ops. The first operation was carried out on 10.5.06 and the second operation was carried out after 15 days on 25.5.06. Services rendered by the OP/Doctor were not standard.
9. In his further cross-examination by the OP No. 2, the complainant stated amongst others that in 2002 there was an operation of Pituitary gland causing tuberculosis of his daughter in the Peerless Hospital and the said gland was removed.
10. In his evidence on affidavit Dr. Kalyan Kar, the OP No. 1, stated inter alia that the patient Anjana Maity had a long history of sufferings and treatment elsewhere prior to consulting him. She was suffering from chronic pancreatitis from 1999. It was first diagnosed by CMC, Vellore, where she had undergone treatment. She also suffered from tuberculosis of the pituitary gland (in brain) for which she was operated at the Peerless Hospital on 26.12.02 and that pituitary gland was removed. Since then she was on replacement therapy with steroids, thyroid hormone, estrogen and progesterone and other drugs. She was also diabetic and was on insulin since May, 2003. The patient was operated by him on 10.5.06 at the hospital of OP No. 2. The operation was successful and uneventful. She was shifted to ITU after the operation for active ventilation necessary after a major surgery on the advice of the anaesthesist. In the ITU the patient developed surgical emphysema with Pneumothorax which is a known complication of post-operative patients on ventilation. She was treated by a team of doctors, physicians and experts following standard medical care. After the first operation on 10.5.06 the patient made a steady recovery; she was taking food by mouth from 14.5.06 and from 16.5.06 she was taking solid food.
In the post-operative period the patient was on steroid supplementation because of the fact that she did not have Pituitary gland. Insulin for diabetes together with other anti-biotic medicines as per prescription of expert physicians was given to the patient. After 13 days, i.e. on 23.5.06, the patient complained of abdominal discomfort. USG of abdomen was done and it showed features of acute necrotizing pancreatitis and fluid collection inside the abdomen. Some amount of fluid was aspirated and sent to the laboratory for analysis which confirmed the diagnosis of acute necrotizing pancreatitis. So, the decision for surgical removal of the fluid collection was taken. The second operation done by him on 25.5.06 was successful, uneventful and without any complication whatsoever and the patient was doing well till 6.6.06.
Unfortunately, the first episode of bleeding with stool (Malaena) occurred on 6.6.06. Immediate and proper treatment was provided. On 16.6.06 bleeding occurred through the abdominal drains given at the operation site for the first time. He stated that he had performed his professional duties diligently with care and caution as per standard medical practice. The patient was regularly attended to by a team of 20 specialist doctors.
11. The OP No. 2, Ruby General Hospital, denied the allegation that the unfortunate deceased patient suffered from septicaemia at the ITU/ICU because septicaemia is just one of the complications resulting from post-operative pancreatic surgery which has no connection with the hospital. Septicaemia in the case of the deceased patient was nothing but another case of complication in chronic pancreatitis in the post-operative stage which ultimately led to necrotizing pancreatitis. Cause of infection, which ultimately led to septicaemia causing death of the patient, originated from within the patients own body or organs after the first surgery. There was no negligence in the treatment of the patient during her entire period of stay in the hospital from the date of admission on 7.5.06 to 21.6.06 (date of death).
12. On perusal of the aforesaid evidences on record we are of the opinion that the patient at the time of her admission to the hospital of Respondent No. 2 was diabetic and her pituitary gland had been operated and removed in 2002. She was on steroids and thyroid replacement therapy. The examination-in-chief and cross-examination of the Respondent No. 1/Doctor spoke in detail the physical condition of the patient. It was denied that the patient was in a coma stage after her first operation. She developed septicaemia subsequently and after suffering for 22 days she expired. The Appellant No. 1 could not prove that the patient (his daughter) was not examined and treated by a team of 20 doctors all efficient in their respective fields.
The Bed-head Ticket practically would go to prove the fact of such treatment by other doctors along with the Respondent No. 1. There was no question of referring the patient to a better-equipped hospital as the Respondent No. 2/Hospital is equipped with modern medical instruments. The evidences adduced on behalf of both the Respondents obviously showed that reasonable care, treatment and attention was given to the patient by the Respondents. The allegation of the complainants that the doctor did not treat the patient properly could not be substantiated by any expert opinion. In fact, no evidence from any expert doctor was forthcoming that the Respondent No. 1 did not treat the patient properly.
The complainants failed to prove their allegations to the hilt. There was no cogent or corroborative evidence to show and prove that the Respondent No. 2/Hospital failed to discharge its duties in taking proper care to the patient. No evidence was adduced to prove that the oxygen cylinder was not in order and for such reason the patient sustained breathing troubles. We are, therefore, not in a position to pinpoint the negligence on the part of the Respondents in treating the patient. It has been held by the Honble Apex Court in Jacob Mathew Vs. State of Punjab & another reported in 2005 CTJ 1085 (SC)(CP) that a simple lack of care and error of judgement or an accident is not a proof of negligence on the part of a medical professional; so long as a doctor follows a practice acceptable to the medical profession of that day he cannot be held liable for negligence merely because a better alternative course or method of treatment was available or simply because a more skilled doctor would not have followed or resorted to that practice or procedure which the accused followed.
13. In view of the facts and circumstances stated above it is difficult for us to interfere with the judgement of the Forum below which apparently does not suffer from any infirmity or irregularity. The Appeal, therefore, fails to succeed.
14. It is accordingly ordered that the Appeal be dismissed on contest without cost. The impugned judgment of the Forum below be affirmed.
LCR be returned to the Forum below with a copy of this judgement forthwith.
MEMBER MEMBER PRESIDENT