State Consumer Disputes Redressal Commission
Sri Ashim Banerjee vs Sri Tapan Baur on 25 May, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. SC/04/O/2000 1. Sri Ashim Banerjee vill Beltala,P.O. Dashpur, Dist.-Paschim Mednipur ...........Complainant(s) Versus 1. Sri Tapan Baur Prop. Daspur Arogyo Niketan Nursing Home,Dist.-Paschim Mednipur 2. Sri Madhusudan Pal Arogyo Niketan Nurshing Home,Daspur,Midnapur 3. The Superintendent S.D. Hospital , Ghatal ,Midnapore ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Complainant: Mr. Aloke Mukhopadhyay, Advocate For the Opp. Party: Smt. Debjani Ghosal, Advocate Ms. Debjani Ghosal, Advocate ORDER
25/05/15 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This is a case of medical negligence and deficiency in service. On 24/09/07 the complaint was allowed in part ex parte against OP Nos.1 and 2. Thereafter the Hon'ble National Commission in FA 89 of 2010 preferred by OP Nos.1 and 2 set aside the judgment passed by this Commission and the case was sent back to this Commission for passing a fresh order after giving opportunity to the Petitioner/Appellant to file the reply to the complaint and then recording evidence of the parties.
The case of the Complainant, in short, is that his daughter aged about 15 years suffered from pain in abdomen and on 29/08/99 in the morning she was taken to the OP No.1 Nursing Home for treatment. OP No.1 verbally told that the condition of the patient was serious as the appendix had burst out and the patient will die if immediate treatment was not done. The OP No.1 without taking any consent form from the Complainant and proper check up of the patient advised OP No.2 Dr. Madhusudan Pal at about 11 a.m. for operation of the patient, but nothing was disclosed to the Complainant regarding the actual disease of the patient and OP Nos.1 and 2 took signatures on typed papers from the Complainant for doing the operation. At about 8.15 p.m. the patient was taken to the O.T. No permission was given to the Complainant to see his daughter. Thereafter at about 11 p.m. the patient was taken to Ghatal Hospital by Ambulance of Daspur arranged by OP Nos.1 and 2. At the said Hospital the Complainant was told by the OP Nos.1 and 2 and the attending Nurses that the condition of the patient was very bad. Thereafter the Complainant came to learn that his daughter died. It has been alleged that OP Nos.1 and 2 did not treat the patient properly as per standard medical practice and procedure. Under the circumstances, the complaint was filed claiming compensation.
The OP Nos.1 and 2 contested the case by filing W.V. denying all the material allegations raised in the complaint. It is the case of the OPs that the Complainant was repeatedly informed of the grave condition of the patient and advice was also made for shifting the patient to State Hospital, but the Complainant expressed his inability to shift the patient elsewhere. However, the OPs looking at the serious condition of the patient and the humble request of the Complainant agreed to admit the patient in the Nursing Home on humanitarian consideration. The patient was admitted at 7.15 p.m. only after members of the surgical team from S.D. Hospital agreed to participate in the operation on humanitarian consideration. The Medical Officer of OP No.1 Nursing Home Dr. M. Maity examined the patient on 29/08/99 at 7 a.m. and found the patient's condition serious and then and there referred the patient to Ghatal S.D. Hospital or any State Hospital immediately as no surgical team was available there. The OP No.1 is not a doctor and does not examine the patient medically. The Complainant himself left his daughter over the verandah of the Nursing Home in spite of repeated alarming given by the OPs about the grave condition of the patient. The patient was taken to operation table at about 8 p.m. and at about 9 p.m. the operation was started and completed around 9.30 p.m. Since the patient regaining consciousness from the effect of anesthesia was not good, she was shifted to Ghatal S.D. Hospital by Ambulance with all protective measures including ventilation support accompanied by surgical team (all three doctors). The patient was admitted in Ghatal S.D. Hospital at 11.40 p.m. on 29/08/99 after medically examining the patient in the emergency of the Hospital. The patient seemed to have expired at about 1.50 a.m. on 30/08/99 at Ghatal S.D. Hospital. The post mortem examination was arranged by the concerned Authority and no surgical defect was found. The Complainant disclosed before the Investigating Officer in the Criminal Case that his daughter had been suffering from this problem for about four months prior to the date of operation, that is, 29/08/99 and no medical treatment of the patient was arranged by the Complainant during this long period.
The Learned Counsel for the Complainant has submitted that the patient remained uncared for in the verahdah of the Nursing Home for about 12 hours and she was admitted at 7.15 p.m. although she was brought to the Nursing Home at 7 a.m. It is contended that no pre-operative test was done and the Complainant was not informed of the serious condition of the patient. It is submitted that the blood group was also not ascertained. It is submitted that at about 9.30 p.m. the patient was taken out of the OP and no Gynecologist or Nurse was present there. It is submitted that the patient was unconsciousness and was not shown to the Complainant. It is submitted that the doctors of the OP No.1 Nursing Home and OP No.2 took the patient to the OP No.3 Ghatal S.D. Hospital at about 11.40 p.m. and the patient died in that night at 1.05 a.m. and the dead body was sent for post mortem at about 4 a.m. It is submitted that the OP No.2 was not a Gynecologist and in spite of that he conducted the operation without doing the necessary tests. It is submitted that there was serious deficiency and negligence on the part of the OPs, as a result of which the patient had expired. It is submitted that the OP No.3 Ghatal S.D. Hospital did not issue the death certificate and no definite opinion was given in the P.M. report. The Learned Counsel for the Complainant has referred to the decisions reported in III (1995) CPJ 1 (SC) [Indian Medical Association vs. V. P. Shantha & Ors.]; III (2014) CPJ 251 (Kar.) [Lakshmamma & Ors. vs. Dr. Paul & Ors.]; 2012 (3) CPR 142 (NC) [Arvind Pandey & Anr. vs. Dr. (Mrs.) Sulekha Saran & Ors.]; III (2014) CPJ 290 (NC) [Master Abhishek Ahluwalia & Ors. vs. Dr. Sanjay Saluja & Ors.]; III (2014) CPJ 598 (NC) [G. Rajendra & Ors. vs. City Hospital & Orts.].
The Learned Counsel for the OP Nos.1 and 2 has submitted that at 7 a.m. Dr. Maity of the OP No.1 Nursing Home examined the patient and in the note sheet advised for the shifting of the patient to any Government Hospital for proper treatment having regard to the critical condition of the patient. It is contended that in spite of informing the Complainant repeatedly of the serious condition of the patient, the Complainant did not take steps for the shifting the patient to the Government Hospital and requested the OP Nursing Home to do the needful. It is submitted that before admission at about 8.15 p.m. necessary medicines were prescribed and administered as per the note sheet and at last on being requested by the Complainant the OP No.2 requested the doctors of S.D. Hospital, Ghatal to come to the Nursing Home in order to form a surgical team for conducting the emergency operation. It is contended that the surgical team was not available in the Nursing Home and, as such, the Complainant was repeatedly advised to shift the patient to any Government Hospital, but to no effect. It is submitted that the doctors of the Nursing Home treated the patient and performed the operation as per the standard medical practice and procedure, but after operation the patient did not regain consciousness and at that time she was shifted to Ghatal S.D. Hospital arranged by the Nursing Home with ventilation facilities and accompanied by the Doctors and Nurses of the Nursing Home. It is submitted that at the Ghatal S.D. Hospital (OP No.3) at about 1 a.m. the patient expired. It is contended that there was no deficiency in service or negligence on the part of the OPs. The Learned Counsel for the OPs has referred to the decision of the Hon'ble Apex Court in the case of V. Kishan Rao vs. Nikhil Super Specialty Hospital reported in (2010) 3 WBLR SC 470.
We have heard the submission made by both sides and perused the evidence on record. Admittedly, the patient was brought to the OP No.1 Nursing Home at 7 a.m. on 29/08/99 and Dr. M. Maity of OP No.1 examined the patient and prescribed some medicines. It was also noted that the patient was suffering from - "? Perforative peritonitis due to - ? appendicular perforation". It was also advised to attend emergency, Ghatal S. D. Hospital/any State Hospital immediately. It is the consistent plea of the OP Nos.1 and 2 that the father of the patient did not make any arrangement for shifting the patient. In paragraph 3 of the W.V. it was stated that the father of the patient expressed his inability to shift the patient elsewhere. At the same time it also transpires from the prescription issued by Dr. M. Maity at 7 a.m. onwards that at different times medicines were prescribed by OP No.2 Dr. M. S. Pal. It appears from page 28 of the paper book that at 11 a.m. on 29/08/99 Dr. Pal prescribed medicines and noted "? Perforative peritonitis - ? appendicular perforation with septicemia". Dr. Pal also advised that the patient be referred to the emergency of any State Hospital immediately. It was also noted that the father of the patient was unable to take her daughter to any government Hospital and insisted on treating his daughter at the Nursing Home. At 7.15 p.m. the consent form was obtained for conducting appendectomy. At 7 p.m. it was noted "high risk consent form for operation". From page 35 of the paper book dated 29/08/99 it appears that there was operation - laparotomy/G.A. and the surgical team consisted of surgeon - Dr. M.S. Pal who is OP No.2 herein and Dr. B. Khanna and Dr. B. Banerjee.
It appears from paragraph 5 of W.V. that operation started at about 9 p.m. and completed around 9.30 p.m. and on being requested by the father of the patient, the OP No.1 requested Dr. B. Banerjee, Anesthesist and Dr. B. Khanna, Surgical Assistant who arrived at the Hospital from Ghatal around 7 p.m. to form the surgical team. From page 37 of the paper book it appears that patient was examined at 9.35 p.m. and it was mentioned that the patient was responding to painful stimuli and at 10 p.m. it was noted that consciousness deteriorated and after consulting the Anesthetist the patient was reintubated for ventilator support. At 10.15 p.m. it was noted that patient's condition deteriorated showing no signs of improvement and surgical team decided to transfer the patient to S.D. Hospital, Ghatal with ventilator support and the father of the patient gave consent to such transfer. At 11.15 p.m. it was noted that ambulance was arranged and the patient was taken to Ghatal with ventilator support with all members of surgical team and the father of the patient. At paragraph 6 of the W.V. it has been stated that the patient was admitted at Ghatal S.D. Hospital at 11.40 p.m. on 29/08/99 after medically examining the patient in the emergency of the S.D. Hospital. At page 40 of the paper book there is the ticket for admission in the Government Hospital, Ghatal wherein it was noted at the time of admission that patient was unconscious from the time of appendectomy. On 30/08/99 at 1.05 a.m. it was noted in the treatment sheet that pulse was not palpable, heart sounds were not audible, pupil was dilated and not reacting to light and it was further recorded that the patient seemed to have expired. At 1.50 a.m. it was noted that pulse was not palpable, heart sound was not audible, pupils dilated or fixed and the patient seemed to have expired. On the same day, that is, 30/08/99 at 12.50 a.m. it was noted that as there was surgical problem and it was fully anesthetic problem the case was referred to anesthetist on call and physician on call for management. It was further recorded that the operation was done at Daspur Arogyaniketan under G.A., but the patient did not regain consciousness, as stated by Dr. M. S. Pal. The P.M. report shows that opinion was kept pending till the arrival of the chemical examiner's report.
From the above facts and circumstances it is clear that the treatment was started at OP No.1 Nursing Home at 7 a.m. on 29/08/99 and the OP No.2 was present from the very beginning. The doctors of OP No.1 recorded that it was a critical case and advised the patient party to shift the patient to S. D. Hospital, Ghatal. The father of the patient expressed his inability to shift the patient. It is the contention of the OPs that the surgical team was not available and, as such, the operation could not be done on emergency basis. We are of the considered view that when the patient was received by the Nursing Home and the treatment was started at 7 a.m., the OP No.1 ought to have arranged for immediate surgery since it was a case of suspected appendicular perforation. The Learned Counsel for the Complainant in this regard has submitted that the patient suffered from gynaecological problems and the OP No.2 being a general surgeon ought not to have conducted the operation. We are unable to accept such contention of the Learned Counsel for the Complainant, in as much as, from the papers on record it is evident that it was not a case of gynaecological problem and the OP No.2 was competent to perform the operation. The alleged non-availability of the surgical team in the Nursing Home is not at all acceptable. The Nursing Home ought to have arranged for immediate surgery, under the facts and circumstances, of the instant case.
The Learned Counsel for the Complainant has submitted that no pre-operative test was done and even the blood group was also not determined. In this connection the Learned Counsel for the OPs has referred to the medical literature "Clinical Methods in Surgery (including differential diagnosis) by K. Das, 12th edition, page-1080. It relates to clinical diagnosis - signs in respect of vermiform appendix. It has been stated therein that diagnosis of appendicitis rests more on thorough clinical examination of the abdomen than on any aspect of the history or laboratory investigation. The OP No.2 in his reply as against question nos.7 and 8 has stated that he clinically examined the patient at about 11 a.m., advised and referred the patient to other Hospital. His diagnosis was perforative peritonitis, appendicular perforation with septicaemia and he diagnosed it from his clinical tests/examinations and from this clinical experience. Therefore, we are unable to accept the contention of the Learned Counsel for the Complainant that there was no pre-operative test. From the medical literature it is clear that diagnosis in such a case rests more on clinical examination than on other laboratory test and examination.
From the materials on record it is evident that in spite of making treatment from 7 a.m. onwards the OP Nos.1 and 2 failed to form a surgical team and when the patient was on the verge of death they requested Dr. Banerjee and Dr. Khanna who came from Ghatal and thereafter the operation was performed. But the condition of the patient by that time was so critical that after operation she could not regain her consciousness. When things came to such a pass the doctors of the OP Nursing Home arranged ambulance with ventilator support and accompanied the patient to the S. D. Hospital, Ghatal, but after admission there as per the note sheet of the Hospital the patient had already expired. The deficiency in service on the part of the OP Nos.1 and 2 lies in the fact that in spite of starting the treatment from 7 a.m. on wards and knowing the fact very well that it was a case of emergency surgery, they utterly failed to form the surgical team although OP No.2 was all along present. We have already mentioned that the contention of the non-availability of surgical team is no excuse and it amounts to negligence on the part of the OP Nos.1 and 2. Moreover when the father of the patient expressed his inability to arrange for vehicle, the doctors of the OP Nursing Home ought to have arranged the ambulance at the very beginning which could have been a bonafide attempt to save the life of the patient. Towards the end the doctors of the OP Nursing Home arranged the ambulance with ventilator support and the patient was taken to S. D. Hospital, Ghatal, but that ended in fiasco. We, therefore, find that OP Nos.1 and 2 are responsible for the deficiency in service and the negligence in their failure to arrange for surgery at the right point of time.
As regards OP No.3, we are of the view that when the patient was brought to OP No.3 she already expired. Under such circumstances, there was no deficiency in service on the part of the OP No.3. The case against OP No.3 fails and stands dismissed.
The complaint is allowed in part. The OP No.1 is directed to pay compensation of Rs.2 lakh and litigation cost of Rs.20,000/- to the Complainant.
OP No.2 is directed to pay compensation of Rs.1 lakh and litigation cost of Rs.20,000/- to the Complainant. Such payments be made by OP Nos.1 and 2 to the Complainant within 45 days from the date of passing this order failing which interest @ 9% p.a. shall accrue from the date of default till realisation. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER