State Consumer Disputes Redressal Commission
Suraiya Bibi vs Dr. Sunit Kumar Jana on 24 December, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/184/2014 ( Date of Filing : 28 May 2014 ) 1. Suraiya Bibi W/o Sk. Basiruluddin, Vill. Gimageria, P.O. Srirampur, P.S. Contai, Dist. Purba Medinipore. ...........Complainant(s) Versus 1. Dr. Sunit Kumar jana Consultant Radiologist, Sushruta Imaging Clinic, Udayan Cinema Road(near Contai Motor Training School), Contai, Dist. Purba Medinipore. 2. Sushruta Imaging Clinic Udayan Cinema Road(near Contai Motor Training School), Contai, Dist. Purba Medinipore. 3. The Superintendent, Contai Sadar Hospital Contai, Dist. Purba Medinipore. 4. Dr. T.K. Ghorai, Medical Officer, attached to Contai Sadar Hospital Contai, Dist. Purba Medinipore. 5. Contai Sadar Hospital Contai, Dist. Purba Medinipore. 6. West Bengal Medical Council, service through Registrar 8, Lyons Range, Kolkata - 700 001. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER For the Complainant: Mr. Sankha Prasad Ray , Advocate For the Opp. Party: Mr. Abhik Kr. Das, Ms. Koyeli Mukhopadhyay, Advocate Mr. Abhik Kr. Das, Ms. Koyeli Mukhopadhyay, Advocate Mr. Nirmalendu Patra, Advocate Dated : 24 Dec 2019 Final Order / Judgement
HON'BLE MR. JUSTICE ISHAN CHANDRA DAS,PRESIDENT This is an Application U/s 17(1)(a)(i) of the Consumer Protection Act 1986, where the Complainant claiming herself to be a victim of medical negligence applied for compensation in terms of her application.
Briefly stated the case of the Complainant is that the Complainant was a pregnant woman at the material time and for the purpose of her treatment she contacted one local medical practitioner Dr.P.L.Majhi at his chamber who referred for Ultra-sonography and as per said advice the complainant along with her husband went to the Sushruta Imaging Clinic for Ultrasonography on 7.10.2013 on which date such Ultrasonography test was done and the report was prepared and the same was handed over to the Complainant. The OP NO.1 , the Consultant Radiologist of Sushruta Imaging Clinic reported the same in the following manner -
" real time B.Mode sonography shows Intrautarine single life foetus in cephalic presentation during scan. Foetal cardiac activity present.Foetal movement is seen. Foetal heart rate - 150 B/M regular."
It is further reported that -
"SINGLE INTRUTERUNE LIVE FOETUS WITH CEPHALIC PRESENTATION OF APPROX. SONOGRAPHIC MATURITY 33-34 WEEKS."
The present complainant was admitted to Contai S.D. Hospital on 26/10/2013 for delivery and she was under the care of one T.K.Ghorai. At the time of admission, concerned Doctor T.K.Ghorai asked the husband of the complainant for submission of all papers regarding her treatment and ultrasonography report. After perusal of the sonography report the said Doctor had taken all steps for giving birth of the child , as if there was one child in the womb. At first the complainant gave birth to a female child on 26.10.2013 at about 11.10 p.m. After delivery of the female child it was reported to the husband that a female child was born and no further steps was taken by the Doctor for giving birth of another child which was already in the womb. Immediately after giving birth of the female child, the complainant was feeling severe pain and the same was reported to the concerned Doctor but they did not take any steps in this regard. As a result a considerable period of time elapsed and as a result of which the second child, who was already in the womb, died and finally the complainant gave birth to a dead male child. The petitioner was discharged on 27.10.2013 from the hospital with a Discharge Certificate which was issued with certain medical advice and from a perusal of the said discharge report, it was revealed that the first twin, a female child was born on 26.10.2013 at 11.10 p.m. as living and the second baby still born on 26.10.2013 at 11.46 p.m. who is dead. The complainant due to unwanted incident suffering severe pain and suffered mental agony for the loss of the male child which could not be compensated in any manner whatsoever and the same was effected due to the negligence and deficiency in service of the Radiologist - Dr. Sunit Kumar Jana of Sushruta Imaging Clinic who served an incorrect report and further also due to the negligence on the part of the Doctor engaged for delivery. The concerned Radiologist performed his job in a negligent manner and submitted the report showing that there was a single living foetus in the Cephalic . During scan and in the concluding part of the report such Doctor (Radiologist) reported that she has a single intrauterine live foetus with cephalic presentation of approximately Sonographic Maturity, 33-34 weeks. The complainant claimed that all twin pregnancies can be detected by 16-20 weeks scan and in case of multiple pregnancy , it is possible to diagnose multiple pregnancies about 8 weeks gestation and the babies are seen 18-22 weeks . But here gestation was 33-34 weeks duration when sonography test was done and this test failed to detect the twin baby in the womb of the patient. The deficiency in service on the part of the diagnostic laboratory is quite apparent due to the fact that the complainant delivered twin baby in quick succession. The complainant due to the aforesaid fact lost her male child in the womb and as mother of the child she suffered mental agony and is suffering for the loss of the baby and further severe pain due to wrong report, inspite of existence of another baby in the womb. She could not give birth to the baby in due time as the Doctor who was engaged at the time of delivery also failed and neglected to discharge his duties in detecting the existence of the twin baby in the womb and he failed and neglected to take appropriate steps in due time for delivery of the second twin baby. The complainant alleges that the Radiologist/O.P.No.1 was negligent in his duty and deficiency in service and became the cause of the mother's suffering. The complainant submitted detailed complaint to the OPs claiming compensation of a sum of Rs.90 Lakh (Rupees ninety lakh) for the negligent act and deficiency in service etc. as well as for the loss of the male child. But ultimately on 22.1.2014 the complainant received a letter from the Registrar of the West Bengal Medical Council by which the Authority concerned acknowledged the receipt of the representation dated 30.12.2013 and asked the complainant to clarify the relief which the council may give to the complainant. On receiving the said letter, the complainant contacted the Authority of the West Bengal Medical Council and orally submitted his grievance but the Authorities of the West Bengal Medical Council as well as the Hospital Authority of Contai Sadar Hospital flatly denied to redress the grievance as expressed by the complainant which prompted her to take recourse of this Commission claiming reliefs, as stated earlier.
The OP No.1 , Dr. Sunit Kumar Jana filed a Written Version on his behalf as well as the Proprietor Sushruta Imaging Clinic , OP NO.2 and denied the cause of action as averred in the Petition of complaint. Questioning the competence of the Commission in dealing with this type of medical negligence, this OP claimed that the matter in controversy between the parties has to be decided the opinion of Experts in the field. In the said Written Version this OP admitted that on 7.10.2013, the patient came to his Test centre for taking a normal Ultrasonography images with no disputes to be abnormal clinical findings and accordingly he performed the USG by using a machine manufactured by 'Toshiba Medical Corporation', and imported to India in 2007. The OP No.1 further stated that Diagnostic Sonography (Ultrasonography) is a ultrasound based diagnostic imaging technique, sued for visualizing internal body structures including tendons muscles joint vessels and internal organs for possible pathology or lesions. It is further stated that the practice of examining pregnant woman using ultrasound is called obstetric sonography and is widely used . The OP NO.1 tried to impress that Ultrasonography of the complainant was done following the normal procedure, maintained in Ultrasonography of a pregnant mother and detection of small dead foetus within the womb was missed by all the referring and treating Doctors and also by him as the foetus was dead and small. He further stated that such type of omission was purely due to technical limitations which does not effect the final outcome of the delivery and make no harm to the healthy living baby or mother and they were released from the hospital in healthy condition. Denying the negligence on his part , the OP NO.1 in his Written version clarified the situation and categorically stated that the USG being a non-invasive procedure could not be a cause of foetal death and ultimately the OPs NO.1 and 2 stated that the report of the patient was prepared as per well accepted medical norms without any negligence and this OP was diligent and tried his best to prepare the USG report.
The OP No.4 in a separate Written version also denied the allegation of medical negligence and contended that the USG report prepared by the OP NO.1 caused the whole mischief as he had to rely on the said report immediately before taking the process of delivery on the strength of the said report dated 7.10.13. The OP NO.4 in his separate Written version further stated that the patient delivered her first baby within one hour when she was taken in charge of the patient/mother but the presence of the second baby was diagnosed immediately after the first baby when the placenta was going to be delivered and there was no undue delay or negligence on his part to diagnose the presence of the second baby. He also expressed that before the birth of the first baby only, one foetal heart sound was heard from which it can be presumed that the second baby died before he attended the patient and within one hour of delivery of the first baby, the second baby was delivered at his instance. In the back-ground the OP NO.4 prayed for dismissal of the Complaint case against him.
The factual aspects of the matter with regard to treatment of the pregnant woman/complainant , taking USG from the Diagnostic centre of the OPs No.1 and 2, issuance of report of USG by the OP NO.1 from his centre OP NO.2, delivery of one female child as well as delivery of a dead foetus of a male child at the hospital (i.e. OP No.5) by Dr. T.K.Ghorai M.O., the O.P.No.4 attached to OP NO.5 etc. are not disputed.
Ld. Counsel appearing for the complainant in course of argument submitted that the OP No.1 being the Radiologist attached to the OP NO.2 prepared the USG report (Annexure B) and pointed out that as per such report the impression was "single intrauterine live foetus with cephalic presentation of aprox sonographic maturity 33 to 34 weeks." Drawing our attention to the said report he submitted that as per the report dated 7.10.2013, the USG of foetal profile was shown as real time B-Mode Sonography showing intrauterine single live foetus in cephalic presentation during scan. Foetal cardiac activity present foetal movement is seen and foetal heart rate 150 B/M regular. With reference to the said report it was submitted that the Radioloist concerned i.e. the OP NO.1 supplied his report to the parties as asked for by the referring Doctor P.L.Majhi for her further treatment till the delivery of the baby but the report itself being defective caused tremendous hardship and sufferings of the complainant which could have endangered her life but she was luckily saved. Clarifying the conduct of the OP NO.1/Radiologist ld. Counsel for the complainant submitted that his client could not enjoy the most important and emotional event of giving birth to a child which she lost due to the negligence of the said Radiologist by giving defective report. Clarifying the term 'negligence' he urged that negligence being the breach of a duty to take care is shown by a prudent man but in the instant case the OP No.1 claiming himself to be the expert in the field of Radiology was blaming the instrument which cannot be accepted in the eye of law.
He submitted that the OP NO.1 Dr. Sunit Kumar Jana of Sushruta Imaging Clinic issued a faulty report on 7.10.2013 wherein it was reported single intrauterine live foetus with cephalic presentation of approximate sonographic maturity 33-34 weeks. It is submitted before us that the Radiologist (OP NO.1) who issued such report at the maturity stage of the foetus cannot escape himself from liability for the sufferings of the complainant who had to suffer much at the hands of the OP NO.4, the Doctor of Contai Sadar Hospital as he (OP No.4) was entrusted for delivery of the complainant on the date. Placing reliance on a decision of the Hon'ble Apex Court in Post Graduate Institute of Medical Education and Research , Chandigarh -Vs- Jashpal Singh & Ors reported in (2009)7 SCC 330, he urged that the medical professional should be held responsible if it is found that the medical professions possessing skill in a subject committed mistakes and thereby caused sufferings of the patient by not providing proper service,, rather omitted to do so. He also submitted with reference to a decision of the Hon'ble Apex Court in Dr.Lakshman Balakrishna Joshi -Vs- Dr. Trimbak Bapu Godbole and Another reported in AIR 1969 , Supreme Court 128 and pointed out that the duties which a Doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties namely a duty of care in deciding whether to undertake the case, a duty of care in deciding the treatment to give or a duty of care in the administration of the treatment and a breach of these duties gives a right of action for negligence to the patient. He also urged that here not only the OP No.1 being the proprietor of Shurut Imaging Clinic but also the OP NO.4 who was entrusted for delivery of the baby at Contai Sadar Hospital was equally responsible for giving proper treatment to the complainant but both of them failed to do so and the complainant would be compensated adequately for her sufferings physical and mental, as well as the loss of a child, she had to suffer. Ld. Counsel for the OP NO.4 in course of his argument submitted that his client being the Medical Officer of a Govt. Hospital would be exonerated from any liability to pay compensation to the complainant for the loss caused to him/her for the so called medical negligence and relying on a decision of the Hon'ble Apex court in Indian Medical Association -Vs- V.P.Santha & Ors reported in (1995) 6 S.C.C. 651 he urged that the OP No.4 against whom the complainant is alleging cannot be held responsible and the decision of the Hon'ble Apex Court would be treated as a shield to protect him from any liability in paying compensation.
Fact remains the Patient/Complainant, a pregnant woman collected Ultrasonography report from the OP No.2 Sushruta Imaging Clinic where the OP No.1 being the consultant Radiologist prepared such report and it was handed over to the Complainant. Such report , the following was shown which is noted below :-
"Real time B-Mode Sonography shows intrauterine single life foetus in Cephalic presentation during scan. Foetal Cardiac activity present. Foetal movement is seen. Foetal heart rate 150 B/M regular"
"SINGLE INTRUTERUNE LIVE FOETUS WITH CEPHALIC PRESENTATION OF APPROX SONOGRAPHIC MATURITY 33-34 WEEKS" .
It is established from the Written Version of the OP NO.4 Dr. T.K.Ghorai that on the date of delivery of the patient, the complainant was admitted by the said OP NO.4 as per standard protocol and the complainant delivered her first baby within one hour . He also admitted that the presence of second baby was diagnosed immediately after the birth of the first baby when the placenta was going to be delivered. He also stated in his Written Version that he was surprised to know at the relevant point of time as to whether there was possibility of second baby which never reflected from the report of Ultrasonography dated 7.10.2013 . Such a statement of the Doctor, entrusted to cause delivery of the patient, conclusively established that the report of the USG was defective and that caused sufferings of the patient all through and that prompted the complainant to file the instant Complaint case claiming reliefs.
Ld. Counsel for the OP NO.4 in course of his argument tried to impress that the Medical Officer attached to Contai Sadar Hospital was innocent and prayed that his client should be absolved from liability in paying compensation, placing reliance on the decision of the Hon'ble Apex Court in Indian Medical Association (Supra). But since the OP NO.4/Doctor against whom there was no such allegation of negligence has been made out we are going to exempt him from liability. But so far as the involvement of the OP NO.1 being the Consultant Radiologist of OP NO.2 it is he who put his signature in the report dated 7.10.2013 (Annexure B), as Radiologist. Such a faulty report misguided the Doctor who was entrusted to cause delivery of the baby and became cause of mother's sufferings. Mere fact that the machine for the purpose of USG was an 'imported machine' and such defence cannot save the OPs No.1 and 2 from the liability due to the fact that the report of USG became the root of all evils and the architects of the said report cannot be escaped from their liability in paying adequate compensation to the complainant for her sufferings at the material time.
So far as the quantum of compensation is concerned , the complainant prayed for a sum of Rs.90 lakh (Rupees ninety lakh) for her sufferings as well as for the loss of her child. Undoubtedly, the giving birth of a child is always a joyous occasion of a family when a new born arrives. There is no such evidence whether the baby which was lost in the mother's womb or it met such unfortunate death in a natural process but due to the delayed delivery by the Doctor, being misguided by the faulty/USG report, as observed earlier.
In the background, taking into consideration the materials on record we are of firm opinion that the direction to the OPs no.1 & 2 to make payment of a sum of Rs.90,000/- (Rupees ninety thousand) towards compensation and Rs.10,000/- (Rupees tent thousand) towards litigation cost would be sufficient to meet the ends of justice .
Hence, we dispose of the Complaint Case by allowing it in part against the OPs NO.1 and 2 on contest but we dismiss the same against rest of the OPs and we direct the OPs NO.1 and 2 who are jointly and severally liable to make payment of a sum of Rs.90,000/- (Rupees ninety thousand) and Rs.10,000/- (Rupees ten thousand) as noted above towards compensation and litigation cost, to be paid to the complainant within 60 days from the date of the order. In default, the complainant shall be entitled to recover the said amount from the OPs NO.1 and 2 through legal process. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER