National Consumer Disputes Redressal
Susmita Roychowdhury & Anr. vs B.M. Birla Heart Research Centre & Ors. on 25 April, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 62 OF 2009 (Against the Order dated 13/01/2009 in Complaint No. 105/2000 of the State Commission West Bengal) 1. SUSMITA ROYCHOWDHURY & ANR. W/o Dr. Amulya Madhab Roy Chowdhury, R/o at Block-6, Flat No. 30, Behala Govt. Flat, Banamali Naskar Road, Kolkata-700 060, P.S. Behala 24-Parganas(South) ...........Appellant(s) Versus 1. B.M. BIRLA HEART RESEARCH CENTRE & ORS. 1/1, National Library Avenue, P.S. Ekbalpore Kolkata - 700 027 2. B.M.BIRLA HEART RESEARCH CENTRE 1/1, NATIONAL LIBRARY AVENUE P.S. EKBALPORE KOLKATA (W.B.) 3. DR. SRIRUP CHATERJEE DOBAR COURT FLAT NO. 206, 22 DOBAR ROAD, KOLKATA-700019 WEST BENGAL 4. DR. TAPAN KUMAR GHOSH B.M. BIRLA HEART RESERCH CENTRE 1/1,NATIONAL LIBRARY AVENUE KOLKATA-700 027(W.B.) 5. DR. SRIRUP CHATTERJEE Woodland Nursing Home, 8B, Alipore Road Kolkata - 700 027 6. DR. TAPAN KUMAR GHOSH B.M. Birla Heart Research Centre, 1/1, National Library Avenue Kolkata - 700 027 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : For the Appellants: Mr. Sanjay K. Ghosh and Ms. Rupali S. Ghosh, Advocates For the Respondent : For Respondent Nos.: Mrs. Maninder Acharya, Senior Advocate 1 & 3 Mr. Ashutosh Dikshit, Advocate For Respondent No.2 : Mr. S. Chakraborty and Ms. Surbhi Anand, Advocates Dated : 25 Apr 2017 ORDER This First Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), has been preferred by the wife and son of Late Dr. Amiya Madhab Roy Chowdhury,(for short "the Patient"), questioning the correctness and legality of the order dated 13.01.2009, passed by the West Bengal State Consumer Disputes Redressal Commission at Kolkata (for short "the State Commission"). By the impugned order, their complaint, being SC Case No. 105/0/2000, alleging medical negligence on the part of the Respondents in treating the Patient, has been dismissed.
2. Succinctly put, the facts giving rise to the present Appeal, as pleaded in the Complaint, are as under:-
2.1 The Patient, aged about 70 years, after retirement from service in the Central Government, was practicing homeopathy. On 20.05.1998, feeling uneasiness in the chest, he got some pathological tests done. On the very next day, he was admitted at S.S.K.M. Hospital. He was diagnosed as suffering from unstable angina. However, the Appellants got him discharged from the said Hospital on 09.06.1998 for better treatment. On the following day they consulted Respondent No. 2, Dr. Srirup Chatterjee (for short "the Treating Doctor"), a Cardio Thoracic Surgeon, at B.M. Birla Heart Research Centre, Opposite Party No.1 (for short "the Hospital"). On examination, the Treating Doctor advised Coronary Angiography (CAG). On 11.06.1998, the Patient again visited the Hospital and was advised admission for necessary investigations on 15.06.1998. On admission, serum analysis was done under Respondent No.3, Dr. T.K Ghosh, which showed that the Patient was suffering from Hepatitis C virus Positive (HCV+) and his glucose (fasting) level was 98 mg./dl. Cardiac catheterization and Coronary Angiography, conducted on 16.06.1998 by Dr. J.C. Sharma, Consultant Cardiologist, showed that the Patient had severe triple vessel disease and Grade III Mitral Regurgitation. He was advised Coronary Artery Bypass Graft Surgery (CABG) with mitral valve replacement. Thereafter, two samples of serum were sent by the Hospital to Sanjibon Diagnostic & Medical Research (Pvt.) Ltd. and Peerless Hospital & B.K. Roy Research Centre for second opinion. Reports received on 18.06.1998 and 19.06.1998, suggested Hepatitis C virus negative (HCV-) meaning thereby that he was not suffering from HCV+ as diagnosed by Respondent No. 3 in the Respondent Hospital. Accordingly, CABG, was planned for 25.06.1998. The Appellants were asked to arrange for blood, which they did on 24.06.1998. But suddenly the operation was postponed for an indefinite period, without disclosing any reason therefor. Ultimately, the procedure was performed by the Treating Doctor on 30.06.1998. The Patient did not regain consciousness after the surgery and remained on ventilator support till he was declared dead on 11.07.1998. As per death certificate, the cause of death was Myocardial failure, multi-organ dysfunction and post CABG status.
3. The Complaint came to be filed in this factual backdrop, alleging medical negligence on the part of the Respondents on the following counts: (i) though all the requisite investigations for CABG were completed by 19.06.1998, the operation was delayed till 30.06.1998, despite the deteriorating health condition of the Patient; (ii) the myocardial damage occurred during the hospitalization period because of undue delay in surgical intervention; (iii) as per Bed Head Tickets, there was no monitoring and no medicine was prescribed/given to the Patient from 16.06.1998 to 23.06.1998 and again from 26.06.1998 to 28.06.1998; (iv) no post-operative care was taken on 01.07.1998, 03.07.1998, 07.07.1998, 10.07.1998 and 11.07.1998; (iv) although as per the entry in the Master Register maintained by the Hospital, the Patient was declared 'Dead' on 30.06.1998 but was kept on emergency life support system till 11.07.1998 for financial gains and (vi) consent was not taken from the Appellants before performing the CABG procedure. The Complainants prayed for a total compensation of ₹19,99,000/- from the Respondents for being deficient in their services to the Patient, resulting in his death.
4. The Complaint was contested by all the Respondents denying all the allegations of medical negligence. In their joint Written Version, the Hospital and Respondent No. 3 raised preliminary objection to the maintainability of the Complaint on the ground that: (i) CABG having been performed on 30.06.1998, the Complaint filed on 05.07.2000 was barred by limitation and (ii) the State Commission did not have the jurisdiction to adjudicate upon the issue, as the same involved complicated questions of fact and law, necessitating recording of extensive evidence and expert's opinion. On merits, it was pleaded that the Treating Doctor was a Consultant Doctor associated with the Hospital and hence, the Hospital had no scope whatsoever to interfere in the matter of decision and management of treatment that was given by him; presence of Hepatitis C virus had no relevance so far as the surgery was concerned; the treatment record did not show that the CABG was scheduled for 25.06.1998, however, decision with regard to fixing the date for CABG depended on the clinical judgment of the Treating Doctor/ surgeon and patient's health condition; patient had not suffered severe myocardial damage few days prior to the date of surgery and no such statement was made by the Treating Doctor; putting the patient on ventilatory support after CABG is a normal practice; question of the patient having HCV infection has no relevance with the procedure of CABG and as such the question of not acting on the negative report is insignificant for the purpose of performing surgery (CABG) or fixing the date therefor and the patient was suffering from unstable angina from the day of admission and prompt and proper care was taken.
5. In his Written Version, the Treating Doctor explained that CABG procedure, being a highly specialized surgery cannot be performed as and when a patient desires, and in the interest of the patient, it is prudent to perform such procedure by taking into consideration the health condition of the patient; in the instant case, the date of surgery was postponed in the best interest of the patient; the decision to operate on a particular date was taken considering all aspects of patient's health condition but in the interregnum the patient was subjected to daily check-up, examination, nursing and routine medication for his betterment; CABG can take 2 to 5 hours and sometimes even longer and he was waiting for the right moment, which in his judgment would be the most appropriate time for carrying out the procedure; however, the condition of the Patient started deteriorating and despite best efforts, his condition could not be stabilized, on 29.06.1998 he took decision to carry out the procedure on 30.06.1998; although, exact time of myocardial damage cannot be pin-pointed, if such damage is seen during the performance of the surgery but in the present case, evidence of Myocardial damage on echocardiography was noticed on 10.06.1998 i.e. much prior to performing Angiography; after CABG almost all patients are kept on artificial respiration. It was pleaded that there had been neither any negligence in conducting the procedure nor unnecessary delay on his part in performing CABG, as alleged.
6. On a detailed analysis of the documentary evidence adduced by the parties, on affidavits and by serving interrogatories, the State Commission has come to the conclusion that: there was no delay on the part of the Treating Doctor in performing the operation on 30.06.1998, as such delay was attributable to the condition of the patient; intermittent absence of notings relating to the monitoring/treatment of the Patient on some of the days did not tantamount to any negligence as the Respondents had contended on oath that the treatment was continued; consent was taken before performing the surgery on 30.06.1998, in addition to the consent having been taken at the time of admission; if the death had taken place on the date of CABG procedure itself, i.e. 30.06.1998, as alleged by the Appellants, the endorsement to that effect would have been made in the remarks column and not in the column meant for signatures. Resultantly, as noted above, the State Commission has dismissed the Complaint, holding that there was no medical negligence on part of the Respondents in treating the Patient.
7. Hence, the present Appeal.
8. We had heard Mr. Sanjoy Kumar Ghosh, Learned Counsel appearing for the Appellants and Ms. Maninder Acharya, Learned Senior Counsel on behalf of the Respondents, at considerable length. They took us through the voluminous medical records, evidence adduced by both the parties, including the answers to the interrogatories and medical literature. At one of the hearings, the Treating Doctor, Dr. Srirup Chatterjee, appeared in person and explained his stand on the entire incident. Candidly admitting that the treatment record of the case, particularly the prescriptions, could, probably be better maintained, he maintained that CABG procedure was deferred in order to stabilize the Patient, it was his conscious decision and he still stands by it. The parties have also filed written submissions, which have been taken into consideration.
9. In support of his submission that there was absolute negligence and callous attitude on the part of the Respondents in treating the Patient, Mr. Ghosh has highlighted the following deficiencies on the part of the Hospital and the Treating Doctor: although the reports of Sanjibon Diagnostic and Peerless Hospital showed HCV negative, yet in order to take no risk of infection and as a measure of abundant caution, the Hospital proceeded with the case of the Patient on the premise of positivity of HCV and hence the wrong pathological analysis by Respondent No. 3, working in the Hospital, was a clear case of deficiency of service and medical negligence; from the operation notes, it is clear that only CABG was done without the Mitral Valve replacement, which was recommended; no explanation was forthcoming as to why Mitral Valve replacement was not done; the Patient was admitted in the Hospital on 15.06.1998 whereas Coronary Angiography was conducted on 16.06.1998 with recommendation for Coronary Artery Bypass Graft Surgery with Mitral Valve Replacement but the procedure was conducted only on 30.06.1998, without Mitral Valve Replacement. There was clear delay in conducting the procedure. The only explanation for the delay was that it was a conscious decision by the Treating Doctor. However, the said stand is incorrect in as much as from 16.06.1998 upto 23.06.1998 there was neither any prescription of any doctor, nor treatment record and hence the contention that the delay in surgery was a conscious decision is not based on record and was an afterthought; again from 23.06.1998 to 26.06.1998 and 28.06.1998 there was no prescription, no advice by any doctor, no recording by any doctor with regard to the treatment of the Patient for which lapse no explanation has been furnished; the condition of the heart of the Patient had deteriorated rapidly during the long delay in conducting the procedure and rectifying the defect as diagnosed in CAG done on 16.06.1998, detection of Cardiac enzymes on 26.06.1998; condition of the Patient further deteriorated, as on 27.06.1998, Cardiac enzyme had increased, sub-endocardial infraction had been detected and it was because of the delay in conducting the surgery by the Treating Doctor on time and because of the Patient being left unattended for a number of days, which led to weakening of the heart and its muscles, followed by development of several complications; though on 29.06.1998 it was recorded that there was high risk of surgery, still the procedure was performed on 30.06.1998; when it was the stand of the Respondents that the CABG procedure was elective and not emergent; it is not explained as to what made the Treating Doctor to take the so called conscious decision to conduct the surgery on 30.06.1998 and not on 25.06.1998, when admittedly on 30.06.1998 the risk of surgery had gone high; from the master register of operation theatre it is apparent that on 30.06.1998 the patient was recorded to have died on the day of operation i.e. 30.06.1998, but from the doctor's treatment order sheet it can be noticed that from 29.06.1998 upto 03.07.1998 there was no recording of any treatment or progress of vital parameters of the Patient; the subsequent recording of 01.07.1998 after 03.07.1998 is nothing but a cover-up measure, which further strengthens the case of the Appellants that in fact the Patient had died on 30.06.1998 and the subsequent recordings in the doctor's treatment order sheets were nothing but an eye-wash, manipulated to cover up the negligence; although the Appeal was filed in the year 2009 and the Respondents had been appearing in the matter since the year 2009, yet the Hospital filed additional documents only in the year 2014, which shows that these documents are only an afterthought; although the Respondents have produced the nurses chart, daily observation chart, daily intravenous infusion therapy record, daily blood analysis (serum analysis) record, daily nursing care schedule, nursing care plan, nursing progress note all pertaining to the year 1998 but they have failed to produce the original master register of operation theatre wherein the Patient was declared dead on 30.06.1998, which fact necessitates drawal of adverse inference against the Respondents that the Patient had actually died on 30.06.1998 but was kept on artificial support for unfair monetary gains and to conceal the negligence of the Treating Doctor in the performance of CABG procedure.
10. Per contra, Learned Senior Counsel, appearing for the Respondents, referring to the evidence of the Treating Doctor (Respondent No. 2) and the case history forms, argued that stabilization of a Patient is a normal procedure of preparing him for the surgery. Being an invasive procedure, it is usually carried out at a stage when the Patient is most stabilized. In the instant case, the Treating Doctor was waiting for the appropriate moment, which in his judgment would be most appropriate for carrying out the surgery viz. when the patient was most stabilized. However, the condition of the Patient started deteriorating and when despite best efforts, he could not be stabilized, he was constrained to take a decision on 29.06.1998 to carry out the procedure after consulting the Patient's relations. It was in these circumstances that the surgery of the Patient was carried out on 30.06.1998, It was pleaded that it may or may not have been an error of judgment on his part, which even the best of professionals, like the Treating Doctor, are susceptible to commit, however, this cannot and does not amount to medical negligence or deficiency of service. It was submitted that the onus was on the complainant to disprove the opinion of the Treating Doctor, by adducing expert evidence to prove that a medical surgeon of reasonable skill and prudence would not have acted in the manner in which the respondent/surgeon did in the instant case, but no expert evidence in this behalf was adduced by the Appellants. The allegation that no consent was taken before conducting the CABG procedure was sought to be repelled on the basis of the answer to Question No. 4 by the Treating Doctor to the interrogatories and Appellants stand thereon to the effect that "they have general consent for a planned/as usual cardiac surgery at the time of admission (following all medical, surgical and investigation parameters) which should have been performed at the earliest, considering the deteriorating cardiac condition of the Patient." While refuting the allegation that the Patient had in fact died in the operation theatre "OT" on 30.06.1998, it was strenuously urged that the Hospital had placed on record several documents including daily observation chart, daily intravenous infusion therapy record, daily nursing care schedule etc. which show that the Patient was treated and taken care of on hour to hour basis by a team of doctors at the Hospital, including cardiologists, junior doctors and nursing staff. It was submitted that the mere absence of reporting on a given date in a particular record, when treatment is recorded elsewhere, ought not to result in an adverse inference being drawn against the Respondents. As regards the absence of nothings between 16.06.1998 to 23.06.1998, it was contended that this omission, if any, cannot be presumed to be lack of care or act of negligence because a bare perusal of the case history form would show that there was no marked change in the condition of the Patient between these dates when he was being stabilized.
11. The issue as to what constitutes medical negligence, based on the touchstone of BolamVs. Friern Hospital Management Committee,(1957) I WLR 582, is well settled through a catena of decisions of the Hon'ble Supreme Court and we do not propose to burden the order by making copious references to all these decisions. It would suffice to note the gist of the principles, on the point, summed up by a three Judge Bench of the Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab &Anr. (2005) 6 SCC 1. These are: (i) negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do; (ii) a simple lack of care, an error of judgment or an accident, is not 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 also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed; and (iii) a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.
12. In Hunter Vs. Hanley (1) (1955) SLT 213, Lord Clyde observed that "in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man is not clearly negligent merely because his conclusion differs from that of other professional men, nor because he had displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care." Hence, a doctor cannot be held to be negligent merely because in a matter of opinion, he made an error of judgment. So long a doctor follows a practice, acceptable to the medical profession by that day, he cannot be held liable for negligence, merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure, which the accused doctor had followed. Succinctly put, the test to establish negligence on the part of the doctor is whether the course he had adopted was the one which no professional person of ordinary skill would have adopted if he/she had been acting with ordinary care.
13. Having examined the allegations of medical negligence, summarized above, on the touchstone of the above-noted broad principles, we are of the opinion that the Appellants have failed to establish that Respondents No. 2, the Treating Doctor did not act with reasonable competence or prudence or skill, he was expected to act as medical practitioner in the performance of CABG procedure. Similarly, they have not brought on record sufficient material to hold that Respondent No. 3, involved in the initial diagnosis, on the question whether the Patient was infected with Hepatitis C Virus (HCV) or not, was negligent in his diagnosis. On a conjoint reading of the entire medical record, including the daily observation chart; record of intensive treatment unit, nursing care schedule; nursing progress notes, etc. we are unable to persuade ourselves to agree with Learned Counsel for the Appellants that there was lack of care of the Patient by the Treating Doctor or by Respondent No. 3 or that there was manipulation in the records relating to the Patient. In so far as the allegation that delay in the CABG procedure was the cause of acute deterioration in the condition of the Patient, and for that reason, perhaps, he could not withstand the said procedure, we are unable to read any misadventure on the part of the Treating Doctor, who unequivocally stood his ground that having regard to the general condition of the Patient, it was his conscious decision to postpone the procedure till the Patient was stabilized but when he noticed that his condition was fast deteriorating, he decided to perform the procedure immediately. In his evidence, he has not minced any words while stating that "I say that the procedure adopted by me in the case of Dr. Amiya Madhab Roy Chowdhury is the procedure, I have adopted and still adopt in numerous CABG that I do and the same is recognized procedure of Coronary Artery Bypass Grafting. The same procedure is followed all over the world and it is well accepted and well known." We have neither any material on record nor the expertise to substitute Treating Doctor's Judgment of the moment with our opinion. Therefore, we have no hesitation in coming to the conclusion that the afore-stated allegations, against both the Respondent Doctors are not sufficient to hold that they were negligent either in the pre-operative diagnosis or while performing the CABG procedure. We hold accordingly. Nevertheless, we do find some deficiency on the part of the Hospital in maintaining proper record of the Patient, which fact, even the Treating Doctor seemed to accept when he had appeared before us. No satisfactory explanation is forthcoming for the missing treatment prescriptions for the period between 16.06.1998 and 23.06.1998 and the goof-up in the Master register of operation theatre which tends to indicate that the Patient had expired on 30.06.1998, i.e. the date of the surgery itself and not on 11.07.1998, when he was declared dead by the Hospital. Accordingly, while holding the Hospital to be deficient in service on that score, we are of the view that the ends of justice would be subserved by directing the Hospital to pay to the Appellants a lump sum amount of ₹3,00,000/- as compensation for the said lapses.
14. Resultantly, the Appeal is partly allowed to the extent indicated supra. The said amount shall be paid by the Hospital/Respondent No.1 herein, to Appellant No. 1 within four weeks from the date of receipt of a copy of this order, failing which the said amount shall carry interest @ 9% p.a. from the date of filing of the Complaint till actual realization.
15. The Appeal stands disposed of in the above terms, leaving the parties to bear their own costs.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER