State Consumer Disputes Redressal Commission
Smt. Sutapa Ghosh vs Apollo Gleneagles Hospitals & Others on 23 June, 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. : 27/O/2007 DATE OF FILING : 25.06.2007 DATE OF FINAL ORDER: 23.06.2009 COMPLAINANT Smt. Sutapa Ghosh W/o Late Biswanath Ghosh Presently residing at Khalui Bill Math First Lane Burdwan-713 101. OPPOSITE PARTY 1. Apollo Gleneagles Hospitals, Kolkata, 58, Canal Circular Road P.S. Phoolbagan Kolkata-700 054. 2. Dr. Suresh Ramasubban working for gain at the Apollo Gleneagles Hospitals, Kolkata 58, Canal Circular Road P.S. Phoolbagan Kolkata-700 054. 3. Dr. Bela Das working for gain at the Apollo Gleneagles Hospitals, Kolkata 58, Canal Circular Road P.S. Phoolbagan Kolkata-700 054. PROFORMA OPPOSITE PARTY 4. Superintendent, Burdwan Medical College & Hospital Burdwan. BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY MEMBER : MR. S.COARI FOR THE PETITIONER / APPELLANT : Mr. S.K.Banerjee, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. P.K.Basu, Ld. Advocate (OP 1&2) : O R D E R :
MR.
P.K.CHATTOPADHYAY, LD. MEMBER This is a complaint case alleging medical negligence instituted by Smt. Sutapa Ghosh, W/o Late Biswanath Ghosh, Burdwan, against (1) The Administrator, Apollo Gleneagles Hospitals, Phoolbagan, Kolkata, (2) Dr. Suresh Ramasubban, Apollo Gleneagles Hospitals, Kolkata, (3) Dr. Bela Das, Apollo Gleneagles Hospitals and (4) Superintendent, Burdwan Medical College & Hospital, Burdwan, as Proforma Opposite Party. The complainant alleged medical negligence and deficiency in service on the part of the Ops on different scores while her late husband Biswanath Ghosh was under the treatment in the hospital of the OP No. 1 under OP No. 2 from 6.12.05 till his sad and untimely death occurring on 10.01.06.
The case of the complainant, in brief, was that her husband, Late Biswanath Ghosh was a renowned Advocate, ordinarily practising in the court of District & Sessions Judge, Burdwan, who on 5.12.05 returned home from Court with problems of weakness, head reeling, severe back ache and was then admitted in the Burdwan Medical College & Hospital in the Intensive Care Unit where chest xray was done, but nothing abnormal was found except some congestion in the lungs.
The patient was advised by the doctors of Burdwan Medical College for shifting to a hospital with superior and upgraded facilities when the complainant decided to shift her husband to the hospital of the OP No. 1. On 6.12.05 Dr. Bela Das, OP No. 3, came to Burdwan Medical College by an ambulance of OP No. 1 for shifting the patient and the ambulance reached the hospital of OP No. 1 at about 21.00 hours when Rs. 4,000/- was paid to the OP No. 3 towards her professional fees and also towards ambulance charges. But no receipt was given against such payment in spite of demands. At about 21.13 hours the complainants husband was admitted at the hospital of OP No. 1 under the treatment and care of the OP No. 2. On 7.12.05 the patient was found fully conscious, who tried to talk with the complainant by removing his oxygen mask and the examination of the fluid from the lungs did not reveal anything adverse. On 11.12.05 the patient was removed from ventilation when he talked to his junior colleagues over telephone and started reading newspapers. On 13.12.05 the patient was again put on ventilation when the patient party failed to understand the reasons for further resorting to keeping the patient on ventilation when the patient was non-alcoholic, non-diabetic, non-smoker having no complaint of high blood pressure and more so, when nothing adverse was detected in the chest xray, ECG report and also in Broncoscopy. Being somewhat perplexed at this stage the complainant and her relatives requested the OPs for arranging a video conference with Dr. Rama Krishnan of Apollo Gleneagles which was arranged when the complainant after consultation understood that the patient would require some time for recovery and the alveoli of patients lungs was fully functional and working properly and the OP no. 2 also assured the complainant of full recovery of the patient. On 18.12.05 the patient was removed from ventilation when the patient complained of misbehaviour on part of one attending sister and the matter was brought to the notice of P.R.O. of OP No. 1. On 19.12.05 the patient was kept on ventilation and other tests including Broncoscopy were done when nothing adverse or abnormal was found, but the patient was getting weaker on account of frequent blood tests and other examinations. On 23.12.05 the patient party was informed that ventilation for a long duration, as was the case, could be fatal and the only option left was Tracheotomy and as the patient being aware of this position became very upset and by gesture, conveyed his request for taking him away from the hospital of OP No. 1.
During this period when winter season was on, the patient suffered extreme dry condition of skin and lips which were cracked even though the patient party was billed for a large pack of cold cream. At this precarious stage of the patient the OP No. 2, under whose care the patient depended, went on leave from 26.12.05 to 30.12.05 for enjoying Christmas festival keeping the patient at the mercy of others. Utmost request of the complainant and her relatives could not change the situation and a Pulmonologist, who visited the patient at least 10/12 times charged Rs. 1,000/- per visit when no special advice or prescription followed therefrom. All this while, the hospital authority never attended satisfactorily to patient parties queries and the sister evaded questions on the treatment procedure always directing the patient party to ask such questions to concerned doctor even when there were visible examples of various neglect and flaws. On 8.1.06 the OP No. 2 intimated that the patients lungs were absolutely clear and medical parameters were also satisfactory when it was further told that his tracheotomy will be removed on 9.1.06 and he will be shifted to general bed. It was also intimated that the patient was very feeble and would require medical supervision for three more days and thereafter he would be released.
On these hopeful assurances the complainant returned to Burdwan on 9.1.06 for arranging fund to clear outstanding dues at the time of discharge. On the same day when the daughter of the complainant, Smt. Sudarshana Ghosh, and the complainants sister, Smt. Sumita Sarkar, went to the hospital they were told that the patient was fully cured. However, most unfortunately on 10.1.06 morning the complainant was informed at her school that her husband, the patient, Biswanath Ghosh, was no more and died of cardiac arrest. The complainant submitted that for the above-said treatment of her late husband for the period from 6.12.05 to 10.1.06, i.e. 35 days, she paid Rs. 5,61,175.79 to the OP No. 1 on different heads other than Rs. 4,000/- which was paid to Dr. Bela Das, the OP No. 3, on reaching the hospital for her fees.
Alleging that the Ops herein acted in most rash and negligent manner in providing medical treatment to her late husband not having given due and proper care and attention, amounting to gross neglect and deficiency in service, the complainant prayed for compensation for an amount of Rs. 20,00,000.00 with reimbursement of hospital expenses of Rs. 5,61,175.79 and compensation for mental agony and pain for Rs. 10,00,000.00 with litigation cost of Rs. 20,000/- totalling Rs. 35,91,175.79.
The OP Nos. 3 & 4, Dr. Bela Das and the Superintendent, Burdwan Medical College & Hospital respectively were served with notices, but they did not contest the case. The OP Nos. 1 & 2 namely, Apollo Gleneagles Hospitals, Kolkata and Dr. Suresh Ramasubban respectively, entered appearance and filed written version stating inter alia that the complaint was essentially frivolous, motivated and concocted and the allegations in the complaint were denied and disputed. Stating that contrary to submissions of the complainant in Para-2 of the petition of complaint the OP No. 1/Hospital had no branch at Burdwan and the symptoms of the patient at the point of admission were quite grave as established in evidence from Bed-head Ticket. In the severity of the ailments of the patient he was put to ventilation on complaints of acute respiratory failure and payment of Rs. 4,000/- allegedly made to Dr. Bela Das was not within the knowledge of the present OP Nos. 1 & 2. From day one the patient was on mechanical ventilation and his condition did improve slightly when he was taken off BP supporting machine with Oedema fluid in the lung having been reduced and he was extubated on 11.12.05. On 10.12.05 when the patient was being taken off ventilator his sedation was minimal and the patient was trying to communicate. However, in post-extubation the patient continued to need high oxygen level. CXR did not show any improvement and he had to be put on non-evasive ventilation.
The need for reintubation could be indicated from reports as revealed from records of Oximetry and Blood Gas Report.
The patients son and wife were briefed on the condition of the patient. As a matter of fact, the procedure of explaining the progress of the patient was practised two times everyday. However, the condition of the lungs worsened after seemingly making a good recovery from infection which was the hallmark feature of Acute Respiratory Distress Syndrome and the only organ deteriorating at that time was the lung as was evident from the reports of CXR and CT chest findings. It was to be noted that this had no relation to the patients suffering from diabetes, high blood pressure and other ailments or otherwise. Stating that Broncoscopy was required to be done after re-intubation in order to ensure the absence of other diagnosis like acute eosinophilic pneumonia, Human Rich Syndrome and/or any other infection including TB and this procedure confirmed the findings of the treating doctors it was also submitted that Dr. N.Ramakrishnan was consulted only on the request of the patient party to see as to whether any further additional/further treatment was required to be done to ensure fast recovery of the patient. He, however, concurred with the line of management, diagnosis and treatment plan and his statement that recovery would happen was based on the fact that it was 1st week of ARDS and patient might not progress to the Fibropholiferative state of ARDS, which was what the patient unfortunately suffered.
Denying that the patient was removed from went on 18.12.05 it was stated that his condition on ventilation was very serious and the tests confirmed of such status. Bronscopy was again done on 19.12.05 in order to determine whether the patient had acquired infection of TB which procedure was done only after obtaining consent of the patient party and it was wrong to assume that the patient was getting weaker because of blood tests when weakness was due to underlying disease and the given catabolic state. Explaining the need for fracheostomy it was stated that the same was intended to help enhanced swallowing, mobility, speech and better treatment and comfort. Denying that the OP No. 2 went on leave from 26.12.05 it was stated that he went on leave from 1.1.06 to 4.1.06 and that too after obtaining due permission and authority from the hospital authority as per protocol with proper arrangements of looking after the patients undergoing treatment on his supervision and care. It was stated that Dr. Ashok Sengupta and Dr. Angshuman Mukherjee, the noted pulmonologists, amongst others saw the patient on regular basis and on the request of the patient party, Dr. P.S.Bhattacharya also examined the patient, OP No. 2 requested consultation from Dr. Amitava Chakraborty, Infectious Disease Consultant from CMRI Hospital also which was done after asking the patient party and on their permission and since he was not attached to the institution of the OP No. 1, his charges were required to be paid separately, which position was clearly explained to the patient party apriori. As for his contribution, every time he saw the patient he wrote a note in the Progress Note and his advice was followed for the benefit of the patient.
Referring to the cost of treatment or of medicines it was stated that expenses in a hospital of given standing was always as per norms and expenses of medicines were always checked and cross-checked at appropriate levels. Referring to Para-17 of the complaint alleging certain statements on the part of OP No. 2, it was stated that the given statements were preposterous on the face of critical condition of the patient documented in the Bed-head Ticket and Progress Note when the patient party was clearly told about the serious condition of the patient and poor prognosis. On 6.1.06 and again on 8.1.06 it was clearly documented that the patient was not responding to spontaneous breathing on PS mode and the patient had comorbid condition like pulmonary artery hypertension to persistent hypoxia and renal dysfunction with high urea/creatinine and low albumin.
Referring to the cause of death the Ops stated that ARDS was a diagnosis as was mentioned in Progress Note right from the beginning and that disease led to hypoxia, retention of Carbon Dioxide, respiratory acidosis and bradycardia leading finally to asystale and declaration of death. Referring to bedsore as was suffered by the patient, it was submitted that bedsore was result of prolonged lying in a recumbent position and for a thin patient with bony prominences, low albumin idespite parenteral and enteral high protein diet. In spite of best nursing and care total elimination was not achievable.
Stating that the best of treatment was meted out to the patient with correct diagnosis and management plan and having consulted the best of doctors including Dr. Abani Roy Chowdhury and Dr. P.S.Bhattacharya, the OP Nos. 1 & 2 left no stone unturned for proper treatment of the patient. However, it was unfortunate that the expectation of the complainant could not be fulfilled since what she wanted was beyond the reach of medical science. Accordingly, the OP Nos. 1 & 2 sought dismissal of the complaint with compensatory cost.
The matter was heard from respective sides when the complainant adduced evidence of five witness namely, the complainant herself (PW-1), Sri Ashis Banerjee, Advocate (PW-2), Smt. Sudarshana Ghosh, daughter of the deceased (PW-3), Smt. Sumita Sarkar, sister-in-law of the deceased (PW-4) and Sri Bikram Ghosh, son of the deceased (PW-5). The witness aforesaid sought to prove the case of the complainant. The OP Nos. 1 & 2 also filed their evidence when Sri Indranil Ghosh being authorized on behalf of the OP No. 1/Institution filed evidence.
Concluding the complainants argument it was contended that the evidence of OP Nos. 1 & 2 were mere denials only and it was barely an effort to shake off their liability, negligent act and deficiency in service, failing altogether to create a believable impression to dispute the charges of the complainant. The complainant relied on citations in (i) II 2008 CPJ 93 (NC) G.Balakrishna Pai & another Vs. Sree Narayana Medical Mission General Hospital & TB Clinic and others and (ii) I (2008) CPJ 191 (NC) Janak Kantimathi Nathan (Doctor) & others Vs. Murlidhar Eknath Masane & others. In their evidence, the OP Nos.
1 & 2 detailed the position of the patient at the time of admission and the treatment schedule with the implications thereof and stressed on the point that utmost care was taken for the best of treatment of the patient and there was most reasonable, fair, proper and competent treatment of the patient though tragedy could not be avoided.
DISCUSSION A. The primary elements of the complainants case are that Late Biswanath Ghosh, husband of the complainant, a practising lawyer at Burdwan, returned home from the Court on 5.12.05 with complaints of weakness, head reeling and severe back-ache and was admitted to Burdwan Medical College & Hospital in the Intensive Care Unit where a chest xray was done, but nothing abnormal was found excepting some congestion in the lungs. As per advice of the doctors at Burdwan Medical College, Late Biswanath Ghosh was required to be shifted to an upgraded hospital in Kolkata and accordingly he was shifted to Apollo Gleneagles Hospital, Kolkata (OP No. 1) on 6.12.05.
The patient underwent treatment there from the night of 6.12.05 and succumbed to his illness on 10.1.06 when in between the period the patient was recovering well and was due to be discharged on completion of his treatment there. The complainant stated that the patient was non-alcoholic, non-diabetic, non-smoker having no complaint of high blood sugar, etc. and nothing wrong was detected in the chest xray report, ECG report and also Broncoscopy. Not only was the complainant assured of complete recovery of the patient, but a video conference with Dr. Rama Krishnan of Apollo Gleneagles arranged at the behest of the complainant revealed that while time was needed for complete recovery, alveoli of the patients lungs was intact and fully working and there was no adverse report on the status of the patient.
Sometimes there were problems with attending sisters who were unduly harsh and non-cooperative, which position was reported to the P.R.O. of the hospital. Alleging that there was neglect and deficiency in service on part of the OP No. 1, the hospital, and Dr. Suresh Ramasubban, the doctor under whose charge the patient was admitted and treated, the complainant listed occasions when the patient was not treated well or that the patient was exposed to ventilation for a protracted period or that tracheotomy was performed even though the patient was unable to appreciate the necessity thereof at the given stage.
Alleging further that due to lack of care the skin and lips of the patient were cracked in spite of application of suitable medication, it was stated that specialist doctors made several visits without any special advice or without any prescription which was fully made for financial gain. It was also alleged that the OP No. 2 namely, Dr. S.Ramasubban went on leave from 26.12.05 to 30.12.05 for enjoyment of Christmas fest. It was submitted that this was done ignoring utmost request of the complainant and her relatives when the patient was solely dependant on his service. As late as on 8th and 9th January, 2006 the complainant stated that she was assured that the parameters of the patient was satisfactory and he was waiting to be discharged immediately after shifting to general bed and for a small stay. Thereafter on 9th January the daughter of the complainant namely, Smt. Sudarshana Ghosh and the complainants sister, Smt. Sumita Sarkar, went to the hospital when they were told that the patient was fully cured. But in the morning of 10.1.06 the complainant was informed that her husband, Biswanath Ghosh was no more.
B. From the foregoing the components of medical negligence as have been alleged are as under :-
i) Providing medical treatment, care and attention in most rash and negligent manner resulting in medical negligence and deficiency in service towards treatment of Late Biswanath Ghosh, husband of the complainant.
ii) Absence of Dr. Ramasubban for the peiod from 26.12.05 to 30.12.05 on Christmas fest when the patient was under his charge, overriding fervent requests of the patient party resulting in gross lack of medical care.
iii) Sufferance of the patient of bedsore, cracked lips and dried condition of skin in spite of charging of quantum of medication without fruitful utilization.
(iv) The complainant adduced five witnesses in support of the foregoing allegations namely, that of the complainant herself (PW-1), Sri Ashis Banerjee, Advocate (PW-2), Smt. Sudarshana Ghosh, daughter of the deceased (PW-3), Smt. Sumita Sarkar, sister-in-law of the deceased (PW-4) and Sri Bikram Ghosh, son of the deceased (PW-5). We have carefully gone through the records and also thoroughly examined the evidence so adduced.
C. Ops denied and disputed the allegations aforesaid and stated that the patient was brought in a critical condition on oxygen and was admitted and immediately put to ventilation under care of Dr. S.Ramasubban, OP No.
2. As revealed from the Bed-head Ticket Late Biswanath Ghosh continued to be in critical condition when all medical care was taken with consultation from appropriate other quarters including video conference with noted authority and consultation with other medical specialists working elsewhere. Even though the utmost possible medical care was taken it was unfortunate that the patient did not survive and the allegations were baseless without any evidence and the complaint was devoid of any merit.
Arguing that evidence of OP Nos. 1 & 2 revealed best of medical practice as per settled law as was extended to the patient, it was contended that no case has been established that the allegations as made out were because of action of the Ops which were not as per accepted medical practice and what was done should not have been done or what was not done should have been done. Relying on the judgement of the Honble National Commission in 2004 CTJ 175 (NC) it was stated that those allegations were required to be supported by expert evidence or available medical literature on the subject. Relying on judgement in the case of Jacob Mathew reported in 2005 (3) CPR 75 (SC) it was stated that no credible opinion given by any other competent doctor in support of charge of rashness or negligence on the part of the treating doctor has been placed by the complainant and in absence of those evidence the complaint cannot be accepted at all. Relying on the decision in 2001 (3) CPJ 235 (NC) it was stated that without expert evidence onus upon the complainant cannot be ordinarily discharged. Discussing symptoms of requirement of high oxygen level and non-evasive ventilation and detailing the given condition of acute lung injury (AU) and acute respiratory distress syndrome of the patient records as were available from BHT were cited and analysed and the necessity of performing Tracheotomy was detailed.
Denying the allegation of unnecessary visits of other doctors and specialists it was sought to be established that this was almost inevitably done at the behest of the patient party and that every time when a doctor visited the patient there was a prescription proper which was duly followed. As for the absence of the doctor on leave for a period, it was pointed out that firstly the leave period was wrong and secondly, that the doctor went on leave for a small period from 1st to 4th January, 2006 on utmost family urgency, much after, with due alternative arrangement and came back well ahead during which period the patient had due supervision by competent medical specialists which acted as a team from the onset of the treatment till the last.
D) We have gone through the records and evidence adduced by both sides and also examined the Bed-head Ticket and other treatment records. Firstly, we do not find any evidence on part of any medical specialist nor any excerpt from any medical text or treatise to hold that indeed there was any lack of medical care in the treatment of Late Biswanath Ghosh or that there was any extent of medical negligence or deficiency on part of the OP Nos. 1 & 2, which was established through any evidence. From day to day records of treatment in the Bed-head Ticket we find that the patient was admitted to OP No. 1 hospital in a very critical condition and underwent treatment from specialist doctors at the Critical Care Unit with occasional marginal improvement, but no lasting relief. The patients suffering from acute lung injury and acute respiratory distress syndrome had characteristic clinical features and we find that everything possible was done to provide relief to him including consultation with extraneous authority, but the patient unfortunately did progress to Fibroproliffesative state of ARDS. This was not a fault on part of the OP Nos. 1 & 2. On the issue of the patients suffering from Bedsore/cracked skin and lips, the BHT reveals that appropriate treatment was meted out and medication was applied, but in spite of best of efforts the response in some sick patients fails as a result of patients lying in the same position at a time and also because of mal-functioning of the blood vessels that supply blood to the skin and underlying tissues.
As for OP No. 2s alleged absence for a period on holiday during critical treatment process of the patient, we find that the allegation was untrue as the period was wrong and secondly, the doctor was on a very short leave due to urgent family call during which all possible alternative arrangements were made to which we are satisfied. Referring to Acute Lung Injury as suffered by the patient we find that the same has been defined as a syndrome of acute and persistent lung inflammation with increased vascular peneability. AU is characterized by three clinical features; Plateral radiographic infiltrates. A ratio of the partial pressure of arterial oxygen to the fraction of impired oxygen (P002/702) between 201 and 300mm Hg. regardless of the level of positive evi-expiratomy pressure (PEEP). There was no clinical evidence on the patent for on elevated left atrial pressure. As measured, the pulmonary capillary wedge pressure was 18mm. Hg. Or less.
Regarding the definition of ARDS it is the same as acute lung injury except that the hyporia is worse, repairing a Pu02/F102 ratio of 200mm.Hg. or less, regardless of the level of PEIP. However, the distractions between acute lung injury and ARDS is somewhat arbitrary, since the degree of gas exchange disturbance does not correlate reliably with the extent of the underlying pathology. Furthermore, the severity of hyporia on presentation does not impact predictably on clinical course or survival. In the event the patient suffered aforesaid ailments, there was no contrary evidence either on the ailments or on any specific negligence on the treatment thereof.
E) In above view of fact and law the complaint case being devoid of any merit and substance is liable to be dismissed without cost.
ORDER Hence, it is ORDERED that the complaint be dismissed on contest without cost.
MEMBER MEMBER