State Consumer Disputes Redressal Commission
Dr. Purnendu Roy vs Subhra Sankar Mukherjee on 20 January, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1064/2014 (Arisen out of Order Dated 20/08/2014 in Case No. CC/198/2011 of District Kolkata-II(Central)) 1. Dr. Purnendu Roy Consultant, Department of Gastro Surgery & Laparoscopy, Apollo Glenegles Hospital, 58, Canal Circular Road, Kolkata -700 054. ...........Appellant(s) Versus 1. Subhra Sankar Mukherjee S/o Late Susanta Kumar Mukherjee, 2, Shibtala Road, P.S. - Naihati, Dist. North 24 Pgs., Pin-743 165. 2. Apollo Glenegles Hospital 58, Canal Circular Road, Kolkata -700 054. 3. Dr. Mahesh Goenka Director & Chief Institute Gastroenterology, Apollo Glenegles Hospital, 58, Canal Circular Road, Kolkata -700 054. ...........Respondent(s) BEFORE: HON'BLE MR. TARAPADA GANGOPADHYAY PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Sumit Sen , Advocate For the Respondent: Inperson/, Advocate Dated : 20 Jan 2017 Final Order / Judgement 20.01.2017 MR. TARAPADA GANGOPADHYAY, HON'BLE MEMBER
These two Appeals bearing No. FA/1035/2014 and FA/1064/2014 have been filed u/s 15 of the Consumer Protection Act, 1986 by the OP No. 1 and the OP No. 2 respectively assailing the judgment and order dated 20.8.2014 passed on contest by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in connection with the Complaint Case No. 198 of 2011, directing the OP Nos. 1 & 2 to pay by Demand Draft to the Complainant Rs. 6,00,000/- and Rs. 10,00,000/- respectively within one month from the date of the order for negligent and deficient manner of service, failing which the OP Nos. 1 & 2 shall be liable to deposit with the Ld. District Forum Rs. 5,000/- per day of delay as penal interest.
Both the Appeals, involving similar facts and identical parties, have been heard analogously and are being disposed of by this common order.
Facts of the case, bereft of unnecessary details, as emanating from the materials on records, are, in short, that the Respondent/Complainant took the case of his wife, since deceased, to Dr. Purnendu Roy, being the OP No. 2, on 20.3.2010 with complaint of abdominal pain for second opinion on treatment when Dr. R.K.Sarkar of Echo-Hospital & Diagnostics, Barasat, North 24 Parganas, withheld the operation of Calculus Cholecystitis due to 'altered LFT & Thyroid' as evident from the Discharge Certificate dated 21.3.10 of the concerned Hospital & Diagnostics, with advice to report after 7 days with fresh report of LFT. Dr. Purnendu Roy, being the OP No. 2, diagnosed the disease as 'AC Cholecystitis' without any observation about the clinical examination of any test reports and signs and symptoms of the disease so diagnosed and without any advice for any biochemical, radiological or sonographic tests of the deceased wife of the Complainant as evident from the prescription dated 20.3.2010 of Dr. Purnendu Roy, being the OP No. 2, and advised for admission of the deceased wife to the OP No. 1-Hospial. According to such advice, the Respondent/Complainant got his wife admitted to the said OP No. 1-Hospital on 21.3.2010. After admission, the OP No. 2-Doctor performed Laparoscopic Cholecsystectomy under general anaesthesia upon the wife of the Respondent/Complainant on 23.3.2010 without any biochemical, radiological or sonographic test before undertaking the said surgery and without informing the Respondent/Complainant about any side effect of the said operation despite the fact of withholding of surgery by Dr. R.K.Sarkar of Echo-Hospital & Diagnostics on the ground of altered LFT as mentioned hereinbefore, and discharged the patient on 25.3.2010 as evident from the Discharge Summary dated 25.3.2010 of the OP No. 1-Hospital.
After discharge, the wife of the Respondent/Complainant further suffered unbearable abdominal pain and was again admitted on 4.4.2010 to the OP No. 1-Hospital for the second time under Dr. Purnendu Roy, the OP No. 2. After admission for the second time, the OP No. 2-Doctor advised for MRCP for the first time and after examining the said MRCP report which showed the presence of stones in CBD, referred the patient to Dr. Mahesh Goenka, being OP No. 3, who performed ERCP upon the wife of the Respondent/Complainant and extracted 'single stone' along with Sphincterotomy as evident from the ERCP report dated 6.4.2010 of the OP No. 1-Hospital. Ultimately, the wife of the Respondent/Complainant died on 7.5.2010 for 'Sepsis with multi-organ failure in the case of acute biliary pancreatitis' as evident from the Death Certificate dated 7.5.2010 of the OP No. 1/Hospital. For the entire treatment the OP No. 1 raised bills to the tune of Rs. 13,33,736.91 as averred in the Petition of Complaint.
The Ld. Advocate for the Appellant/OP No. 1 and the OP No. 3 submits that the Ld. District Forum passed the order impugned on the basis of the averment of the Respondent No. 1/Complainant in the Petition of Complaint, not on the basis of evidence and cross-examination, ignoring the settled principle of law in this respect and that the medical negligence cannot be inferred but required to be proved by evidence.
The Ld. Advocate also submits that there was no medical negligence on the part of the Appellant/OP No. 1-Hospital except the allegation of excessive amount of bill for treating the deceased wife of the Respondent No. 1/Complainant, although such allegation cannot be raised as per settled principle of law in this respect by the Hon'ble Supreme Court in Tamil Nadu Housing Board & Others Vs. Sea Shore Apartments Owners Welfare Association reported in 2008 CTJ 119 (Supreme Court) (CP) and by the Hon'ble National Commission in Rajasthan State Road Transport Coporation Vs. Dunger Chand, reported in I (1995) CPJ 37 (NC), wherein it was held that the price fixation is not the function of the court, and hence, the matter does not fall within the purview of allegation under the Consumer Protection Act, 1986.
The Ld. Advocate continues that the Appellant/OP No. 1-Hospital is equipped as per standard protocol for Laparoscopic Cholecsystectomy (otherwise known as Lap-Chole) and hence, there is no negligence on the part of the Appellant/OP No. 1-Hospital.
The Ld. Advocate adds that the wife of the Respondent No. 1/Complainant was suffering from 'Mirizzi's syndrome' resulting in raise of billirubin level and that Lap-Chole is not contra-indicated in the specialist centre as is the OP No. 1-Hospital.
The Ld. Advocate further submits that the Ld. District Forum in its impugned order has exonerated the OP No. 3-Doctor from the charge of medical negligence and the Complainant has not challenged the said order of exoneration by filing any appeal, which results in acceptance by the Complainant of the fact of exoneration, and hence, the OP No. 3-Doctor stands free from charge of medical negligence.
The Ld. Advocate finally submits that in view of the aforesaid submission the Appeals should be allowed and the impugned judgment and order be set aside and the Complaint be dismissed.
The OP No. 2-Doctor, appearing in person, filing BNA, submits that uneventful Laparoscopic Cholecsystectomy was done after diagnosing acute Cholecystitis as indicated in the prescription dated 20.3.2010, and that Pancreatitis developed after ERCP subsequent to Lap-Chole and such ERCP was done by another doctor, i.e. the OP No. 3, and hence, he is not liable for post-ERCP pancreatitis.
In support of his such contention the OP No. 2-Doctor referred to the following decisions:
Tilat Chowdhury & Anr. Vs. AIIMS, New Delhi & Anr., decided on 9.11.2012 in Original Petition No. 114 of 1999;
Dalbir Singh Vs. Lala Harbhagwan Memorial and Dr. Prem Hospital Pvt. Ltd. & Anr., reported in II (2015) CPJ 465 (NC);
Martin F D'Souza Vs. Mohd. Ishfaq, reported in (2009) 3 SCC 54;
V.Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., reported in (2010) 5 SCC 513;
Moloy Kr. Ganguly Vs. Sukumar Mukherjee & Ors., reported in AIR 2010 Supreme Court 1162.
On the other hand, the Ld. Advocate for the Respondent/Complainant submits that the prescription dated 20.3.2010 clearly shows that the OP No. 2-Doctor undertook Lap-Chole without ascertaining before such surgery actual billiary anatomy of the deceased wife by advising any biochemical tests such as, Billirubin, LFT, etc. or any sonography test such as, MRCP, being most important, or USG, as is required to locate the position of the stone as per standard medical protocol before undertaking such kind of surgery.
The Complainant also submits that the OP No. 2-Doctor undertook Lap-Chole without any test before surgery despite withholding of operation by another doctor and thus without proper care and skill as any other ordinary medical person would have applied, and that as a result of such carelessness and breach of standard medical protocol the wife, since deceased, had to undergo ERCP further by the OP No. 3-Doctor to whom the OP No. 2-Doctor referred when the deceased wife had to revisit the OP No. 2-Doctor further on 4.4.2010 for continuous abdominal pain even after Lap-Chole, and that in course of ERCP 'single stone extracted' as is evident from the ERCP report dated 6.4.2010 which clearly indicates the absence of standard care of any ordinary medical man on the part of the OP No. 2-Doctor.
The Complainant continues that extraction of single stone from the bile-duct clearly indicates absence of proper care and breach of standard medical protocol by the OP No. 2-Doctor before the surgery the OP No. 2-Doctor performed.
The Complainant finally submits that as a result of such carelessness and breach of standard medical protocol by the OP No. 2-Doctor before Lap-Chole, as is substantiated by the medical report dated 28.2.2012 of I.P.G.M.E.&R - SSKM Hospital, the wife of the Complainant had to suffer Pancreatitis which ultimately caused the death of her only at the age of 38 years leaving behind her two children and other family members in helpless position.
The Complainant adds that the OP No. 3-Doctor is also responsible for careless handling of the wife, since deceased, at the time of ERCP, which ultimately resulted in 'acute pancreatitis', precautionary measures for which were not taken by the OP No. 3-Doctor as is proved by absence of any mention in this respect in any prescription by the OP No. 3-Doctor.
The Complainant concludes that the compensation as awarded by the Ld. District Forum is justified in view of the irreparable loss and high degree of suffering of the family of the deceased wife who expired very prematurely.
The Complainant finally submits that in view of the submission the Appeals should be dismissed and the impugned judgment and order be affirmed.
We have heard both the sides appearing, considered their respective submission and perused the materials on records.
Exchange of interrogatories and replies thereto among the parties involved, as available on records, clearly negates the allegation by the Ld. Advocate for the OP No. 1-Hospital about absence of cross-examination before the Ld. District Forum.
The prescription dated 20.3.2010 by the OP No. 2-Doctor, as available on records, exhibits that the OP No. 2-Doctor performed Lap-Chole without advising any biochemical tests, such as, Billirubin, LFT, etc., or sonographic tests, such as MRCP, or radiological tests, as are generally done by any ordinary man of medical profession before Lap-Chole for accurately ascertaining the billiary anatomy of the patient, despite withholding on 21.3.2010 for about a week the surgery by another doctor of Echo-Hospital & Diagnostics, Barasat, North 24 Parganas.
ERCP report dt. 6.4.2010, as done by OP No. 3-Doctor after referring the patient to him by the OP No. 2-Doctor after revisiting of the deceased wife, as available on records, clearly exhibits the extraction of single stone from the bile-duct by the OP No. 3-Doctor even after Lap-Chole done by the OP No. 2-Doctor, which could have been avoided had the OP No. 2-Doctor before Lap-Chole accurately ascertained the actual LFT and billiary anatomy of the deceased wife of the Complainant when another doctor, i.e. Dr. R.K.Sarkar of Echo-Hospital & Diagnostics, Barasat, wherefrom the deceased wife was taken to OP No. 2-Doctor for second opinion, withheld the surgery for seven days from 21.3.2010 for altered LFT as evident from the Discharge Certificate dated 21.3.2010 of the said hospital following the standard medical protocol and medical ethics. All the aforesaid lapses and breach of standard medical protocol on the part of the OP No.2-Doctor clearly indicate absence of care, diligence and resultant medical negligence on the part of the OP No. 2-Doctor as substantiated by independent medical report dated 28.2.2012 of the Three-Member Committee of I.P.G.M.E.&R - SSKM Hospital, Kolkata.
The expert opinions, as have been furnished and relied upon by the OP No. 2-Doctor in respect of absence of medical negligence on the part of the OP No. 2-Doctor, do not deserve reliance as independent evidence, the experts involved in the said reports having been selected by the OP No. 2-Doctor himself but not by any independent authority concerned.
As regards the liability of the OP No. 1-Hospital, it is well-settled by the Hon'ble Supreme Court in Smt. Savita Garg Vs. Director, National Heard Institute, reported in (2004) 8 SCC 56, that the hospital whose duty is to ensure absence of care and diligence of the doctors concerned, is vicariously liable for the conduct of its doctors, both on the panel and the visiting ones.
The decisions referred to by the Ld. Advocate for the OP No. 1 in relation to determination of the amount of compensation as awarded by the Ld. District Forum are not applicable in the instant case as those cases involved absolutely different facts and situations. Rather, in the context of appropriate compensation, reference may be cited to the decision of the Hon'ble Supreme Court in Balram Prasad Vs. Kunal Saha & Ors., Para-175, reported in (2014) 1 SCC 384, wherein the Hon'ble Supreme Court observed that pecuniary estimate has to be made on the service of the housewife, which must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to the husband as a wife as in the case on hand.
From the aforesaid discussion it is established that the OP No. 2-Doctor did not take before Lap-Chole the standard care, diligence and adopt standard practice of advising biochemical and sonographic tests for accurately ascertaining the billiary anatomy and location of the stone and such omission on the part of the OP No. 2-Doctor would not have been committed by a professional man of ordinary skill. Surgery without any biochemical and sonographic tests before surgery falls below the standard of a reasonably competent practitioner in this field and indicates absence of reasonable care, diligence and medical negligence on the part of the OP No. 2-Doctor. Such lapses by a medical practitioner which reasonably competent and a careful practitioner would not have committed indicate medical negligence as was held by Hon'ble Supreme Court in A.S.Mittal Vs. State of Uttar Pradesh, reported in (1989) 3 SCC 223.
The decisions referred to by the OP No. 2-Doctor do not appear to be of any assistance to the OP No. 2-Doctor.
As regards the allegation against the OP No. 3-Doctor, as the Complainant has not filed any Appeal against the order of exoneration by the Ld. District Forum and thereby accepted such decision of exoneration from the charge, so this Commission cannot make out any new case on its part.
The foregoing facts, evidence on records and submissions of both the sides appearing lead us to conclude that the impugned judgment and order, which appears to have been passed on due consideration of the facts, evidence on records and Authorities, deserves modification to the extent that the OP No. 1-Hospital and the OP No. 2-Doctor shall pay to the Complainant compensation of Rs. 4,00,000/- and Rs. 12,00,000/- respectively within 45 days from the date of this order, failing which penal interest @ Rs. 5,000/- per day of delay shall accrue on the said amount till full realization.
Consequently, both the Appeals are dismissed and the impugned judgment and order of the Ld. District Forum is modified to the aforesaid extent.
This judgment will govern both the Appeals bearing No. FA/1035/2014 and FA/1064/2014. [HON'BLE MR. TARAPADA GANGOPADHYAY] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER